EXHIBIT 4.1
================================================================================
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.,
as Depositor,
_______________________________
as Master Servicer,
_______________________________
as Special Servicer,
and
_______________________________
as Trustee,
POOLING AND SERVICING AGREEMENT
Dated as of ____________, ____
$_____________
Commercial Mortgage Pass-Through Certificates
Series __________
================================================================================
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN CALCULATIONS IN RESPECT OF THE
MORTGAGE POOL 2
SECTION 1.01. Defined Terms................................................................................. 2
SECTION 1.02. General Interpretive Principles............................................................... 68
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool.......................................... 69
SECTION 1.04. Application of Default Charges................................................................ 71
SECTION 1.05. Cross-Collateralized Mortgage Loans........................................................... 72
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF REMIC
I REGULAR INTERESTS, REMIC II REGULAR INTERESTS, GROUP X-2 REMIC III REGULAR INTERESTS AND CERTIFICATES 73
SECTION 2.01. Conveyance of Mortgage Loans.................................................................. 73
SECTION 2.02. Acceptance of Mortgage Assets by Trustee...................................................... 76
SECTION 2.03. Certain Repurchases of Mortgage Loans by the Mortgage Loan Sellers............................ 79
SECTION 2.04. Representations and Warranties of the Depositor............................................... 83
SECTION 2.05. Representations and Warranties of the Master Servicer......................................... 85
SECTION 2.06. Representations and Warranties of the Special Servicer........................................ 86
SECTION 2.07. Representations and Warranties of the Trustee................................................. 88
SECTION 2.08. Creation of REMIC I; Issuance of the REMIC I Regular Interests and the REMIC I Residual
Interest; Certain Matters Involving REMIC I and the Loan REMICs............................. 89
SECTION 2.09. Conveyance of REMIC I Regular Interests; Acceptance of REMIC I Regular Interests by Trustee... 93
SECTION 2.10. Creation of REMIC II; Issuance of the REMIC II Regular Interests and the REMIC II Residual
Interest; Certain Matters Involving REMIC II................................................ 93
SECTION 2.11. Conveyance of REMIC II Regular Interests; Acceptance of REMIC II Regular Interests by
Trustee..................................................................................... 95
SECTION 2.12. Creation of REMIC III; Issuance of the REMIC III Regular Interest Certificates, the Group X-2
REMIC III Regular Interests and the REMIC III Residual Interest; Certain Matters Involving
REMIC III................................................................................... 96
SECTION 2.13. Acceptance of Grantor Trusts and Group Terrorism Insurance Policy by Trustee; Issuance of the
Class Y and Class R Certificates............................................................ 101
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND 103
SECTION 3.01. Administration of the Mortgage Loans.......................................................... 103
SECTION 3.02. Collection of Mortgage Loan Payments.......................................................... 105
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve Accounts...... 106
-i-
SECTION PAGE
------- ----
SECTION 3.04. Collection Account, Distribution Account, Interest Reserve Account and Excess Liquidation
Proceeds Account............................................................................ 110
SECTION 3.05. Permitted Withdrawals From the Collection Account, the Distribution Account, the Interest
Reserve Account and the Excess Liquidation Proceeds Account................................. 113
SECTION 3.06. Investment of Funds in the Collection Account, the Servicing Accounts, the Reserve Accounts
and the REO Account......................................................................... 119
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage................. 121
SECTION 3.08. Enforcement of Alienation Clauses............................................................. 125
SECTION 3.09. Realization Upon Defaulted Serviced Mortgage Loans............................................ 127
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files............................................... 130
SECTION 3.11. Master Servicing and Special Servicing Compensation; Interest on and Reimbursement of
Servicing Advances; Payment of Certain Expenses; Obligations of the Trustee and any Fiscal
Agent Regarding Back-up Servicing Advances.................................................. 132
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain Reports......... 139
SECTION 3.13. Annual Statement as to Compliance............................................................. 143
SECTION 3.14. Reports by Independent Public Accountants..................................................... 143
SECTION 3.15. Access to Certain Information................................................................. 144
SECTION 3.16. Title to Administered REO Property; REO Account............................................... 145
SECTION 3.17. Management of Administered REO Property....................................................... 146
SECTION 3.18. Fair Value Option; Sale of Administered REO Properties........................................ 149
SECTION 3.19. Additional Obligations of the Master Servicer and the Special Servicer........................ 155
SECTION 3.20. Modifications, Waivers, Amendments and Consents............................................... 160
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping............ 166
SECTION 3.22. Sub-Servicing Agreements...................................................................... 167
SECTION 3.23. Controlling Class Representative.............................................................. 169
SECTION 3.24. Certain Rights and Powers of the Controlling Class Representative............................. 171
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS 176
SECTION 4.01. Distributions................................................................................. 176
SECTION 4.02. Statements to Certificateholders; Certain Other Reports....................................... 182
SECTION 4.03. P&I Advances.................................................................................. 185
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses.............................. 188
SECTION 4.05. Calculations.................................................................................. 189
ARTICLE V THE CERTIFICATES 190
SECTION 5.01. The Certificates.............................................................................. 190
SECTION 5.02. Registration of Transfer and Exchange of Certificates......................................... 191
SECTION 5.03. Book-Entry Certificates....................................................................... 198
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates............................................. 199
-ii-
SECTION PAGE
------- ----
SECTION 5.05. Persons Deemed Owners......................................................................... 199
SECTION 5.06. Certification by Certificate Owners........................................................... 199
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER 201
SECTION 6.01. Liability of the Depositor, the Master Servicer and the Special Servicer...................... 201
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, the Master Servicer or the Special
Servicer.................................................................................... 201
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicer, and the Special Servicer....... 201
SECTION 6.04. Resignation of Master Servicer and Special Servicer........................................... 202
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the Master Servicer and the Special
Servicer.................................................................................... 203
SECTION 6.06. Designation of Special Servicer by Certain Certificateholders................................. 204
SECTION 6.07. Master Servicer or Special Servicer as Owner of a Certificate................................. 205
ARTICLE VII DEFAULT 207
SECTION 7.01. Events of Default............................................................................. 207
SECTION 7.02. Trustee to Act; Appointment of Successor...................................................... 210
SECTION 7.03. Notification to Certificateholders............................................................ 211
SECTION 7.04. Waiver of Events of Default................................................................... 211
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.......................................... 211
SECTION 7.06. Replacement of [Separately Serviced Mortgage Loan] Special Servicer........................... 212
ARTICLE VIII THE TRUSTEE 213
SECTION 8.01. Duties of the Trustee......................................................................... 213
SECTION 8.02. Certain Matters Affecting the Trustee......................................................... 215
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of Certificates or Mortgage
Loans....................................................................................... 216
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates................................................. 217
SECTION 8.05. Fees and Expenses of the Trustee and any Fiscal Agent; Indemnification of and by the Trustee
and any Fiscal Agent........................................................................ 217
SECTION 8.06. Eligibility Requirements for Trustee.......................................................... 218
SECTION 8.07. Resignation and Removal of Trustee............................................................ 219
SECTION 8.08. Successor Trustee............................................................................. 220
SECTION 8.09. Merger or Consolidation of Trustee............................................................ 221
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................................................. 221
SECTION 8.11. Appointment of Custodians..................................................................... 222
SECTION 8.12. Access to Certain Information................................................................. 222
SECTION 8.13. Appointment of Fiscal Agent................................................................... 223
SECTION 8.14. Advance Security Arrangement.................................................................. 225
SECTION 8.15. Filings with the Securities and Exchange Commission........................................... 225
-iii-
SECTION PAGE
------- ----
ARTICLE IX TERMINATION 233
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans.............................. 233
SECTION 9.02. Additional Termination Requirements........................................................... 235
SECTION 9.03. [Separately Serviced Mortgage Loan] REO Property.............................................. 236
ARTICLE X ADDITIONAL TAX PROVISIONS 237
SECTION 10.01. Tax Administration............................................................................ 237
SECTION 10.02. Depositor, Master Servicer, Special Servicer and Fiscal Agent to Cooperate with Trustee....... 240
ARTICLE XI MISCELLANEOUS PROVISIONS 241
SECTION 11.01. Amendment..................................................................................... 241
SECTION 11.02. Recordation of Agreement; Counterparts........................................................ 242
SECTION 11.03. Limitation on Rights of Certificateholders.................................................... 242
SECTION 11.04. Governing Law................................................................................. 243
SECTION 11.05. Notices....................................................................................... 243
SECTION 11.06. Severability of Provisions.................................................................... 244
SECTION 11.07. Successors and Assigns; Beneficiaries......................................................... 244
SECTION 11.08. Article and Section Headings.................................................................. 244
SECTION 11.09. Notices to and from the Rating Agencies and the Depositor..................................... 244
SECTION 11.10. Notices to Controlling Class Representative................................................... 246
SECTION 11.11. Complete Agreement............................................................................ 246
ARTICLE XII SERVICING OF THE [OTHER CMBS SERIES-SERVICED MORTGAGE LOAN] LOAN GROUP FOLLOWING A [OTHER
CMBS SERIES-SERVICED MORTGAGE LOAN] CHANGE OF SERVICING CONTROL EVENT 247
SECTION 12.01. General....................................................................................... 247
SECTION 12.02. Collection of Loan Payments................................................................... 249
SECTION 12.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts........................ 249
SECTION 12.04. [Separately Serviced Mortgage Loan] Custodial Account......................................... 250
SECTION 12.05. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage................. 251
SECTION 12.06. Enforcement of Due-on-Sale and Due-on-Encumbrance Clauses; Assumption Agreements; Defeasance
Provisions; Other Provisions................................................................ 252
SECTION 12.07. Realization Upon Defaulted Mortgage Loans..................................................... 252
SECTION 12.08. Mortgage Loan Documents....................................................................... 252
SECTION 12.09. Servicing Compensation........................................................................ 252
SECTION 12.10. Reports and Statements........................................................................ 253
SECTION 12.11. Annual Statement as to Compliance; Reports by Independent Public Accountants; Access to
Certain Information......................................................................... 253
SECTION 12.12. [Separately Serviced Mortgage Loan] REO Property.............................................. 253
-iv-
SECTION PAGE
------- ----
SECTION 12.13. Modifications, Waivers, Amendments and Consents; Inspections; Appraisals; Lock-Box Accounts
and Servicing Accounts; and Other Additional Obligations.................................... 254
SECTION 12.14. Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping; Asset
Status Report............................................................................... 254
SECTION 12.15. Sub-Servicing................................................................................. 254
SECTION 12.16. Rights of the Holder of the [Separately Serviced Mortgage Loan] Subordinate Companion Loan.... 255
SECTION 12.17. P&I Advances.................................................................................. 255
SECTION 12.18. Limitation on Liability; Certain Indemnities.................................................. 255
SECTION 12.19. Events of Default............................................................................. 255
SECTION 12.20. Amendments to the [Other CMBS Series PSA]..................................................... 256
-v-
EXHIBITS
EXHIBIT A-1 Form of Class X-1 and Class X-2 Certificates
EXHIBIT A-2 Form of Class A-1, Class A-2, Class A-3, Class B, Class C,
Class D, Class E and Class F
EXHIBIT A-3 Form of Class H, Class J, Class K, Class L, Class M, Class N,
Class P, Class Q, Class S and Class T Certificates
EXHIBIT A-4 Form of Class Y Certificates
EXHIBIT A-5 Form of Class R Certificates
EXHIBIT B-1A Schedule of CGMRC Mortgage Loans
EXHIBIT B-1B Schedule of [Seller No. 2] Mortgage Loans
EXHIBIT B-1C Schedule of [Seller No. 3] Mortgage Loans
EXHIBIT B-1D Schedule of Early Defeasance Mortgage Loans
EXHIBIT B-1E Schedule of Environmentally Insured Mortgage Loans
EXHIBIT B-1F Schedule of Primary Serviced Mortgage Loans
EXHIBIT B-1G Schedule of Class X-2 Reference Rates
EXHIBIT B-1H Schedule of Mortgage Loans Covered by Group Terrorism
Insurance Policy
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT B-3 Form of Custodial Certification
EXHIBIT C Letters of Representations among Depositor and Initial
Depository
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E-1 Form of Statement to Certificateholders
EXHIBIT E-2 CMSA Servicer Watch List Criteria
EXHIBIT E-3 Controlling Class Representative's Reports Checklist
EXHIBIT E-4 Form of Payments Received after Determination Date Report
EXHIBIT E-5 Form of Mortgage Loans Delinquent Report
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-1C Form of Transferor Certificate for Transfers of Interests in
Rule 144A Global Certificates for Classes of Non-Registered
Certificates
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
-vi-
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-2C Form of Transferee Certificate for Transfers of Interests in
Rule 144A Global Certificates for Classes of Non-Registered
Certificates
EXHIBIT F-3A Form of Transferor Certificate for Transfer of the Excess
Servicing Fee Rights
EXHIBIT F-3B Form of Transferee Certificate for Transfer of the Excess
Servicing Fee Rights
EXHIBIT G-1 Form of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
EXHIBIT G-2 Form of Transferee Certificate in connection with ERISA
(Book-Entry Non-Registered Certificates)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of
Class R Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Class R
Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of
Special Servicer
EXHIBIT I-2 Form of Acknowledgment of Proposed Special Servicer
EXHIBIT J Form of Uniform Commercial Code Financing Statement
EXHIBIT K-1 Information Request from Certificateholder or Certificate
Owner
EXHIBIT K-2 Information Request from Prospective Investor
EXHIBIT L Schedule of Designated Sub-Servicers
EXHIBIT M Form of S&P Defeasance Certification
-vii-
This Pooling and Servicing Agreement, is dated and effective
as of __________, ____, among CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. as
Depositor, __________ as Master Servicer and __________ as Special Servicer, and
__________ as Trustee.
PRELIMINARY STATEMENT:
Citigroup Global Markets Realty Corp. (together with its
successors in interest, "CGMRC") has sold, in its capacity as a Mortgage Loan
Seller (as defined herein), to Citigroup Commercial Mortgage Securities Inc.
(together with its successors in interest, the "Depositor"), pursuant to the
Mortgage Loan Purchase Agreement dated as of __________, ____ (as such may from
time to time hereafter be amended, modified, supplemented and/or restated, the
"CGMRC Mortgage Loan Purchase Agreement"), between CGMRC and the Depositor,
those mortgage loans initially identified on the schedule attached hereto as
Exhibit B-1A (such mortgage loans, the "CGMRC Mortgage Loans").
[Seller No. 2] (together with its successors in interest,
"[Seller No. 2]") has sold, in its capacity as a Mortgage Loan Seller, to the
Depositor, pursuant to the Mortgage Loan Purchase Agreement dated as of
__________, ____ (as such may from time to time hereafter be amended, modified,
supplemented and/or restated, the "[Seller No. 2] Mortgage Loan Purchase
Agreement"), between [Seller No. 2] and the Depositor, those mortgage loans
initially identified on the schedule attached hereto as Exhibit B-1B (such
mortgage loans, the "[Seller No. 2] Mortgage Loans").
[Seller No. 3] (together with its successors in interest,
"[Seller No. 3]") has sold, in its capacity as a Mortgage Loan Seller, to the
Depositor, pursuant to the Mortgage Loan Purchase Agreement dated as of
__________, ____ (as such may from time to time hereafter be amended, modified,
supplemented and/or restated, the "[Seller No. 3] Mortgage Loan Purchase
Agreement"), between [Seller No. 3] and the Depositor, those mortgage loans
initially identified on the schedule attached hereto as Exhibit B-1C (such
mortgage loans, the "[Seller No. 3] Mortgage Loans").
The Depositor desires, among other things, to: (i) establish a
trust fund, consisting primarily of the CGMRC Mortgage Loans, the [Seller No. 2]
Mortgage Loans, the [Seller No. 3] Mortgage Loans and certain related rights,
funds and property; (ii) cause the issuance of mortgage pass-through
certificates in multiple classes, which certificates will, in the aggregate,
evidence the entire beneficial ownership interest in such trust fund; and (iii)
provide for the servicing and administration of the mortgage loans and other
assets that from time to time constitute part of such trust fund.
__________ (together with its successors in interest,
"______") desires to act as "Trustee" hereunder; __________ (together with its
successors in interest, "______") desires to act as "Master Servicer" hereunder;
and __________. (together with its successors in interest, "______") desires to
act as Special Servicer hereunder.
In consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Section 1.01, subject to modification in accordance with
Section 1.05.
"30/360 Basis" shall mean the accrual of interest calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan" shall mean a Mortgage Loan that accrues
interest on a 30/360 Basis.
"Acceptable Insurance Default" shall mean, with respect to any
Serviced Mortgage Loan, a default under the related Mortgage Loan Documents
arising by reason of any failure on the part of the related Borrower to maintain
specific insurance coverage with respect to, or an all-risk casualty insurance
policy that does not specifically exclude, terrorist or similar acts, and/or any
failure on the part of the related Borrower to maintain insurance coverage with
respect to terrorist or similar acts upon terms no less favorable than those in
place as of _____________, as to which default the Master Servicer and the
Special Servicer may forbear taking any enforcement action provided that each of
the following relevant conditions are satisfied: (a) the Master Servicer has
determined, in its reasonable judgment, based on inquiry consistent with the
Servicing Standard, that either (i) such insurance is not available at
commercially reasonable rates and that such hazards are not at the time commonly
insured against for properties similar to the related Mortgaged Property and
located in or around the region in which such related Mortgaged Property is
located, or (ii) such insurance is not available at any rate; and (b) if the
Stated Principal Balance of such Mortgage Loan is in excess of $__________ (or
any lesser amount that the Master Servicer deems appropriate), the Master
Servicer has obtained the concurrence of the Special Servicer with respect to
the Master Servicer's determination referred to in the immediately preceding
clause (a); and (c) if the Cut-off Date Principal Balance of such Mortgage Loan
is in excess of $___________, the Special Servicer has determined, in its
reasonable judgment, based on information and analysis provided to it by the
Master Servicer, that forbearance in the taking of any enforcement action with
respect to the subject default clearly and convincingly is in accordance with
the Servicing Standard (it being understood and agreed that in making such
determination the Special Servicer shall consider as the primary factor the
specific insurance terms of the Mortgage Loan Documents). The Special Servicer
shall notify the Rating Agencies upon making the determination described in
clause (c) above with respect to any Mortgage Loan.
"Accounts" shall mean, collectively, the Distribution Account,
the Excess Liquidation Proceeds Account, the Interest Reserve Account, the
Collection Account, the REO Account, the Servicing Accounts and the Reserve
Accounts.
"Acquisition Date" shall mean, with respect to any REO
Property, the first day on which such REO Property is considered to be acquired
by (or, if applicable, in the case of the [Separately
-2-
Serviced Mortgage Loan] REO Property, on behalf of, among others) the Trust
within the meaning of Treasury regulation section 1.856-6(b)(1), which is the
first day on which the Trust is treated as the owner of such REO Property or any
interest therein for federal income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest
calculated on the basis of the actual number of days elapsed during any calendar
month (or other applicable recurring accrual period) in a year assumed to
consist of 360 days.
"Actual/360 Mortgage Loan" shall mean a Mortgage Loan that
accrues interest on an Actual/360 Basis.
"Additional Collateral" shall mean any non-real property
collateral (including any Letter of Credit and Reserve Funds) pledged and/or
delivered by the related Borrower and held by the mortgagee to secure payment on
any Mortgage Loan.
"Additional Master Servicing Compensation" shall have the
meaning assigned thereto in Section 3.11(b).
"Additional Special Servicing Compensation" shall have the
meaning assigned thereto in Section 3.11(d).
"Additional Trust Fund Expense" shall mean any expense
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 any Class of
REMIC III Regular Interest Certificates receiving less than the total of their
Current Interest Distribution Amount, Carryforward Interest Distribution Amount
and Principal Distribution Amount for any Distribution Date.
"Additional Yield Amount" shall have the meaning assigned
thereto in Section 4.01(d).
"Adjusted REMIC II Remittance Rate" shall mean:
(a) with respect to REMIC II Regular Interest A-1, for
any Interest Accrual Period, ____% per annum;
(b) with respect to REMIC II Regular Interest A-2A, for
any Interest Accrual Period, ____% per annum;
(c) with respect to REMIC II Regular Interest A-2B, for
any Interest Accrual Period up to and including the ________ ____
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) the Class X-2 Reference Rate for such Interest Accrual Period,
and for any Interest Accrual Period thereafter, ____% per annum;
(d) with respect to REMIC II Regular Interest A-3, for
any Interest Accrual Period up to and including the ________ ____
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) the Class X-2 Reference Rate for such Interest Accrual
Period, and for any Interest Accrual Period thereafter, ____% per
annum;
-3-
(e) with respect to REMIC II Regular Interest B, for any
Interest Accrual Period up to and including the ________ ____ Interest
Accrual Period, a rate per annum equal to the lesser of (i) the related
REMIC II Remittance Rate for such Interest Accrual Period and (ii) the
Class X-2 Reference Rate for such Interest Accrual Period, and for any
Interest Accrual Period thereafter, the lesser of (i) the related REMIC
II Remittance Rate for such Interest Accrual Period and (ii) ____% per
annum;
(f) with respect to REMIC II Regular Interest C, for any
Interest Accrual Period up to and including the ________ ____ Interest
Accrual Period, a rate per annum equal to the lesser of (i) the related
REMIC II Remittance Rate for such Interest Accrual Period and (ii) the
Class X-2 Reference Rate for such Interest Accrual Period, and for any
Interest Accrual Period thereafter, the lesser of (i) the related REMIC
II Remittance Rate for such Interest Accrual Period and (ii) ____% per
annum;
(g) with respect to REMIC II Regular Interest D, for any
Interest Accrual Period up to and including the _________ ____ Interest
Accrual Period, a rate per annum equal to the lesser of (i) the related
REMIC II Remittance Rate for such Interest Accrual Period and (ii) the
Class X-2 Reference Rate for such Interest Accrual Period, and for any
Interest Accrual Period thereafter, the lesser of (i) the related REMIC
II Remittance Rate for such Interest Accrual Period and (ii) ____% per
annum;
(h) with respect to REMIC II Regular Interest E, for any
Interest Accrual Period up to and including the ________ ____ Interest
Accrual Period, a rate per annum equal to the lesser of (i) the related
REMIC II Remittance Rate for such Interest Accrual Period and (ii) the
Class X-2 Reference Rate for such Interest Accrual Period, and for any
Interest Accrual Period thereafter, the lesser of (i) the related REMIC
II Remittance Rate for such Interest Accrual Period and (ii) ____% per
annum;
(i) with respect to REMIC II Regular Interest F, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) ____% per annum;
(j) with respect to REMIC II Regular Interest H, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) ____% per annum;
(k) with respect to REMIC II Regular Interest J, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) ____% per annum;
(l) with respect to REMIC II Regular Interest K, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) ____% per annum; and
(m) with respect to each of REMIC II Regular Interests
L, M, N, P, Q, S and T for any Interest Accrual Period, a rate per
annum equal to the lesser of (i) the related REMIC II Remittance Rate
for such Interest Accrual Period and (ii) ____% per annum.
-4-
"Administered REO Property" shall mean any REO Property other
than, if applicable, the [Separately Serviced Mortgage Loan] REO Property.
"Administrative Fee Rate" shall mean, with respect to each
Mortgage Loan (and any successor REO Loan), the sum of the related Master
Servicing Fee Rate and the Trustee Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Advance Interest" shall mean the interest accrued on any
Advance at the Reimbursement Rate, which is payable to the party hereto that
made that Advance, all in accordance with Section 3.11(g) or Section 4.03(d), as
applicable, and Section 3.05(a).
"Advance Security Arrangement" shall have the meaning assigned
thereto in Section 8.14.
"Adverse Grantor Trust Event" shall mean either: (i) any
impairment of the status of either Grantor Trust Pool as a Grantor Trust; or
(ii) the imposition of a tax upon either Grantor Trust Pool or any of its assets
or transactions.
"Adverse Rating Event" shall mean, with respect to any Class
of Rated Certificates and each Rating Agency that has assigned a rating thereto,
as of any date of determination, the qualification, downgrade or withdrawal of
the rating then assigned to such Class of Rated Certificates by such Rating
Agency (or the placing of such Class of Rated Certificates on "negative credit
watch" status in contemplation of any such action with respect thereto).
"Adverse REMIC Event" shall mean either: (i) any impairment of
the status of any REMIC Pool as a REMIC; or (ii) except as permitted by Section
3.17(a), the imposition of a tax upon any REMIC Pool or any of its assets or
transactions (including the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions set forth in Section 860G(d)
of the Code).
"Affiliate" shall mean, with respect to any specified Person,
any other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement,
as it may be amended, modified, supplemented or restated following the Closing
Date.
"A.M. Best" shall mean A.M. Best Company or its successor in
interest.
"Annual Accountants' Report" shall have the meaning assigned
thereto in Section 3.14.
"Annual Performance Certification" shall have the meaning
assigned thereto in Section 3.13.
-5-
"Anticipated Repayment Date" shall mean, with respect to any
ARD Mortgage Loan, the date specified in the related Mortgage Note, as of which
Post-ARD Additional Interest shall begin to accrue on such Mortgage Loan, which
date is prior to the Stated Maturity Date for such Mortgage Loan.
"Appraisal" shall mean, with respect to any Mortgaged Property
or REO Property as to which an appraisal is required to be performed pursuant to
the terms of this Agreement, a narrative appraisal complying with USPAP (or, in
the case of a Mortgage Loan or an REO Loan with a Stated Principal Balance as of
the date of such appraisal of $2,000,000 or less, at the Special Servicer's
option, either a limited appraisal and a summary report or an internal valuation
prepared by the Special Servicer) that (i) indicates the "market value" of the
subject property (within the meaning of 12 CFR Section 225.62(g)) and (ii) is
conducted by a Qualified Appraiser (except that, in the case of a Mortgage Loan
or an REO Loan with a Stated Principal Balance as of the date of such appraisal
of $2,000,000 or less, the appraiser may be an employee of the Special Servicer,
which employee need not be a Qualified Appraiser but shall have experience in
commercial and/or multifamily properties, as the case may be, and possess
sufficient knowledge to value such a property).
"Appraisal Reduction Amount" shall mean, with respect to any
Required Appraisal Loan, an amount (calculated, in consultation with the
Controlling Class Representative, by the Special Servicer as of the
Determination Date immediately following the later of the date on which the most
recent relevant Appraisal (or update to an Appraisal) acceptable for purposes of
Section 3.19(c) hereof was obtained or conducted by the Special Servicer
pursuant to this Agreement and the date of the most recent Appraisal Trigger
Event with respect to such Required Appraisal Loan) equal to the excess, if any,
of:
(1) the sum of (a) the Stated Principal Balance of such
Required Appraisal Loan as of such Determination Date, (b) to the
extent not previously advanced by or on behalf of the Master Servicer,
the Trustee or any Fiscal Agent, all unpaid interest (other than
Default Interest and, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, Post-ARD Additional Interest) accrued on
such Required Appraisal Loan through the most recent Due Date prior to
such Determination Date, (c) all unpaid Special Servicing Fees accrued
in respect of such Required Appraisal Loan, (d) all related
unreimbursed Advances made by or on behalf of the Master Servicer, the
Special Servicer, the Trustee or any Fiscal Agent in respect of such
Required Appraisal Loan, together with all unpaid Advance Interest
accrued on such Advances, and (e) all currently due but unpaid real
estate taxes and assessments, insurance premiums and, if applicable,
ground rents in respect of the related Mortgaged Property or REO
Property; over
(2) the sum of (x) the excess, if any, of (i) 90% of the
Appraised Value of the related Mortgaged Property or REO Property, as
applicable, as determined by the most recent relevant Appraisal (or
update to an Appraisal) acceptable for purposes of Section 3.19(c)
hereof, over (ii) the amount of any obligation(s) secured by any liens
on such Mortgaged Property or REO Property, as applicable, that are
prior to the lien of such Required Appraisal Loan, (y) any Escrow
Payments and Reserve Funds held by the Master Servicer or the Special
Servicer with respect to such Required Appraisal Loan, and (z) the
amount of any Letter of Credit that constitutes additional security for
the Required Appraisal Loan and that may be used to reduce the
principal balance thereof.
-6-
Notwithstanding the foregoing, if (i) an Appraisal Trigger
Event occurs with respect to any Serviced Mortgage Loan, (ii) either (A) no
Appraisal (or update to an Appraisal) has been obtained or conducted, as
applicable, in accordance with Section 3.19(c), with respect to the related
Mortgaged Property or REO Property, as the case may be, during the 12-month
period prior to the date of such Appraisal Trigger Event or (B) there shall have
occurred since the date of the most recent Appraisal (or update to an Appraisal)
a material change in the circumstances surrounding the related Mortgaged
Property or REO Property, as the case may be, that would, in the Special
Servicer's judgment, materially affect the value of the property, and (iii) no
new Appraisal is obtained or conducted, as applicable, in accordance with
Section 3.19(c), by the earlier of the 60th day after such Appraisal Trigger
Event and the date on which the subject Mortgage Loan first becomes 120 days
delinquent as to any Monthly Payment (other than any Balloon Payment, for which
the applicable delinquency period is either (X) 150 days if the related Borrower
continues to make the Assumed Monthly Payment and a refinancing commitment
reasonably acceptable to the Special Servicer has been delivered or (Y) 120 days
otherwise), then (x) until such new Appraisal is obtained or conducted, as
applicable, in accordance with Section 3.19(c), the Appraisal Reduction Amount
shall equal 25% of the Stated Principal Balance of such Required Appraisal Loan,
and (y) upon receipt or performance, as applicable, in accordance with Section
3.19(c), of such Appraisal by the Special Servicer, the Appraisal Reduction
Amount for such Required Appraisal Loan will be recalculated by the Special
Servicer in accordance with the preceding sentence of this definition.
In connection with the foregoing, each Cross-Collateralized
Mortgage Loan that is part of a single Cross-Collateralized Group shall be
treated separately for purposes of calculating an Appraisal Reduction Amount.
"Appraisal Trigger Event" shall mean, with respect to any
Serviced Mortgage Loan, any of the following events:
(i) such Mortgage Loan becomes a Modified Mortgage Loan
(other than solely as a result of an extension of the maturity date for
less than six (6) months);
(ii) any Monthly Payment with respect to such Mortgage
Loan remains unpaid for 60 days past the Due Date for such payment (or,
in the case of a delinquent Balloon Payment, either for 90 days past
the Due Date for such Balloon Payment or, if the related Borrower has
delivered a refinancing commitment reasonably acceptable to the Special
Servicer and is continuing to make the Assumed Monthly Payment for such
Mortgage Loan, for such longer period, not to exceed 150 days beyond
the Due Date for such Balloon Payment, during which the refinancing
would occur);
(iii) any other material payment due under the related
Mortgage Loan Documents remains unpaid for 60 days past the date on
which that payment was first required to be made;
(iv) the Borrower under such Mortgage Loan becomes the
subject of bankruptcy, insolvency or similar proceedings and those
proceedings remain undismissed and undischarged for 60 days;
(v) a receiver is appointed with respect to the related
Mortgaged Property and continues in such capacity for 60 days; or
-7-
(vi) the related Mortgaged Property becomes an REO
Property.
"Appraised Value" shall mean, with respect to each Mortgaged
Property or REO Property, the appraised value thereof (as is) based upon the
most recent Appraisal (or update thereof), if any, obtained or conducted, as
appropriate, pursuant to this Agreement; provided, however, that, for purposes
of this Agreement, no party hereto may rely on an Appraisal (or update thereof)
that is more than 12 months old (it being understood and agreed that this
provision is not intended by itself to impose any separate obligation on any
party hereto to periodically update Appraisals).
"ARD Mortgage Loan" shall mean a Mortgage Loan that provides
for the accrual of Post-ARD Additional Interest thereon if such Mortgage Loan is
not paid in full on or prior to its Anticipated Repayment Date.
"Asset Status Report" shall have the meaning assigned thereto
in Section 3.24(a).
"Assignment of Leases" shall mean, with respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
document or instrument executed by the related Borrower in connection with the
origination of the related Mortgage Loan, as such assignment may be amended,
modified, renewed or extended through the date hereof and from time to time
hereafter.
"Assumed Monthly Payment" shall mean:
(a) with respect to any Balloon Mortgage Loan that is
delinquent in respect of its Balloon Payment beyond the Determination
Date immediately following its scheduled maturity date (as such date
may be extended in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or by reason of a
modification, waiver or amendment granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20), for that
scheduled maturity date and for each subsequent Due Date as of which
such Mortgage Loan remains outstanding and part of the Trust Fund (but
on which no Monthly Payment is scheduled to be due in respect of such
Mortgage Loan, other than the delinquent Balloon Payment), the
scheduled monthly payment of principal and/or interest deemed to be due
with respect to such Mortgage Loan on such Due Date equal to the amount
(exclusive of Default Interest) that would have been due in respect
thereof on such Due Date if such Mortgage Loan had been required to
continue to accrue interest in accordance with its terms, and to pay
principal in accordance with the amortization schedule (if any), in
effect immediately prior to, and without regard to the occurrence of,
such maturity date;
(b) with respect to any REO Loan (other than any
[Separately Serviced Mortgage Loan] REO Loan), for any Due Date as of
which the related REO Property remains part of the Trust Fund, the
scheduled monthly payment of principal and/or interest deemed to be due
in respect thereof on such Due Date equal to the Monthly Payment (or,
in the case of a Balloon Mortgage Loan described in clause (a) of this
definition, the Assumed Monthly Payment) that was due (or deemed due)
in respect of the related Mortgage Loan on the last Due Date prior to
its becoming an REO Loan; and
(c) with respect to the [Separately Serviced Mortgage
Loan] and any [Separately Serviced Mortgage Loan] REO Loan, an "Assumed
Scheduled Payment" under the [Other CMBS Series PSA].
-8-
"ASTM" shall mean the American Society for Testing and
Materials.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by
its original terms or by virtue of any modification entered into as of the
Closing Date provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, a Balloon Payment
is due on its Stated Maturity Date.
"Balloon Payment" shall mean any Monthly Payment payable on a
Mortgage Loan at scheduled maturity that (i) is at least three times as large as
the normal Monthly Payment due on such Mortgage Loan and (ii) includes a
principal component equal to at least 5% of the original principal balance of
such Mortgage Loan.
"Bankruptcy Code" shall mean the federal Bankruptcy Code, as
amended from time to time (Title 11 of the United States Code).
"Base Prospectus" shall mean that certain prospectus dated
__________, ____, relating to trust funds established by the Depositor and
publicly offered mortgage pass-through certificates evidencing interests
therein.
"Book-Entry Certificate" shall mean any Certificate registered
in the name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate registered in the name of the Depository or its
nominee.
"Borrower" shall mean, individually and collectively, as the
context may require, the obligor or obligors under a Mortgage Loan, including
any Person that has not signed the related Mortgage Note but owns an interest in
the related Mortgaged Property, which interest has been encumbered to secure
such Mortgage Loan.
"Breach" shall mean, with respect to any Mortgage Loan, any
breach of a representation or warranty made by a Mortgage Loan Seller pursuant
to Section 4(b) of the related Mortgage Loan Purchase Agreement.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in New York, New York, any city in
which any of the Primary Servicing Offices of the Master Servicer and/or the
Special Servicer are located, or the city or cities in which the Corporate Trust
Office(s) of the Trustee are located, are authorized or obligated by law or
executive order to remain closed.
"Carryforward Interest Distribution Amount" shall have:
(a) with respect to any REMIC I Regular Interest, for any
Distribution Date, the meaning assigned thereto in Section 2.08(g);
(b) with respect to any REMIC II Regular Interest, for
any Distribution Date, the meaning assigned thereto in Section 2.10(g);
-9-
(c) with respect to any Class of REMIC III Regular
Interest Certificates, for any Distribution Date, the meaning assigned
thereto in Section 2.12(g); and
(d) with respect to any Group X-2 REMIC III Regular
Interest, for any Distribution Date, the meaning assigned thereto in
Section 2.12(g).
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the Depositor's Series
__________ Commercial Mortgage Pass-Through Certificates, as executed by the
Trustee and authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Factor" shall mean, with respect to any Class of
REMIC III Regular Interest Certificates, as of any date of determination, a
fraction, expressed as a decimal carried to eight places, the numerator of which
is the related Class Principal Balance or Class Notional Amount, as the case may
be, then outstanding, and the denominator of which is the related Class
Principal Balance or Class Notional Amount, as the case may be, outstanding as
of the Closing Date.
"Certificate Notional Amount" shall mean, with respect to any
Interest Only Certificate, as of any date of determination, the then notional
principal amount on which such Certificate accrues interest, equal to the
product of (a) the then Certificate Factor for the Class of Interest Only
Certificates to which such Certificate belongs, multiplied by (b) the amount
specified on the face of such Certificate as the initial Certificate Notional
Amount thereof.
"Certificate Owner" shall mean, with respect to any Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to
any Principal Balance Certificate, as of any date of determination, the then
outstanding principal amount of such Certificate equal to the product of (a) the
then Certificate Factor for the Class of Principal Balance Certificates to which
such Certificate belongs, multiplied by (b) the amount specified on the face of
such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar" shall mean
the register maintained and the registrar appointed or otherwise acting pursuant
to Section 5.02.
"Certificateholder" or "Holder" shall mean the Person in whose
name a Certificate is registered in the Certificate Register, provided, however,
that: (i) neither a Disqualified Organization nor a Non-United States Tax Person
shall be a "Holder" of, or a "Certificateholder" with respect to, a Class R
Certificate for any purpose hereof; and (ii) solely for purposes of giving any
consent, approval, direction or waiver pursuant to this Agreement that
specifically relates to the rights, duties and/or obligations hereunder of any
of the Depositor, the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent in its respective capacity as such (other than any consent,
approval or waiver contemplated by any of Sections 3.23, 3.24 and 6.06), any
Certificate registered in the name of such party or in the name of any Affiliate
thereof shall be deemed not to be outstanding, and the Voting
-10-
Rights to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any such
consent, approval or waiver that specifically relates to such party has been
obtained. The Certificate Registrar shall be entitled to request and
conclusively rely upon a certificate of the Depositor, 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" or "Holders" shall reflect the rights of Certificate Owners
only insofar as they may indirectly exercise such rights through the Depository
and the Depository Participants (except as otherwise specified herein), it being
herein acknowledged and agreed that the parties hereto shall be required to
recognize as a "Certificateholder" or "Holder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the
Statement to Certificateholders and the CMSA Investor Reporting Package.
"CGMI" shall mean Citigroup Global Markets Inc. or its
successors in interest.
"CGMRC" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"CGMRC Mortgage Loan Purchase Agreement" shall have the
meaning assigned thereto in the Preliminary Statement to this Agreement.
"CGMRC Mortgage Loans" shall have the meaning assigned thereto
in the Preliminary Statement to this Agreement.
"Class" shall mean, collectively, all of the Certificates
bearing the same alphabetic or alphanumeric class designation and having the
same payment terms. The respective Classes of Certificates are designated in
Section 5.01(a).
"Class A Certificate" shall mean any of the Class A-1, Class
A-2 and/or Class A-3 Certificates.
"Class A-1 Certificate" shall mean any of the Certificates
that collectively constitute the Class bearing the class designation "A-1".
"Class A-2 Certificate" shall mean any of the Certificates
that collectively constitute the Class bearing the class designation "A-2".
"Class A-3 Certificate" shall mean any of the Certificates
that collectively constitute the Class bearing the designation "A-3".
"Class B Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "B".
"Class C Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "C".
-11-
"Class D Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "D".
"Class E Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "E".
"Class F Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "F".
"Class H Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "H".
"Class J Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "J".
"Class K Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "K".
"Class L Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "L".
"Class M Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "M".
"Class N Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "N".
"Class Notional Amount" shall mean the aggregate hypothetical
or notional amount on which any Class of Interest Only Certificates accrues
interest from time to time, as calculated in accordance with Section 2.12(e).
"Class P Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "P".
"Class Principal Balance" shall mean the aggregate principal
balance outstanding from time to time of any Class of Principal Balance
Certificates, as calculated in accordance with Section 2.12(e).
"Class Q Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "Q".
"Class R Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "R".
"Class S Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "S".
"Class T Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "T".
-12-
"Class X-1 Certificate" shall mean any of the Certificates
that collectively constitute the Class bearing the class designation "X-1".
"Class X-2 Certificate" shall mean any of the Certificates
that collectively constitute the Class bearing the class designation "X-2".
"Class X-1 Portion" shall mean:
(a) when used with respect to the Interest Accrual Amount
in respect of any REMIC II Regular Interest for any Interest Accrual
Period, the portion of such Interest Accrual Amount that is equal to
the product of (i) the entire such Interest Accrual Amount, multiplied
by (ii) a fraction (not less than zero or greater than one), the
numerator of which is the excess, if any, of the REMIC II Remittance
Rate with respect to such REMIC II Regular Interest for such Interest
Accrual Period, over the Adjusted REMIC II Remittance Rate with respect
to such REMIC II Regular Interest for such Interest Accrual Period, and
the denominator of which is the REMIC II Remittance Rate with respect
to such REMIC II Regular Interest for such Interest Accrual Period;
(b) when used with respect to the Current Interest
Distribution Amount in respect of any REMIC II Regular Interest for any
Distribution Date, the portion of such Current Interest Distribution
Amount that is equal to (i) the Class X-1 Portion of the Interest
Accrual Amount with respect to such REMIC II Regular Interest for the
related Interest Accrual Period, reduced (to not less than zero) by
(ii) the product of (A) any portion of the Net Aggregate Prepayment
Interest Shortfall for such Distribution Date that is allocable to such
REMIC II Regular Interest in accordance with Section 2.10(g),
multiplied by (B) a fraction, the numerator of which is equal to the
Class X-1 Portion of the Interest Accrual Amount with respect to such
REMIC II Regular Interest for the related Interest Accrual Period, and
the denominator of which is equal to the entire Interest Accrual Amount
with respect to such REMIC II Regular Interest for the related Interest
Accrual Period; and
(c) when used with respect to the Carryforward Interest
Distribution Amount in respect of any REMIC II Regular Interest for any
Distribution Date, the portion of such Carryforward Interest
Distribution Amount that is equal to the excess, if any, of (i) the
aggregate of the Class X-1 Portions of all Current Interest
Distribution Amounts with respect to such REMIC II Regular Interest for
all prior Distribution Dates, if any, over (ii) the aggregate amount of
interest deemed distributed to REMIC III with respect to such REMIC II
Regular Interest on all such prior Distribution Dates, if any, pursuant
to the first sentence of Section 4.01(k).
"Class X-2 Reference Rate" shall mean, with respect to any
Interest Accrual Period through and including the ________ ____ Interest Accrual
Period, the rate per annum specified for such Interest Accrual Period on Exhibit
B-1G.
"Class Y Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the class designation "Y".
"Class Y Sub-Account" shall mean a sub-account of the
Distribution Account established pursuant to Section 3.04(b), which sub-account
shall constitute an asset of the Trust Fund and Grantor Trust Y, but not an
asset of any REMIC Pool.
-13-
"Clearstream" shall mean Clearstream International or any
successor.
"Closing Date" shall mean __________, ____.
"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 Controlling Class Representative.
"CMSA Bond Level File" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Bond Level File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Bond Level File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Collateral Summary File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Collateral
Summary File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Trustee.
"CMSA Comparative Financial Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Comparative Financial Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Comparative
Financial Status Report" available as of the Closing Date on the CMSA Website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable, and in any event, setting forth, among other things, (A) the most
recent property inspection date for each Mortgaged Property to be covered
thereby and (B) in each instance based on (1) the most recent rent roll in the
possession or under the control of the Master Servicer and (2) to the extent in
the possession or under the control of the Master Servicer (in descending order
of desirability), (a) trailing 12-months
-14-
normalized financial information, or (b) if the information in clause (a) is not
available, normalized financial information based on no less than nine months of
operating statements (annualized), or (c) if the information in clauses (a) and
(b) is not available, the most recent current year-to-date financial information
(annualized): (x) the occupancy and debt service coverage ratio for each
Mortgage Loan or Mortgaged Property, as applicable, to be covered thereby; and
(y) the revenue, expense, net operating income and net cash flow for each
Mortgaged Property to be covered thereby. For the purposes of the production by
the Master Servicer or the Special Servicer of any such report that is required
to state information with respect to any Mortgage Loan for any period prior to
the Cut-off Date, the Master Servicer or the Special Servicer, as the case may
be, may conclusively rely (without independent verification), absent manifest
error, on information provided to it by the related Mortgage Loan Seller, by the
related Borrower or (x) in the case of such a report produced by the Master
Servicer, by the Special Servicer (if other than the Master Servicer or an
Affiliate thereof) and (y) in the case of such a report produced by the Special
Servicer, by the Master Servicer (if other than the Special Servicer or an
Affiliate thereof).
"CMSA Delinquent Loan Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Delinquent Loan
Status Report" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Financial File" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Financial File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Financial File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"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 as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Historical Liquidation Report" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Historical Loan Modification Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Historical Loan Modification Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and, insofar as it
requires the presentation
-15-
of information in addition to that called for by the form of the "Historical
Loan Modification Report" available as of the Closing Date on the CMSA Website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following six electronic files: (i) CMSA Loan Set-Up 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 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 a 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 as may from time to time be recommended by the CMSA for commercial
mortgage-backed securities transactions generally and, insofar as it requires
the presentation of information in addition to that called for by the form of
the "Loan Periodic Update File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable, and the Trustee.
"CMSA Loan Set-Up File" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Loan Set-Up File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Loan Set-Up File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable, and the Trustee.
"CMSA NOI Adjustment Worksheet" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "NOI Adjustment Worksheet" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "NOI Adjustment
Worksheet" available as of the Closing Date on the CMSA Website, is acceptable
to the Master Servicer or the Special Servicer, as applicable, and in any event,
shall present the computations made in accordance with the methodology described
in such form to "normalize" the full year net operating income, net cash flow
and debt service coverage numbers used in the other reports required by this
Agreement.
"CMSA Operating Statement Analysis Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Operating Statement Analysis Report" available as of
the Closing Date on the CMSA Website or in such other form for the presentation
of such information and containing such additional information as may from
-16-
time to time be recommended by the CMSA for commercial mortgage-backed
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the form of the "Operating
Statement Analysis Report" available as of the Closing Date on the CMSA Website,
is reasonably acceptable to the Master Servicer.
"CMSA Property File" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Property File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Property File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"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 such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "REO Status Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Servicer Watch List" shall mean, for any Determination
Date, a report substantially in the form of, and containing the information
called for in, the downloadable form of the "Servicer Watch List" available as
of the Closing Date on the CMSA Website, or in such other form for the
presentation of such information and containing such additional information as
may from time to time be recommended by the CMSA for commercial mortgage-backed
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the form of the "Servicer Watch
List" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable, and in
any event, which report shall identify all Performing Serviced Mortgage Loans
that are required by the criteria set forth on Exhibit E-2; provided that, upon
adoption by the CMSA of a standard format and criteria, such format and criteria
shall be used for this report instead of Exhibit E-2.
"CMSA Website" shall mean the CMSA's Website located at
"xxx.xxxxxxxx.xxx" or such other primary website as the CMSA may establish for
dissemination of its report forms.
"Code" shall mean the Internal Revenue Code of 1986 and
regulations promulgated thereunder, including proposed regulations to the extent
that, by reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Trust or the Certificates.
"Collection Account" shall mean the segregated account or
accounts created and maintained by the Master Servicer pursuant to the first
paragraph of Section 3.04(a), in trust for the Certificateholders, which shall
be entitled "__________ [or the name of any successor master servicer], as
Master Servicer on behalf of __________. [or the name of any successor trustee],
as Trustee, in trust
-17-
for the registered holders of Citigroup Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series __________, Collection
Account".
"Collection Period" shall mean, with respect to any
Distribution Date, the period commencing immediately following the Determination
Date in the calendar month preceding the month in which such Distribution Date
occurs (or, in the case of the initial Distribution Date, commencing as of the
Closing Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date occurs; provided that, if any Collection
Period would be different if the definition of "Business Day" used in the [Other
CMBS Series PSA] were in effect under this Agreement, then references herein to
"Collection Period" shall, to the extent (but only to the extent) relevant to
amounts due or collected, or losses and other shortfalls incurred, on the
[Separately Serviced Mortgage Loan], any [Separately Serviced Mortgage Loan] REO
Loan or any [Separately Serviced Mortgage Loan] REO Property, mean the period
described above in this definition determined using the definition of "Business
Day" under the [Other CMBS Series PSA].
"Commission" shall mean the Securities and Exchange Commission
or any successor thereto.
"Compensating Interest Payment" shall mean, with respect to
any Distribution Date, any payment made by the Master Servicer pursuant to
Section 3.19(a) to cover any Prepayment Interest Shortfalls incurred during the
related Collection Period (or, in the case of the [Separately Serviced Mortgage
Loan], incurred in connection with the receipt of a Principal Prepayment or
other early collection of principal in the form of Insurance Proceeds and/or
Condemnation Proceeds, that is distributable to Certificateholders on such
Distribution Date).
"Condemnation Proceeds" shall mean all cash amounts received
by the Master Servicer or the Special Servicer (including, in the case of the
[Separately Serviced Mortgage Loan] Mortgaged Property, from the [Separately
Serviced Mortgage Loan] Master Servicer or the [Separately Serviced Mortgage
Loan] Special Servicer) in connection with the taking of all or a part of a
Mortgaged Property by exercise (or threatened exercise) of the power of eminent
domain or condemnation, exclusive of any portion thereof required to be released
to the related Borrower or any other third party in accordance with applicable
law and/or the terms and conditions of the related Mortgage Note and Mortgage or
any document to which the related Mortgage Note and Mortgage are subject;
provided that, in the case of the [Separately Serviced Mortgage Loan] or any
[Separately Serviced Mortgage Loan] REO Property, "Condemnation Proceeds" shall
be limited to only such proceeds of the type described above in this definition
as are remitted to the Master Servicer on behalf of the Trust under a
[Separately Serviced Mortgage Loan] Servicing Agreement or, if Article XII is in
effect, as are transferred from the [Separately Serviced Mortgage Loan]
Custodial Account to the Collection Account pursuant to Section 12.04(b).
"Controlling Class" shall mean, as of any date of
determination, the Class of Principal Balance Certificates with the lowest
payment priority pursuant to Sections 4.01(a) and 4.01(b), that has a then
outstanding Class Principal Balance that is not less than 25% of its initial
Class Principal Balance; provided that, if no Class of Principal Balance
Certificates has a Class Principal Balance that satisfies the foregoing
requirement, then the Controlling Class shall be the Class of Principal Balance
Certificates with the lowest payment priority pursuant to Sections 4.01(a) and
4.01(b), that has a then outstanding Class Principal Balance greater than zero.
For purposes of this definition, all of the Class A Certificates
-18-
shall be treated as a single Class and, if appropriate under the terms of this
definition, shall collectively constitute the Controlling Class.
"Controlling Class Certificateholder" shall mean any Holder
of Certificates of the Controlling Class.
"Controlling Class Representative" shall have the meaning
assigned thereto in Section 3.23(a) and shall initially be______________.
"Controlling Class Representative's Reports Checklist" shall
mean the list of reports specified in Exhibit E-3 attached hereto.
"Corporate Trust Office" shall mean the principal corporate
trust office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office is
as of the Closing Date located (i) for Certificate transfer purposes, at
__________ , Attention: __________ and (ii) for all other purposes, at
___________, Attention: ___________.
"Corrected Serviced Mortgage Loan" shall mean any Serviced
Mortgage Loan that had been a Specially Serviced Mortgage Loan but as to which
all Servicing Transfer Events have ceased to exist.
"Corresponding Class of Principal Balance Certificates" shall
mean, with respect to any REMIC II Regular Interest, the Class of Principal
Balance Certificates that has an alphabetic or alphanumeric class designation
that is the same as the alphabetic or alphanumeric, as applicable, designation
for such REMIC II Regular Interest; provided that the Class A-2 Certificates
shall be the Corresponding Class of Principal Balance Certificates with respect
to each of REMIC II Regular Interest A-2A and REMIC II Regular Interest A-2B.
"Corresponding Group X-2 REMIC III Regular Interest" shall
mean, with respect to any REMIC II Regular Interest, the Group X-2 REMIC III
Regular Interest that has an alphabetic or alphanumeric designation that, with
the deletion of "X-2-", is the same as the alphabetic or alphanumeric, as
applicable, designation for such REMIC II Regular Interest.
"Corresponding REMIC II Regular Interest" shall mean: (a) with
respect to any Class of Principal Balance Certificates (other than Class A-2
Certificates), the REMIC II Regular Interest that has an alphabetic or
alphanumeric designation that is the same as the alphabetic or alphanumeric, as
applicable, Class designation for such Class of Principal Balance Certificates;
(b) with respect to the Class A-2 Certificates, each of REMIC II Regular
Interest A-2A and REMIC II Regular Interest A-2B; and (c) with respect to any
Group X-2 REMIC III Regular Interest, the REMIC II Regular Interest that has an
alphabetic or alphanumeric designation that, when preceded by "X-2-", is the
same as the alphabetic or alphanumeric, as applicable, designation for such
Group X-2 REMIC III Regular Interest.
"Cross-Collateralized Group" shall mean any group of Mortgage
Loans that is cross-defaulted and cross-collateralized with each other. The
[Separately Serviced Mortgage Loan] Loan Group shall not be a
Cross-Collateralized Group for purposes of this Agreement.
-19-
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage
Loan, that is, by its terms, cross-defaulted and cross-collateralized with any
other Mortgage Loan. The [Separately Serviced Mortgage Loan] shall not be a
Cross-Collateralized Mortgage Loan for purposes of this Agreement.
"Current Interest Distribution Amount" shall have:
(a) with respect to any REMIC I Regular Interest, for any
Distribution Date, the meaning assigned thereto in Section 2.08(g);
(b) with respect to any REMIC II Regular Interest, for
any Distribution Date, the meaning assigned thereto in Section 2.10(g);
(c) with respect to any Class of REMIC III Regular
Interest Certificates, for any Distribution Date, the meaning assigned
thereto in Section 2.12(g); and
(d) with respect to any Group X-2 REMIC III Regular
Interest, for any Distribution Date, the meaning assigned thereto in
Section 2.12(g).
"Custodian" shall mean a Person who is at any time appointed
by the Trustee pursuant to Section 8.11 as a document custodian on behalf of the
Trustee for the Mortgage Files.
"Cut-off Date" shall mean: (A) with respect to any Mortgage
Loan, its Due Date in ________ ____; and (B) with respect to any group of
Mortgage Loans, their respective Due Dates in _________ ____, collectively.
"Cut-off Date Principal Balance" shall mean, with respect to
any Mortgage Loan, the outstanding principal balance of such Mortgage Loan as of
the Cut-off Date, after application of all payments of principal due on or
before such date, whether or not received.
"Default Charges" shall mean Default Interest and/or late
payment charges that are paid or payable, as the context may require, in respect
of any Mortgage Loan or REO Loan.
"Default Interest" shall mean, with respect to any Mortgage
Loan (or successor REO Loan), any amounts collected thereon, other than late
payment charges or Prepayment Premiums, that represent interest (exclusive, if
applicable, of Post-ARD Additional Interest) in excess of interest accrued on
the principal balance of such Mortgage Loan (or REO Loan) at the related
Mortgage Rate, such excess interest arising out of a default under such Mortgage
Loan; provided that, in the case of the [Separately Serviced Mortgage Loan] or
any [Separately Serviced Mortgage Loan] REO Property, "Default Interest" shall
be limited to only such amounts of the type described above in this definition
as are remitted to the Master Servicer on behalf of the Trust under a
[Separately Serviced Mortgage Loan] Servicing Agreement or, if Article XII is in
effect, as are transferred from the [Separately Serviced Mortgage Loan]
Custodial Account to the Collection Account pursuant to Section 12.04(b).
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defeasance Loan" shall mean a Mortgage Loan that permits the
related Borrower to obtain a release of the related Mortgaged Property through
defeasance.
-20-
"Defective Mortgage Loan" shall mean a Mortgage Loan as to
which there exists a Material Breach or a Material Document Defect.
"Definitive Certificate" shall have the meaning assigned
thereto in Section 5.03(a).
"Deleted Mortgage Loan" shall mean a Defective Mortgage Loan
which is repurchased from the Trust as contemplated by Section 2.03.
"Depositor" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Depository" shall mean The Depository Trust Company, or any
successor Depository hereafter named as contemplated by Section 5.03(c). The
nominee of the initial Depository for purposes of registering those Certificates
that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at
all times be a "clearing corporation" as defined in Section 8-102(3) of the
Uniform Commercial Code of the State of New York and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or
other financial institution or other Person for whom from time to time the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Designated Sub-Servicer" shall mean any Sub-Servicer set
forth on Exhibit L hereto and any successor thereto under the related
Sub-Servicing Agreement.
"Designated Sub-Servicer Agreement" shall mean any
Sub-Servicing Agreement between a Designated Sub-Servicer and the Master
Servicer.
"Determination Date" shall mean, with respect to any calendar
month, commencing in ________ ____, the 11th day of such month (or, if such 11th
day is not a Business Day, the next succeeding Business Day). Each Determination
Date will relate to the Distribution Date in the same calendar month.
"Directly Operate" shall mean, with respect to any
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 to customers (other than the sale of REO
Property pursuant to Section 3.18), the performance of any construction work
thereon or any use of such REO Property in a trade or business conducted by the
Trust other than through an Independent Contractor; provided, however, that the
Special Servicer (or any Sub-Servicer on behalf of the Special Servicer) shall
not be considered to Directly Operate an Administered REO Property solely
because the Special Servicer (or any Sub-Servicer on behalf of the Special
Servicer) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs or
capital expenditures with respect to such REO Property.
"Discount Rate" shall have the meaning assigned thereto in
Section 4.01(d).
"Disqualified Organization" shall mean any of the following:
(i) the United States or a possession thereof, any State or any political
subdivision thereof, or any agency or instrumentality of
-21-
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for Xxxxxxx Mac, a majority
of its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization, or any agency or instrumentality
of either of the foregoing, (iii) any organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code, or
(v) any other Person so designated by the Trustee based upon an Opinion of
Counsel provided to the Trustee (at no expense to the Trustee or the Trust) that
the holding of an Ownership Interest in a Class R Certificate by such Person may
cause the Trust or any Person having an Ownership Interest in any Class of
Certificates, other than such Person, to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Distribution Account" shall mean, subject to Section 3.04(f),
the segregated account or accounts created and maintained by the Trustee
pursuant to Section 3.04(b) in trust for the Certificateholders, which shall be
entitled "__________. [or the name of any successor trustee], as Trustee, in
trust for the registered holders of Citigroup Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series __________,
Distribution Account".
"Distribution Date" shall mean, with respect to any calendar
month, commencing in ________ ____, the __ day of such month (or, if such __ day
is not a Business Day, the Business Day immediately following).
"Document Defect" shall mean, with respect to any Mortgage
Loan, that any document required to be part of the related Mortgage File has not
been properly executed, is missing, contains information that does not conform
in any material respect with the corresponding information set forth in the
Mortgage Loan Schedule (and the terms of such document have not been modified by
written instrument contained in the related Mortgage File), or does not appear
to be regular on its face.
"Due Date" shall mean, with respect to any Mortgage Loan (and
any successor REO Loan), the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan is scheduled to be
first due (without regard to any applicable grace period).
"Early Defeasance Mortgage Loans" shall mean the Mortgage
Loans identified on Exhibit B-1D attached hereto.
"XXXXX" shall mean the Electronic Data Gathering, Analysis,
and Retrieval System of the Commission, which is the computer system for the
receipt, acceptance, review and dissemination of documents submitted to the
Commission in electronic format.
"Eligible Account" shall mean any of (i) an account maintained
with a federal or state chartered depository institution or trust company, the
long-term deposit or long-term unsecured debt obligations of which are rated no
less than "___" by [Rating Agency No. 1] and "___" by [Rating Agency No. 2] (if
the deposits are to be held in the account for more than 30 days), or the
short-term deposit or short-term unsecured debt obligations of which are rated
no less than "___" by [Rating Agency No. 1] and "___" by [Rating Agency No. 2]
(if the deposits are to be held in the account for 30
-22-
days or less), in any event at any time funds are on deposit therein, (ii) a
segregated trust account maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity, which, in the
case of a state chartered depository institution or trust company is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR Section 9.10(b), and which, in either case, is subject to supervision
or examination by federal or state authority, (iii) an account or accounts
maintained with ______ so long as ______'s long-term unsecured debt rating shall
be at least "___" from [Rating Agency No. 1] and "___" from [Rating Agency No.
2] and its short-term unsecured debt rating shall be at least "___" from [Rating
Agency No. 2], or (iv) any other account that is acceptable to the Rating
Agencies (as evidenced by written confirmation to the Trustee from each Rating
Agency that the use of such account would not, in and of itself, result in an
Adverse Rating Event with respect to any Class of Rated Certificates).
"Environmental Insurance Policy" shall mean, with respect to
any Mortgaged Property (other than the [Separately Serviced Mortgage Loan]
Mortgaged Property) or Administered 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.
"Environmental Laws" shall mean any federal or state laws and
regulations governing the use, management or disposal of Hazardous Materials.
"Environmentally Insured Mortgage Loans" shall mean the
Mortgage Loans identified on Exhibit B-1E attached hereto.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Escrow Payment" shall mean, with respect to any Serviced
Mortgage Loan, any payment received by the Master Servicer or the Special
Servicer for the account of any Borrower for application toward the payment of
real estate taxes, assessments, insurance premiums, ground rents (if applicable)
and similar items in respect of the related Mortgaged Property.
"Euroclear Operator" means Euroclear Bank S.A./N.V., as
operator of the Euroclear system, or any successor.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean, with respect to any
Specially Serviced Mortgage Loan or Administered REO Property, the excess, if
any, of (a) the Net Liquidation Proceeds from the sale or liquidation of such
Mortgage Loan or REO Property, over (b) the sum of (i) the amount needed to pay
all principal, interest (including Additional Interest (if applicable) and
Default Interest), Prepayment Premiums and late payment charges payable with
respect to such Mortgage Loan or the related REO Loan in full, (ii) any other
fees that would constitute Additional Master Servicing Compensation and/or
Additional Special Servicing Compensation, (iii) any related unreimbursed
Servicing Advances, (iv) all unpaid Advance Interest on any related Advances,
(v) any related Liquidation Fee and/or Special Servicing Fees paid or payable in
respect of such Mortgage Loan or the related REO Loan and (vi) any other
Additional Trust Fund Expenses paid or payable in respect of such Mortgage Loan
or REO Property.
-23-
"Excess Liquidation Proceeds Account" shall mean, subject to
Section 3.04(f), the segregated account created and maintained by the Trustee
pursuant to Section 3.04(d) in trust for the Certificateholders, which shall be
entitled "__________ [or the name of any successor Trustee], as trustee, in
trust for the registered holders of Citigroup Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series __________, Excess
Liquidation Proceeds Account".
"Excess Servicing Fees" shall mean, with respect to each
Mortgage Loan (and successor REO Loan), that portion of the Master Servicing
Fees that accrue at a per annum rate equal to the Excess Servicing Fee Rate.
"Excess Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan (and successor REO Loan), initially a rate per annum equal to the
related Master Servicing Fee Rate minus the sum of one basis point and any
applicable Primary Servicing Fee Rate; provided that such rate shall be subject
to reduction at any time following any resignation of the Master Servicer
pursuant to Section 6.04 (if no successor is appointed in accordance with the
second paragraph of such Section) or any termination of the Master Servicer
pursuant to Section 7.01, to the extent reasonably necessary (in the sole
discretion of the Trustee) for the Trustee to appoint a qualified successor
Master Servicer (which successor may include the Trustee) that meets the
requirements of Section 7.02 and who requires market rate servicing compensation
that accrues at a per annum rate in excess of the sum of one basis point and any
applicable Primary Servicing Fee Rate.
"Excess Servicing Fee Right" shall mean, with respect to each
Mortgage Loan (and successor REO Loan), the right to receive Excess Servicing
Fees.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Act Reporting Period" shall mean the period from and
including the Closing Date to and including __________, ____, as well as any
other fiscal year for the Trust if either (i) as of the commencement of such
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 or (ii) reporting under the Exchange Act is required with respect to
the Trust during or for, as applicable, such fiscal year because the Trustee
failed to make the requisite filing suspending such reporting.
"Exemption-Favored Party" shall mean any of (i) CGMI, (ii) any
Person directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with CGMI, 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 (other than the Class R and Class Y Certificates).
"Fair Value" shall mean, with respect to any Specially
Designated Defaulted Mortgage Loan, the amount that, in the Special Servicer's
reasonable judgment, taking into account the factors set forth in Section
3.18(b) and such other factors as the Special Servicer reasonably deems
appropriate, is the fair value of such Mortgage Loan.
"Fair Value Determination" shall mean the determination of
Fair Value of any Specially Designated Defaulted Mortgage Loan by the Special
Servicer in accordance with Section 3.18(b).
-24-
"Xxxxxx Mae" shall mean the Federal National Mortgage
Association or any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or
any successor.
"Final Distribution Date" shall mean the final Distribution
Date on which any distributions are to be made on the Certificates as
contemplated by Section 9.01.
"Final Recovery Determination" shall mean a determination made
by the Special Servicer (or, in the case of a Performing Serviced Mortgage Loan,
the [Separately Serviced Mortgage Loan] or the [Separately Serviced Mortgage
Loan] REO Property, by the Master Servicer), in its reasonable judgment, with
respect to any Mortgage Loan or REO Property (other than (i) a Mortgage Loan
that is paid in full and (ii) a Mortgage Loan or REO Property, as the case may
be, repurchased by or on behalf of a Mortgage Loan Seller pursuant to the
related Mortgage Loan Purchase Agreement or as otherwise contemplated by Section
2.03, or purchased by the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder(s) pursuant to Section 9.01, or otherwise
acquired by the Sole Certificateholder(s) in exchange for all the Certificates
pursuant to Section 9.01), that there has been a recovery of all related
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and other
payments or recoveries that will ultimately be recoverable.
"Fiscal Agent" shall mean a Person who is at any time
appointed by the Trustee pursuant to Section 8.13 to act as fiscal agent
hereunder.
"Fiscal Agent Agreement" shall have the meaning assigned
thereto in Section 8.13.
"Xxxxxxx Mac" shall mean the Federal Home Loan Mortgage
Corporation or any successor.
"GAAP" shall mean generally accepted accounting principles as
in effect from time to time in the United States.
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Certificates, a single global certificate, or multiple global
certificates collectively, registered in the name of the Depository or its
nominee, in definitive, fully registered form without interest coupons.
"Grantor Trust" shall mean a grantor trust as defined under
Subpart E of Part 1 of Subchapter J of the Code.
"Grantor Trust Pool" shall mean either of Grantor Trust R or
Grantor Trust Y.
"Grantor Trust R" shall mean the Grantor Trust designated as
such in Section 2.13(b).
"Grantor Trust Y" shall mean the Grantor Trust designated as
such in Section 2.13(a).
"Ground Lease" shall mean the ground lease pursuant to which
any Borrower holds a leasehold interest in the related Mortgaged Property,
together with any estoppels or other agreements executed and delivered by the
ground lessor in favor of the lender under the related Mortgage Loans.
"Group Terrorism Insurance Policy" shall mean that certain
Insurance Policy in respect of the Mortgage Loans identified on Exhibit B-1H,
which Insurance Policy (i) is intended to cover, for a
-25-
limited period, property damage resulting from certain acts of terrorism and
(ii) is to be delivered by the Depositor to the Special Servicer on behalf of
the Trustee on the Closing Date.
"Group Terrorism Insurance Policy Reserve Fund" shall mean the
"outside reserve fund" (within the meaning of Treasury regulation section
1.860G-2(h)) designated as such pursuant to Section 2.13(c) of this Agreement.
The Group Terrorism Insurance Policy Reserve Fund will be part of the Trust Fund
but not part of any REMIC Pool or Grantor Trust Pool.
"Group X-2 REMIC III Regular Interests" shall mean,
collectively, REMIC III Regular Interest X-2-A-2B, REMIC III Regular Interest
X-2-A-3, REMIC III Regular Interest X-2-B, REMIC III Regular Interest X-2-C,
REMIC III Regular Interest X-2-D and REMIC III Regular Interest X-2-E.
"Hazardous Materials" shall mean any dangerous, toxic or
hazardous pollutants, chemicals, wastes, or substances, including those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls
("PCBs"), radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Independent" shall mean, when used with respect to any
specified Person, any such Person who (i) is in fact independent of the
Depositor, each Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, any Fiscal Agent, the Controlling Class Representative and any and
all Affiliates thereof, (ii) does not have any direct financial interest in or
any material indirect financial interest in any of the Depositor, any Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent, the Controlling Class Representative or any Affiliate thereof, and (iii)
is not connected with the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee, any Fiscal Agent, the Controlling
Class Representative or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, any Fiscal Agent, the Controlling Class Representative or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any class of securities issued by the Depositor, such Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, such Fiscal
Agent, the Controlling Class Representative or any Affiliate thereof, as the
case may be (so long as such ownership interest constitutes less than 1.0% of
the total assets of such Person).
"Independent Contractor" shall mean any Person that would be
an "independent contractor" with respect to REMIC I (or, solely for purposes of
an Administered REO Property relating to an Early Defeasance Mortgage Loan, the
related Loan REMIC) within the meaning of Section 856(d)(3) of the Code if REMIC
I (or the related Loan 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% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust, delivered to the Trustee), so long as the Trust does not receive or
derive any income from such Person and provided that the relationship between
such Person and the Trust is at arm's length, all within the meaning of Treasury
regulation section 1.856-4(b)(5), or any other Person upon receipt by the
-26-
Trustee of an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust, to the effect that the taking of any action in respect of any
Administered REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code, or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property.
"Initial Pool Balance" shall mean the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
"Initial Resolution Period" shall have the meaning assigned
thereto in Section 2.03(b).
"Institutional Accredited Investor" or "IAI" shall mean an
"accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of
Rule 501(a) under the Securities Act or any entity as to which all of the equity
owners come within such paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage
Loan or REO Property, any hazard insurance policy, flood insurance policy, title
insurance policy, earthquake insurance policy, Environmental Insurance Policy,
business interruption insurance policy or other insurance policy that is
maintained from time to time in respect of such Mortgage Loan (or the related
Mortgaged Property) or such REO Property, as the case may be, including, in the
case of Mortgage Loans identified on Exhibit B-1H, the Group Terrorism Insurance
Policy.
"Insurance Proceeds" shall mean proceeds paid under any
Insurance Policy, to the extent such proceeds are not applied to the restoration
of the related Mortgaged Property or REO Property or released to the related
Borrower, in any case, in accordance with applicable law and/or the terms and
conditions of the related Mortgage Loan Documents; provided that, in the case of
the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage
Loan] REO Property, "Insurance Proceeds" shall be limited to only such proceeds
of the type described above in this definition as are remitted to the Master
Servicer on behalf of the Trust under a [Separately Serviced Mortgage Loan]
Servicing Agreement or, if Article XII is in effect, as are transferred from the
[Separately Serviced Mortgage Loan] Custodial Account to the Collection Account
pursuant to Section 12.04(b).
"Insured Environmental Event" shall have the meaning assigned
thereto in Section 3.07(c).
"Interest Accrual Amount" shall have:
(a) with respect to any REMIC I Regular Interest, for any
Interest Accrual Period, the meaning assigned thereto in Section
2.08(g);
(b) with respect to any REMIC II Regular Interest, for
any Interest Accrual Period, the meaning assigned thereto in Section
2.10(g);
(c) with respect to any Class of REMIC III Regular
Interest Certificates, for any Interest Accrual Period, the meaning
assigned thereto in Section 2.12(g); and
-27-
(d) with respect to any Group X-2 REMIC III Regular
Interest, for any Interest Accrual Period, the meaning assigned thereto
in Section 2.12(g).
"Interest Accrual Basis" shall mean the basis on which
interest accrues in respect of any Mortgage Loan, any Loan REMIC Regular
Interest, any REMIC I Regular Interest, any REMIC II Regular Interest, any Group
X-2 REMIC III Regular Interest or any Class of REMIC III Regular Interest
Certificates, consisting of one of the following: (i) a 30/360 Basis; or (ii) an
Actual/360 Basis.
"Interest Accrual Period" shall mean, with respect to any Loan
REMIC Regular Interest, any REMIC I Regular Interest, any REMIC II Regular
Interest, any Group X-2 REMIC III Regular Interest or any Class of REMIC III
Regular Interest Certificates, for any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs.
"Interest Distribution Amount" shall mean, with respect to any
REMIC I Regular Interest, any REMIC II Regular Interest, any Group X-2 REMIC III
Regular Interest or any Class of REMIC III Regular Interest Certificates, for
any Distribution Date, the sum of the related Current Interest Distribution
Amount and the related Carryforward Interest Distribution Amount for such
Distribution Date.
"Interest Only Certificate" shall mean any of the Class X-1
and/or Class X-2 Certificates.
"Interest Reserve Account" shall mean, subject to Section
3.04(f), the segregated account created and maintained by the Trustee pursuant
to Section 3.04(c) in trust for the Certificateholders, which shall be entitled
"__________ [or the name of any successor Trustee], as trustee, in trust for the
registered holders of Citigroup Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series __________, Interest Reserve
Account".
"Interest Reserve Amount" shall mean, with respect to each
Interest Reserve Loan and each Distribution Date that occurs during February
____ and during February of each year thereafter and during January ____ and
during January of each year thereafter that is not a leap year, an amount equal
to one day's interest at the related Net Mortgage Rate on the Stated Principal
Balance of such Interest Reserve Loan immediately prior to such Distribution
Date (and, accordingly, prior to any reduction in such Stated Principal Balance
on such Distribution Date), to the extent that a Monthly Payment is received in
respect of such Interest Reserve Loan for the related Due Date in the same month
as such Distribution Date on or before the related Master Servicer Remittance
Date or a P&I Advance is made in respect of such Interest Reserve Loan for such
Due Date on the related Master Servicer Remittance Date.
"Interest Reserve Loan" shall mean any Mortgage Loan or REO
Loan in the Mortgage Pool that accrues or is deemed to accrue interest on an
Actual/360 Basis.
"Interested Person" shall mean any party hereto, any Mortgage
Loan Seller, any Certificateholder, or any Affiliate of any such Person.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended.
-28-
"Investment Grade Certificate" shall mean, as of any date of
determination, any Certificate that a Responsible Officer of the Certificate
Registrar actually knows is rated at least "___" by [Rating Agency No. 1] or
"___" by [Rating Agency No. 2].
"IRS" shall mean the Internal Revenue Service or any
successor.
"Issue Price" shall mean, with respect to each Class of
Certificates, the "issue price" as defined in the Code and Treasury regulations
promulgated thereunder.
"Late Collections" shall mean: (a) with respect to any
Mortgage Loan, all amounts that are received thereon (including, in the case of
the [Separately Serviced Mortgage Loan], by the [Separately Serviced Mortgage
Loan] Master Servicer or the [Separately Serviced Mortgage Loan] Special
Servicer) during any Collection Period, whether as payments, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of such
Mortgage Loan due or deemed due on a Due Date in a previous Collection Period,
or on a Due Date coinciding with or preceding the Cut-off Date, and not
previously recovered; and (b) with respect to any REO Loan, all amounts that are
received in connection with the related REO Property (including, in the case of
any [Separately Serviced Mortgage Loan] REO Property, by the [Separately
Serviced Mortgage Loan] Master Servicer or the [Separately Serviced Mortgage
Loan] Special Servicer) during any Collection Period, whether as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the predecessor Mortgage Loan or late collections
of the principal and/or interest portions of an Assumed Monthly Payment in
respect of such REO Loan due or deemed due on a Due Date in a previous
Collection Period and not previously recovered. The term "Late Collections"
shall specifically exclude any Default Charges.
"Latest Possible Maturity Date" shall mean, with respect to
any Loan REMIC Regular Interest, any REMIC I Regular Interest, any REMIC II
Regular Interest, any Group X-2 REMIC III Regular Interest, any Class of
Principal Balance Certificates or the Class X-1 Certificates, the date
designated as the "latest possible maturity date" thereof solely for purposes of
satisfying Treasury regulation section 1.860G-1(a)(4)(iii).
"Letter of Credit" shall mean, with respect to any Mortgage
Loan, any third-party letter of credit delivered by or at the direction of the
related Borrower pursuant to the terms of such Mortgage Loan in lieu of the
establishment of, or deposit otherwise required to be made into, a Reserve Fund
or otherwise pledged or assigned by the related Borrower as Additional
Collateral.
"Liquidation Event" shall mean: (a) with respect to any
Mortgage Loan, any of the following events--(i) such Mortgage Loan is paid in
full, (ii) a Final Recovery Determination is made with respect to such Mortgage
Loan, (iii) such Mortgage Loan is repurchased by or on behalf of a Mortgage Loan
Seller pursuant to the related Mortgage Loan Purchase Agreement or as otherwise
contemplated by Section 2.03, (iv) such Mortgage Loan is purchased by the
Special Servicer, the Majority Controlling Class Certificateholder(s) or any
assignee of the foregoing pursuant to Section 3.18(c), (v) such Mortgage Loan is
purchased by the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 9.01, or (vi) such Mortgage Loan is
acquired by the Sole Certificateholder(s) in exchange for all of the
Certificates pursuant to Section 9.01; and
-29-
(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 (and the related REO Loan) (or, in the
case of any [Separately Serviced Mortgage Loan] REO Property, any interest
therein) is repurchased by or on behalf of a Mortgage Loan Seller pursuant to
the related Mortgage Loan Purchase Agreement or as otherwise contemplated by
Section 2.03, (iii) such REO Property (or, in the case of any [Separately
Serviced Mortgage Loan] REO Property, any interest therein) is purchased by the
Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 9.01 or (iv) such REO Property (or, in
the case of any [Separately Serviced Mortgage Loan] REO Property, any interest
therein) is acquired by the Sole Certificateholder(s) in exchange for all of the
Certificates pursuant to Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable
and necessary "out-of-pocket" costs and expenses due and owing (but not
otherwise covered by Servicing Advances) in connection with the liquidation of
any Specially Serviced Mortgage Loan or Administered REO Property pursuant to
Section 3.09 or Section 3.18 (including legal fees and expenses, committee or
referee fees and, if applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in,
and payable to the Special Servicer in connection with certain recoveries on a
Specially Serviced Mortgage Loan or Administered REO Property pursuant to, the
third paragraph of Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan or Administered REO Property as to which a
Liquidation Fee is payable, 1.00%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues) received by the
Master Servicer or the Special Servicer (including, in the case of the
[Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan]
REO Property, from the [Separately Serviced Mortgage Loan] Master Servicer or
the [Separately Serviced Mortgage Loan] Special Servicer) in connection with:
(i) the full, discounted or partial liquidation of a Mortgaged Property or other
collateral constituting security for a defaulted Mortgage Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Borrower in accordance
with applicable law and/or the terms and conditions of the related Mortgage Loan
Documents (provided that, in the case of the [Separately Serviced Mortgage Loan]
or any [Separately Serviced Mortgage Loan] REO Property, "Liquidation Proceeds"
shall be limited to only such proceeds of the type described in this clause (i)
as are remitted to the Master Servicer on behalf of the Trust under a
[Separately Serviced Mortgage Loan] Servicing Agreement or, if Article XII is in
effect, as are transferred from the [Separately Serviced Mortgage Loan]
Custodial Account to the Collection Account pursuant to Section 12.04(b)); (ii)
the realization upon any deficiency judgment obtained against a Borrower
(provided that, in the case of the [Separately Serviced Mortgage Loan] or any
[Separately Serviced Mortgage Loan] REO Property, "Liquidation Proceeds" shall
be limited to only such proceeds of the type described in this clause (ii) as
are remitted to the Master Servicer on behalf of the Trust under a [Separately
Serviced Mortgage Loan] Servicing Agreement or, if Article XII is in effect, as
are transferred from the [Separately Serviced Mortgage Loan] Custodial Account
to the Collection Account pursuant to Section 12.04(b)); (iii) the purchase of a
Specially Designated Defaulted Mortgage Loan by the Majority Controlling Class
Certificateholder(s), the Special Servicer or any assignee of the foregoing
pursuant to Section 3.18(c); (iv) the repurchase of a Mortgage Loan or REO
Property by or on behalf of a Mortgage Loan Seller
-30-
pursuant to the related Mortgage Loan Purchase Agreement or as otherwise
contemplated by Section 2.03; (v) the purchase of a Mortgage Loan or REO
Property by the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 9.01; (vi) the acquisition of any
Mortgage Loan or REO Property by the Sole Certificateholder(s) in exchange for
all of the Certificates pursuant to Section 9.01; or (vii) solely in the case of
the [Separately Serviced Mortgage Loan], any purchase thereof from the Trust as
contemplated by the [Separately Serviced Mortgage Loan] Intercreditor
Agreements.
"Loan REMIC" shall mean, with respect to the [Separately
Serviced Mortgage Loan] and each Early Defeasance Mortgage Loan, the segregated
pool of assets consisting primarily of such Mortgage Loan, any related REO
Property, and any and all payments under and the proceeds of such Mortgage Loan
and/or related REO Property received after the date of the related Loan REMIC
Declaration.
"Loan REMIC Declaration" shall mean, with respect to the
[Separately Serviced Mortgage Loan] and each Early Defeasance Mortgage Loan, the
REMIC declaration made as of a date prior to the Closing Date.
"Loan REMIC Interest" shall mean any Loan REMIC Regular
Interest or Loan REMIC Residual Interest.
"Loan REMIC Regular Interest" shall mean the uncertificated
"regular interest", within the meaning of Section 860G(a)(1) of the Code, in
each Loan REMIC. The principal balance of each Loan REMIC Regular Interest shall
equal the principal balance of the related Mortgage Loan (or, if applicable, the
deemed principal balance of any successor REO Loan) outstanding from time to
time. Payments and other collections of amounts received on or in respect of the
[Separately Serviced Mortgage Loan] and each of the Early Defeasance Mortgage
Loans (or any related REO Property or the Trust's interest therein) and
allocable (in accordance with Section 1.03) to interest (exclusive of any
portion thereof that constitutes Post-ARD Additional Interest, and otherwise
adjusted to the related Loan REMIC Remittance Rate) on, principal of and/or
Prepayment Premiums with respect to such Mortgage Loan (or any successor REO
Loan) shall be deemed paid on the related Loan REMIC Regular Interest to REMIC I
at the time such amounts are so received. The terms of each Loan REMIC Regular
Interest are otherwise set forth in the related Loan REMIC Declaration.
"Loan REMIC Remittance Rate" shall mean the per annum rate at
which interest accrues in respect of a Loan REMIC Regular Interest, as set forth
in or otherwise calculated in accordance with the related Loan REMIC
Declaration.
"Loan REMIC Residual Interest" shall mean the sole
uncertificated "residual interest", within the meaning of Section 860G(a)(2) of
the Code, in each Loan REMIC.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any REMIC I Regular Interest for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) REMIC II with
respect to such REMIC I Regular Interest on all prior Distribution
Dates, if any;
-31-
(b) with respect to any REMIC II Regular Interest for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) REMIC III with
respect to such REMIC II Regular Interest on all prior Distribution
Dates, if any; and
(c) with respect to any Class of Principal Balance
Certificates for any Distribution Date, the total amount of all
Unfunded Principal Balance Reductions, if any, incurred by (but not
reimbursed to) the Holders of such Class of Certificates on all prior
Distribution Dates, if any.
"Majority Controlling Class Certificateholder(s)" shall mean,
as of any date of determination, any single Holder or group of Holders of
Certificates representing a majority of the Voting Rights allocated to the Class
or Classes of Principal Balance Certificates that constitute(s) the Controlling
Class as of such date of determination.
"Master Servicer" shall mean _________________, 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) all amounts on
deposit in the Collection Account as of 11:00 a.m., New York City time, on such
Master Servicer Remittance Date, net of (b) any portion of the amounts described
in clause (a) of this definition that represents one or more of the following:
(i) any collected Monthly Payment that is due with respect to any Serviced
Mortgage Loan on a Due Date following the end of the then most recently ended
Collection Period, (ii) any payments of principal (including Principal
Prepayments) and interest (including Post-ARD Additional Interest), Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds received (including, if
applicable, by the [Separately Serviced Mortgage Loan] Master Servicer or the
[Separately Serviced Mortgage Loan] Special Servicer on behalf of the Trust)
with respect to any Mortgage Loan or REO Property after the end of the then most
recently ended Collection Period, (iii) any Prepayment Premium received
(including, if applicable, by the [Separately Serviced Mortgage Loan] Master
Servicer or the [Separately Serviced Mortgage Loan] Special Servicer on behalf
of the Trust) with respect to any Mortgage Loan or any REO Loan after the end of
the then most recently ended Collection Period, (iv) Excess Liquidation
Proceeds, (v) any amounts payable or reimbursable to any Person from the
Collection Account pursuant to clauses (ii) through (xx) of the first paragraph
of Section 3.05(a), and (vi) any amounts deposited in the Collection Account in
error; provided that the Master Servicer Remittance Amount for the Master
Servicer Remittance Date that occurs in the same calendar month as the
anticipated Final Distribution Date shall be calculated without regard to
clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date" shall mean the Business Day
preceding each Distribution Date.
"Master Servicing Fee" shall mean, with respect to each
Mortgage Loan and REO Loan, 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 and any successor REO Loan, the rate per annum specified as such
on the Mortgage Loan Schedule.
"Material Breach" shall mean any Breach that materially and
adversely affects the value of any Mortgage Loan or the interests of the
Certificateholders, or any of them, in or with respect to
-32-
such Mortgage Loan, including a material and adverse effect on any of the
payments payable with respect to any of the Certificates or the value of any of
the Certificates. In determining whether a Breach materially and adversely
affects the value of a Mortgage Loan or the interests of the Certificateholders,
or any of them, in such Mortgage Loan, the extent to which such Breach adversely
affects the value of the related Mortgaged Property, if at all, is a factor to
be considered.
"Material Document Defect" shall mean any Document Defect that
materially and adversely affects the value of any Mortgage Loan or the interests
of the Certificateholders, or any of them, in or with respect to such Mortgage
Loan, including a material and adverse effect on any of the payments payable
with respect to any of the Certificates or the value of any of the Certificates;
provided, however, that, except as set forth in the next sentence, no Document
Defect will be considered to be a Material Document Defect prior to the first
anniversary of the Closing Date, unless the document with respect to which the
subject Document Defect exists is required in connection with an imminent
enforcement of the lender's rights or remedies under the related Mortgage Loan,
defending any claim asserted by any Borrower or third party with respect to the
related Mortgage Loan, establishing the validity or priority of any lien on any
collateral securing the related Mortgage Loan or for any immediate servicing
obligation. Notwithstanding the foregoing, it is agreed by all parties that the
absence of a Specially Designated Mortgage Loan Document shall be a Material
Document Defect.
"Memorandum" shall mean the final Offering Memorandum, dated
________, ____, relating to certain Classes of the Non-Registered Certificates
delivered by the Depositor to CGMI as of the Closing Date.
"Modified Mortgage Loan" shall mean any Serviced Mortgage 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) materially affects the amount or timing of any
payment of principal or interest due thereon (other than, or in
addition to, bringing Monthly Payments current with respect to such
Mortgage Loan);
(b) except as expressly contemplated by the related
Mortgage Loan Documents, results in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property
without a corresponding Principal Prepayment in an amount, or the
delivery of substitute real property collateral with a fair market
value (as is), that is not less than the fair market value (as is) of
the property to be released, as determined by an Appraisal delivered to
the Special Servicer (at the expense of the related Borrower and upon
which the Special Servicer may conclusively rely); or
(c) in the reasonable judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment" shall mean, with respect to any Mortgage
Loan as of any Due Date, the scheduled monthly payment (or, in the case of an
ARD Mortgage Loan after its Anticipated Repayment Date, the minimum required
monthly payment) of principal and/or interest on such Mortgage Loan, including
any Balloon Payment, that is actually payable by the related Borrower from time
to time under the terms of the related Mortgage Note (as such terms may be
changed or modified in
-33-
connection with a bankruptcy, insolvency or similar proceeding involving the
related Borrower or by reason of a modification, waiver or amendment granted or
agreed to by the Master Servicer or the Special Servicer pursuant to Section
3.20 (or, in the case of the [Separately Serviced Mortgage Loan], by the
[Separately Serviced Mortgage Loan] Master Servicer or the [Separately Serviced
Mortgage Loan] Special Servicer pursuant to a [Separately Serviced Mortgage
Loan] Servicing Agreement or by the Master Servicer or the Special Servicer
pursuant to Section 12.13)).
"Mortgage" shall mean, with respect to any Mortgage Loan,
separately and collectively, as the context may require, each mortgage, deed of
trust, deed to secure debt or similar document that secures the related Mortgage
Note and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean:
(a) with respect to any Serviced Mortgage Loan, subject
to Sections 1.05 and 2.01, the following documents on a collective
basis:
(i) the original executed Mortgage Note,
endorsed (either on the face thereof or pursuant to a separate
allonge) "Pay to the order of ______________, as trustee for
the registered holders of Citigroup Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series __________, without recourse", and
further showing a complete, unbroken chain of endorsement from
the originator (if such originator is other than the related
Mortgage Loan Seller); or alternatively, if the original
executed Mortgage Note has been lost, a lost note affidavit
and indemnity with a copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage and of
any intervening assignments thereof that precede the
assignment referred to in clause (iv) of this definition, in
each case (unless the particular item has been delivered to,
but has not been returned from, the applicable recording
office) with evidence of recording indicated thereon or
certified as to recording by the applicable recording office;
(iii) an original or a copy of any related
Assignment of Leases (if such item is a document separate from
the Mortgage) and of any intervening assignments thereof that
precede the assignment referred to in clause (v) of this
definition, in each case (unless the particular item has been
delivered to, but has not been returned from, the applicable
recording office) with evidence of recording indicated thereon
or certified as to recording by the applicable recording
office;
(iv) an original executed assignment of the
Mortgage, in favor of ________________, as trustee for the
registered holders of Citigroup Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series
___________, or in blank, in recordable form (except for any
missing recording information with respect to such Mortgage
and, if delivered in blank, the name of the assignee);
(v) an original executed assignment of any
related Assignment of Leases (if such item is a document
separate from the Mortgage), in favor of ______, as trustee
for the registered holders of Citigroup Commercial Mortgage
Securities Inc., Commercial
-34-
Mortgage Pass-Through Certificates, Series ___________, or in
blank, in recordable form (except for any missing recording
information with respect to such Assignment of Leases and, if
delivered in blank, the name of the assignee);
(vi) originals or copies of any written
assumption, modification, assurance and substitution
agreements in those instances where the terms or provisions of
the Mortgage or Mortgage Note have been modified or such
Mortgage Loan has been assumed, in each case (unless the
particular item has been delivered to, but has not been
returned from, the applicable recording office) with evidence
of recording indicated thereon or certified as to recording by
the applicable recording office if the instrument being
modified or assumed is a recordable document;
(vii) the original or a copy of the policy of
lender's title insurance (or, if such policy has not yet been
issued, a "marked-up" pro forma title policy or commitment for
title insurance, marked as binding and countersigned by the
title insurer or its authorized agent either on its face or by
an acknowledged closing instruction or escrow letter);
(viii) filed copies of any prior UCC Financing
Statements in favor of the originator of such Mortgage Loan or
in favor of any assignee prior to the Trustee (but only to the
extent the related Mortgage Loan Seller had or gains
possession of such UCC Financing Statements) and, in
connection with such UCC Financing Statements, an original UCC
Financing Statement Amendment, as appropriate, in form
suitable for filing (except for the completion of the
assignee's name), in favor of ______, as trustee for the
registered holders of Citigroup Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series
__________, or in blank;
(ix) the original or a copy of any environmental
indemnity agreement and any Environmental Insurance Policy
relating to such Mortgage Loan;
(x) the original or a copy of any power of
attorney, guaranty, loan agreement, cash management agreement,
Ground Lease and/or Ground Lease estoppels relating to such
Mortgage Loan;
(xi) any original documents (including any
security agreement(s) and any Letter(s) of Credit) relating
to, evidencing or constituting Additional Collateral and, if
applicable, the originals or copies of any intervening
assignments thereof;
(xii) the original or a copy of any intercreditor
agreement, co-lender agreement or similar agreement relating
to such Mortgage Loan;
(xiii) the original or a copy of any agreement
whereby the payment of property management fees are
subordinated to payment of the subject Mortgage Loan;
(xiv) in the case of any Early Defeasance Mortgage
Loan, the original or a copy of the related Loan REMIC
Declaration and any tax returns or other related filings, if
any; and
-35-
(xv) if the documents described in clauses (i) -
(xiv) above are delivered, in whole or in part, as part of a
closing binder, an index of the documents in that closing
binder; and
(b) with respect to the [Separately Serviced Mortgage
Loan], the following documents on a collective basis:
(i) the original executed Mortgage Note for such
Mortgage Loan, endorsed (either on the face thereof or
pursuant to a separate allonge) "Pay to the order of
__________, as trustee for the registered holders of Citigroup
Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series __________, without
recourse", and further showing a complete, unbroken chain of
endorsement from the originator (if such originator is other
than the related Mortgage Loan Seller); or, alternatively, if
the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note;
(ii) a copy of the executed [Separately Serviced
Mortgage Loan] Intercreditor Agreements;
(iii) a copy of a [Separately Serviced Mortgage
Loan] Servicing Agreement; and
(iv) the original or a copy of the related Loan
REMIC Declaration;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee, such term shall be deemed not to include such
documents and instruments required to be included therein unless they are
actually so received.
"Mortgage Loan" shall mean each of the mortgage loans listed
on the Mortgage Loan Schedule that are 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,
except that, with respect to the [Separately Serviced Mortgage Loan], the term
"Mortgage Loan" includes the related Mortgage Note and any other documents
contained in the related Mortgage File or otherwise held on behalf of the Trust.
As used herein, the term "Mortgage Loan" also includes a mortgage loan in the
Trust Fund that has been wholly or partially defeased.
"Mortgage Loan Document" shall mean, with respect to any
Mortgage Loan, each document comprising the related Mortgage File or the related
Servicing File.
"Mortgage Loan Purchase Agreements" shall mean, collectively,
the CGMRC Mortgage Loan Purchase Agreement, the [Seller No. 2] Mortgage Loan
Purchase Agreement and the [Seller No. 3] Mortgage Loan Purchase Agreement.
-36-
"Mortgage Loan Schedule" shall mean, collectively, the three
lists of Mortgage Loans attached hereto as Exhibit B-1A, Exhibit B-1B and
Exhibit B-1C, respectively, as such lists may be amended from time to time in
accordance with this Agreement. Such lists shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number and the Prospectus Loan
Identification Number as provided in the Prospectus;
(ii) the (A) street address (including city, state and zip
code) of the related Mortgaged Property and (B) number or amount, as
applicable, of apartment units, rentable square footage, rooms or other
relevant divisions at or measurement of the related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off
Date Principal Balance;
(iv) the amount of the Monthly Payment due on the first
Due Date following the Closing Date;
(v) the Mortgage Rate as of the Cut-off Date;
(vi) the (A) original and remaining term to stated
maturity (or, in the case of an ARD Mortgage Loan, to the related
Anticipated Repayment Date) and (B) Stated Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the original
and remaining amortization term and the Balloon Payment;
(viii) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, the other Mortgage Loans contained in the
related Cross-Collateralized Group;
(ix) whether the Mortgage Loan is an ARD Mortgage Loan
and, if so, the Anticipated Repayment Date;
(x) whether the Mortgage Loan provides for defeasance
and, if so, the period during which defeasance may occur;
(xi) whether the Mortgage Loan is secured by a fee simple
interest in the Mortgaged Property; by the Borrower's leasehold
interest, and a fee simple interest, in the Mortgaged Property; or
solely by a leasehold interest in the Mortgaged Property;
(xii) the related Mortgage Loan Seller and, if different,
the named lender on the related Mortgage Loan Documents;
(xiii) the Interest Accrual Basis;
(xiv) the Master Servicing Fee Rate;
(xv) whether the Mortgage Loan provides, at any time
during its term, for a Prepayment Premium calculated based on a yield
maintenance formula in connection with voluntary Principal Prepayments
and, if so, what is the applicable Yield Maintenance Interest
-37-
Rate, whether or not the Yield Maintenance Interest Rate is converted
to a monthly equivalent yield, and the Yield Maintenance Discounting
Horizon;
(xvi) the number of grace days before such Mortgage Loan
requires a late payment charge in connection with a delinquent Monthly
Payment;
(xvii) the amount of any Reserve Funds and Escrow Payments
that represent 5% or more of the unpaid principal balance of such
Mortgage Loan; and
(xviii) whether there exists (and, if so, the amount of) any
letter of credit that constitutes Additional Collateral.
"Mortgage Loan Sellers" shall mean, collectively, CGMRC,
[Seller No. 2] and [Seller No. 3].
"Mortgage Loans Delinquent Report" shall mean the report in
the form of and containing the information provided for in Exhibit E-5 attached
hereto.
"Mortgage Note" shall mean the original executed note
evidencing the indebtedness of a Borrower under a Mortgage Loan, together with
any rider, addendum or amendment thereto, or any renewal, substitution or
replacement of such note.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Loans, collectively, as of any particular date of determination.
The Mortgage Pool shall not include either of the [Separately Serviced Mortgage
Loan] Companion Loans.
"Mortgage Rate" shall mean, with respect to any Mortgage Loan
(and any successor REO Loan), the annualized rate at which interest is scheduled
(in the absence of a default) to accrue on such Mortgage Loan from time to time
in accordance with the related Mortgage Note and applicable law, as such rate
may be modified in accordance with Section 3.20 (or, in the case of the
[Separately Serviced Mortgage Loan], by the [Separately Serviced Mortgage Loan]
Master Servicer or the [Separately Serviced Mortgage Loan] Special Servicer
pursuant to a [Separately Serviced Mortgage Loan] Servicing Agreement or by the
Master Servicer or Special Servicer pursuant to Section 12.13) or in connection
with a bankruptcy, insolvency or similar proceeding involving the related
Borrower. In the case of each of the ARD Mortgage Loans, the related Mortgage
Rate will be subject to increase in accordance with the related Mortgage Note if
the particular Mortgage Loan is not paid in full by its Anticipated Repayment
Date.
"Mortgaged Property" shall mean, individually and
collectively, as the context may require, each real property (together with all
improvements and fixtures thereon) subject to the lien of a Mortgage and
constituting collateral for a Mortgage Loan. With respect to any
Cross-Collateralized Mortgage Loan, if and when the context may require,
"Mortgaged Property" shall mean, collectively, all the mortgaged real properties
(together with all improvements and fixtures thereon) securing the relevant
Cross-Collateralized Group.
"Mortgagee" shall mean the holder of legal title to any
Mortgage Loan, together with any third parties through which such holder takes
actions with respect to such Mortgage Loan.
-38-
"Net Adjusted REMIC II Remittance Rate" shall mean:
(a) with respect to REMIC II Regular Interest A-2B, for
any Interest Accrual Period, ____% per annum,
(b) with respect to REMIC II Regular Interest A-3, for
any Interest Accrual Period, a rate per annum equal to ____% per annum;
(c) with respect to REMIC II Regular Interest B, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) ____% per annum;
(d) with respect to REMIC II Regular Interest C, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) ____% per annum;
(e) with respect to REMIC II Regular Interest D, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) ____% per annum; and
(f) with respect to REMIC II Regular Interest E, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i)
the related REMIC II Remittance Rate for such Interest Accrual Period
and (ii) ____% per annum.
"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, or any other early collections of principal in the form
of Insurance Proceeds and/or Condemnation Proceeds, on the Mortgage Loans during
the Collection Period for such Distribution Date (or, in the case of the
[Separately Serviced Mortgage Loan], incurred in connection with the receipt of
a Principal Prepayment, or any other early collection of principal in the form
of Insurance Proceeds and/or Condemnation Proceeds, that is distributable to
Certificateholders on such Distribution Date), exceeds (b) the aggregate amount
of the Compensating Interest Payment remitted by the Master Servicer pursuant to
Section 3.19(a) to cover such Prepayment Interest Shortfalls.
"Net Assumption Application Fee" shall have the meaning
assigned thereto in Section 3.08.
"Net Assumption Fee" shall have the meaning assigned thereto
in Section 3.08.
"Net Default Charges" shall mean, with respect to any Mortgage
Loan or successor REO Loan, the Default Charges referred to in clause seventh of
Section 1.04(a), which are payable either to the Master Servicer as Additional
Master Servicing Compensation or to the Special Servicer as Additional Special
Servicing Compensation.
"Net Investment Earnings" shall mean, with respect to any
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period in
connection with the investment of funds held in such Account for the benefit of
the
-39-
Master Servicer or the Special Servicer, as applicable, exceeds the aggregate of
all losses, if any, incurred during such Collection Period in connection with
the investment of such funds for the benefit of the Master Servicer or the
Special Servicer, as applicable, in accordance with Section 3.06 (other than
losses of what would otherwise have constituted interest or other income earned
on such funds).
"Net Investment Loss" shall mean, with respect to any 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 Account for the benefit of the Master Servicer or the Special
Servicer, as applicable, in accordance with Section 3.06 (other than losses of
what would otherwise have constituted interest or other income earned on such
funds), exceeds the aggregate of all interest and other income realized during
such Collection Period in connection with the investment of such funds for the
benefit of the Master Servicer or the Special Servicer, as applicable, in
accordance with Section 3.06; provided that, notwithstanding anything herein to
the contrary, Net Investment Loss shall not include any loss with respect to
deposits in any Account that are not invested; and provided, further, that in
the case of any Account and any particular investment of funds in such Account,
Net Investment Loss shall not include any loss with respect to such investment
which is incurred solely as a result of the insolvency of the federal or state
chartered depository institution or trust company that holds such Account, so
long as such depository institution or trust company was not the party or an
Affiliate of the party hereunder maintaining such Account on behalf of the Trust
and such Account satisfied the qualifications set forth in the definition of
Eligible Account both at the time such investment was made and as of a date not
more than 30 days prior to the date of the loss.
"Net Liquidation Proceeds" shall mean the excess, if any, of
all Liquidation Proceeds received with respect to any Specially Serviced
Mortgage Loan or Administered REO Property, over the amount of all unpaid
Liquidation Expenses and unreimbursed Servicing Advances incurred with respect
thereto.
"Net Mortgage Rate" shall mean, with respect to any Mortgage
Loan (or successor REO Loan), a rate per annum equal to the related Mortgage
Rate, minus the related Administrative Fee Rate and, in the case of an ARD
Mortgage Loan subsequent to its Anticipated Repayment Date, minus the related
Post-ARD Additional Interest Rate.
"New Lease" shall mean any lease of an Administered REO
Property entered into at the direction of the Special Servicer, including any
lease renewed, modified or extended on behalf of the Certificateholders, if the
Special Servicer has the right to negotiate the terms of such lease.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean, as evidenced by the
Officer's Certificate and supporting documentation contemplated by Section
4.03(c), any P&I Advance previously made or to be made in respect of any
Mortgage Loan or any REO Loan hereunder that, as determined by the Master
Servicer or, if applicable, the Trustee or any Fiscal Agent, in its reasonable
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 Mortgage Loan. In the case of a Cross-Collateralized
Mortgage Loan, such recoverability determination shall take into account the
cross-collateralization of the related Cross-Collateralized Group.
-40-
"Nonrecoverable Servicing Advance" shall mean, as evidenced by
the Officer's Certificate and supporting documentation contemplated by Section
3.11(h), any Servicing Advance previously made or to be made in respect of a
Mortgage Loan or REO Property hereunder that, as determined by the Master
Servicer, the Special Servicer or, if applicable, the Trustee or any Fiscal
Agent, in its reasonable 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 Mortgage Loan or REO Property. In the
case of a Cross-Collateralized Mortgage Loan, such recoverability determination
shall take into account the cross-collateralization of the related
Cross-Collateralized Group.
"Non-Registered Certificate" shall mean any Certificate that
has not been subject to registration under the Securities Act. As of the Closing
Date, the Class X-1, Class X-2, Class H, Class J, Class K, Class L, Class M,
Class N, Class P, Class Q, Class S, Class T, Class Y and Class R Certificates
will constitute Non-Registered Certificates.
"Non-United States Tax Person" shall mean any Person other
than a United States Tax Person.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer or the Special Servicer or a
Responsible Officer of the Trustee or any Fiscal Agent, as the case may be.
"Opinion of Counsel" shall mean a written opinion of counsel
(which counsel, in the case of any such opinion of counsel relating to the
taxation of the Trust Fund or any portion thereof or the status of any REMIC
Pool as a REMIC or the status of either Grantor Trust Pool as a Grantor Trust
for taxation purposes, shall be Independent of the Depositor, each Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent, as applicable, but which may act as counsel to such Person) acceptable to
and delivered to the addressee(s) thereof.
"[Other CMBS Series] A/B Loan Custodial Account" shall mean
the "A/B Loan Custodial Account" under the [Other CMBS Series PSA].
"[Other CMBS Series] Appraisal Reduction Amount" shall mean an
"Appraisal Reduction Amount" under the [Other CMBS Series PSA].
"[Other CMBS Series] Appraisal Reduction Event" shall mean an
"Appraisal Reduction Event" under the Series [Other CMBS Series PSA].
"[Other CMBS Series] Assumed Scheduled Payment" shall mean an
"Assumed Scheduled Payment" under the [Other CMBS Series PSA].
"[Other CMBS Series] Certificate" shall mean any of the [Other
CMBS Series] Commercial Mortgage Pass-Through Certificates.
"[Other CMBS Series] Certificateholder" shall mean a
"Certificateholder" under the [Other CMBS Series PSA].
-41-
"[Other CMBS Series] Collection Account" shall mean the
"Collection Account" under the [Other CMBS Series PSA].
"[Other CMBS Series] Companion Loan Custodial Account" shall
mean the "Companion Loan Custodial Account" under the [Other CMBS Series PSA].
"[Other CMBS Series] Depositor" shall mean the "Depositor"
under the Series [Other CMBS Series PSA].
"[Other CMBS Series] Directing Certificateholder" shall mean
the "Directing Certificateholder" under the Series [Other CMBS Series PSA].
"[Other CMBS Series] Event of Default" shall mean an "Event of
Default" under the [Other CMBS Series PSA].
"[Other CMBS Series] Fiscal Agent" shall mean the "Fiscal
Agent" under the [Other CMBS Series PSA].
"[Other CMBS Series] Master Servicer" shall mean the "Master
Servicer" under the [Other CMBS Series PSA].
"[Other CMBS Series PSA]" shall mean the _______________.
"[Other CMBS Series] Rating Agency" shall mean a "Rating
Agency" under the [Other CMBS Series PSA].
"[Other CMBS Series] Requesting Subordinate Certificateholder"
shall mean a "Requesting Subordinate Certificateholder" under the [Other CMBS
Series PSA].
"[Other CMBS Series] Servicing Standard" shall mean the
"Servicing Standard" under the [Other CMBS Series PSA].
"[Other CMBS Series] Servicing Transfer Event" shall mean a
"Servicing Transfer Event" under the [Other CMBS Series PSA].
"[Other CMBS Series] Specially Serviced Loan" shall mean a
"Specially Serviced Loan" under the [Other CMBS Series PSA].
"[Other CMBS Series] Trust" shall mean the "Trust" under the
[Other CMBS Series PSA].
"[Other CMBS Series] Trust Fund" shall mean the "Trust Fund"
under the [Other CMBS Series PSA].
"[Other CMBS Series] Trustee" shall mean the "Trustee" under
the [Other CMBS Series PSA].
"OTS" shall mean the Office of Thrift Supervision or any
successor thereto.
-42-
"Ownership Interest" shall mean, in the case of any
Certificate, any ownership or security interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
"P&I Advance" shall mean, with respect to any Mortgage Loan or
REO Loan, any advance made by the Master Servicer, the Trustee or any Fiscal
Agent pursuant to Section 4.03 (as well as, in the case of the [Separately
Serviced Mortgage Loan] or any successor REO Loan with respect thereto, any
comparable advance made by the [Separately Serviced Mortgage Loan] Master
Servicer or any other party under a [Separately Serviced Mortgage Loan]
Servicing Agreement).
"Pass-Through Rate" shall mean the per annum rate at which
interest accrues in respect of any Class of REMIC III Regular Interest
Certificates during any Interest Accrual Period, as set forth in or otherwise
calculated in accordance with Section 2.12(f).
"Payments Received After Determination Date Report" shall mean
the report in the form of and containing the information provided for in Exhibit
E-4 attached hereto.
"Percentage Interest" shall mean:
(a) with respect to any REMIC III 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 Certificate Notional Amount, as the
case may be, of such Certificate as of the Closing Date, as specified
on the face thereof, and the denominator of which is the Class
Principal Balance or Class Notional Amount, as the case may be, of the
relevant Class as of the Closing Date; and
(b) with respect to a Class Y Certificate or Class R
Certificate, the percentage interest in distributions to be made with
respect to the relevant Class, as stated on the face of such
Certificate.
"Performing Serviced Mortgage Loan" shall mean, as of any date
of determination, any Serviced Mortgage Loan as to which no Servicing Transfer
Event then exists.
"Permitted Investments" shall mean any one or more of the
following obligations or securities:
(i) direct obligations of, or obligations fully
guaranteed as to timely payment of principal and interest by, the
United States or any agency or instrumentality thereof, provided that
each such obligation is backed by the full faith and credit of the
United States;
(ii) repurchase agreements on obligations specified in
clause (i), provided that the short-term unsecured debt obligations of
the party agreeing to repurchase such obligations are at the time of
investment rated in the highest short-term debt rating category of each
of [Rating Agency No. 1] and [Rating Agency No. 2] (or, in the case of
either Rating Agency, have such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates,
as confirmed in writing to the Trustee by such Rating Agency);
-43-
(iii) federal funds, uncertificated certificates of
deposit, time deposits and bankers' acceptances of any bank or trust
company organized under the laws of the United States or any state
thereof, provided that the short-term unsecured debt obligations of
such bank or trust company are at the time of investment rated in the
highest short-term debt rating category of each of [Rating Agency No.
1] and [Rating Agency No. 2] (or, in the case of either Rating Agency,
have such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates, as confirmed in
writing to the Trustee by such Rating Agency);
(iv) commercial paper of any corporation incorporated
under the laws of the United States or any state thereof (or of any
corporation not so incorporated, provided that the commercial paper is
United States Dollar denominated and amounts payable thereunder are not
subject to any withholding imposed by any non-United States
jurisdiction), provided that such commercial paper is rated in the
highest short-term debt rating category of each of [Rating Agency No.
1] and [Rating Agency No. 2] (or, in the case of either Rating Agency,
has such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates, as confirmed in
writing to the Trustee by such Rating Agency);
(v) units of money market funds (including, subject to
the rest of this clause (v), those managed by the Trustee or its
Affiliates) which maintain a constant net asset value, provided that
such units of money market funds are rated in the highest applicable
rating category of each of [Rating Agency No. 1] and [Rating Agency No.
2] (or, in the case of either Rating Agency, have such lower rating as
will not result in an Adverse Rating Event with respect to any Class of
Rated Certificates, as confirmed in writing to the Trustee by such
Rating Agency); or
(vi) any other obligation or security that is acceptable
to the Rating Agencies and will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in
writing to the Trustee by each Rating Agency);
provided that (A) no investment described hereunder shall evidence either the
right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity, (C) no investment
described hereunder may be sold prior to stated maturity if such sale would
result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code and (D) no investment described
hereunder may have a "r" highlighter or other comparable qualifier attached to
its rating; and provided, further, that each investment described hereunder must
have (X) a predetermined fixed amount of principal due at maturity (that cannot
vary or change), (Y) a remaining maturity of not more than 30 days and an
original maturity of not more than 365 days and (Z) except in the case of a
Permitted Investment described in clause (v) above, either (1) a fixed interest
rate or (2) an interest rate that is tied to a single interest rate index plus a
single fixed spread and that moves proportionately with that index; and
provided, further, that each investment described hereunder must be a "cash flow
investment" (within the meaning of the REMIC Provisions).
"Permitted Transferee" shall mean any Transferee of a Class R
Certificate other than either a Disqualified Organization, a Non-United States
Tax Person, or a foreign permanent establishment or fixed base (each within the
meaning of the applicable income treaty) of a United States
-44-
Tax Person; provided, however, that if a Transferee is classified as a
partnership under the Code, such Transferee shall only be a Permitted Transferee
if all of its beneficial owners are United States Tax Persons and the governing
documents of the Transferee prohibit a transfer of any interest in the
Transferee to any Non-United States Tax Person.
"Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Phase I Environmental Assessment" shall mean a "Phase I
assessment" as described in and meeting the criteria of the American Society of
Testing and Materials Standard, Designation E-1527 or any successor thereto
published by the American Society of Testing Materials.
"Plan" shall mean any of those retirement plans and other
employee benefit plans, including individual retirement accounts and annuities,
Xxxxx plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including insurance company
general accounts, that are subject to ERISA or the Code.
"Plurality Class R Certificateholder" shall mean, as to any
taxable year of any REMIC Pool, the Holder of Certificates evidencing the
largest Percentage Interest in the Class R Certificates.
"Post-ARD Additional Interest" shall mean, with respect to any
ARD Mortgage Loan after its Anticipated Repayment Date, all interest accrued on
the principal balance of such ARD Mortgage Loan at the Post-ARD Additional
Interest Rate (the payment of which interest shall, under the terms of such
Mortgage Loan, be deferred until the principal balance of such Mortgage Loan has
been paid in full), together with all interest, if any, accrued at the related
Mortgage Rate on such deferred interest.
"Post-ARD Additional Interest Rate" shall mean, with respect
to any ARD Mortgage Loan after its Anticipated Repayment Date, the incremental
increase in the Mortgage Rate for such Mortgage Loan resulting from the passage
of such Anticipated Repayment Date.
"Prepayment Assumption" shall mean, for purposes of
determining the accrual of original issue discount, market discount and premium,
if any, on the Mortgage Loans, the Loan REMIC Regular Interests, the REMIC I
Regular Interests, the REMIC II Regular Interests, the Group X-2 REMIC III
Regular Interests and the Certificates for federal income tax purposes, the
assumptions that each ARD Mortgage Loan is paid in its entirety on its
Anticipated Prepayment Date and that no Mortgage Loan is otherwise prepaid prior
to its Stated Maturity Date.
"Prepayment Interest Excess" shall mean, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part
made, or any early collection of principal in the form of Insurance Proceeds or
Condemnation Proceeds received (including, in the case of the [Separately
Serviced Mortgage Loan], by the [Separately Serviced Mortgage Loan] Master
Servicer or the [Separately Serviced Mortgage Loan] Special Servicer on behalf
of the Trust), after the Due Date for such Mortgage Loan in any Collection
Period, any payment of interest accrued on such Principal Prepayment or other
early collection of principal (net of related Master Servicing Fees and,
further, net of any portion of such interest that represents Default Interest,
late payment charges or Post-ARD Additional Interest) that was actually
collected from the related Borrower or out of such Insurance
-45-
Proceeds or Condemnation Proceeds, as the case may be, and intended to cover the
period from and after such Due Date to, but not including, the date of
prepayment (exclusive, however, of any related Prepayment Premium that may have
been collected).
"Prepayment Interest Shortfall" shall mean, with respect to
any Mortgage Loan that was subject to a Principal Prepayment in full or in part
made, or any early collection of principal in the form of Insurance Proceeds or
Condemnation Proceeds received (including, in the case of the [Separately
Serviced Mortgage Loan], by the [Separately Serviced Mortgage Loan] Master
Servicer or the [Separately Serviced Mortgage Loan] Special Servicer on behalf
of the Trust), prior to the Due Date for such Mortgage Loan in any Collection
Period, the amount of interest, to the extent not collected from the related
Borrower or out of such Insurance Proceeds or Condemnation Proceeds, as the case
may be (without regard to any Prepayment Premium that may have been collected),
that would have accrued on the amount of such Principal Prepayment or other
early collection of principal during the period from the date of prepayment to,
but not including, such Due Date (less the amount of related Master Servicing
Fees and, if applicable, exclusive of Default Interest, Post-ARD Additional
Interest and late payment charges).
"Prepayment Premium" shall mean, with respect to any Mortgage
Loan, any premium, fee or other additional amount paid or payable, as the
context requires, by a Borrower in connection with a Principal Prepayment on, or
other early collection of principal of, a Mortgage Loan or any successor REO
Loan, including any such premium, fee or other additional amount that is
calculated as a percentage of the principal amount being prepaid or pursuant to
a yield maintenance formula.
"Primary Serviced Mortgage Loans" shall mean the Mortgage
Loans identified on Exhibit B-1F attached hereto.
"Primary Servicing Fee Rate" shall mean, with respect to any
Primary Serviced Mortgage Loan (or successor REO Loan), the excess, if any, of
the related Master Servicing Fee Rate over two (2) basis points.
"Primary Servicing Office" shall mean the office of the Master
Servicer or the Special Servicer, as the context may require, that is primarily
responsible for such party's servicing obligations hereunder.
"Prime Rate" shall mean the "prime rate" published in the
"Money Rates" section of The Wall Street Journal, as such "prime rate" may
change from time to time. If The Wall Street Journal ceases to publish the
"prime rate", then the Trustee, in its sole discretion, shall select an
equivalent publication that publishes such "prime rate"; and if such "prime
rate" is no longer generally published or is limited, regulated or administered
by a governmental or quasi-governmental body, then the Trustee shall select a
comparable interest rate index. In either case, such selection shall be made by
the Trustee in its sole discretion and the Trustee shall notify the Master
Servicer and the Special Servicer in writing of its selection.
"Principal Balance Certificate" shall mean any of the Class A,
Class B, Class C, Class D, Class E, Class F, Class H, Class J, Class K, Class L,
Class M, Class N, Class P, Class Q, Class S and/or Class T Certificates.
-46-
"Principal Distribution Amount" shall mean:
(a) with respect to any REMIC I Regular Interest for any
Distribution Date, an amount equal to that portion, if any, of the
Total Principal Distribution Amount for such Distribution Date that is
attributable to the Mortgage Loan or successor REO Loan, as the case
may be, that relates to such REMIC I Regular Interest; and
(b) with respect to any Class of Principal Balance
Certificates (and, accordingly, with respect to that Class's
Corresponding REMIC II Regular Interest(s)) for any Distribution Date,
an amount equal to that portion, if any, of the Total Principal
Distribution Amount for such Distribution Date that is allocable to
such Class of Certificates as provided below in this definition.
For purposes of the foregoing, for so long as the Class A Certificates remain
outstanding, the Total Principal Distribution Amount for each Distribution Date
shall be allocated to the Class A Certificates, up to the lesser of (i) the
aggregate of the Class Principal Balances of the Class A Certificates
outstanding immediately prior to such Distribution Date and (ii) the entire such
Total Principal Distribution Amount. The portion of the Total Principal
Distribution Amount for each Distribution Date that is so allocable to the Class
A Certificates (such portion, the "Class A Principal Distribution Amount")
shall, in turn, be allocated as between the Class A-1 Certificates, the Class
A-2 Certificates and the Class A-3 Certificates as follows: (i) prior to the
Senior Principal Distribution Cross-Over Date (or, if there is no Senior
Principal Distribution Cross-Over Date, prior to the Final Distribution Date),
first, to the Class A-1 Certificates, up to the lesser of (A) the Class
Principal Balance of the Class A-1 Certificates outstanding immediately prior to
the subject Distribution Date and (B) the entire such Class A Principal
Distribution Amount, second, to the Class A-2 Certificates, up to the lesser of
(A) the Class Principal Balance of the Class A-2 Certificates outstanding
immediately prior to the subject Distribution Date and (B) the entire such Class
A Principal Distribution Amount (reduced by any portion thereof allocated to the
Class A-1 Certificates pursuant to the immediately preceding clause first), and
then to the Class A-3 Certificates, up to the lesser of (A) the Class Principal
Balance of the Class A-3 Certificates outstanding immediately prior to the
subject Distribution Date and (B) the entire such Class A Principal Distribution
Amount (reduced by any portion thereof allocated to the Class A-1 and/or Class
A-2 Certificates pursuant to the immediately preceding clauses first and/or
second; and (ii) on and after the Senior Principal Distribution Cross-Over Date
(and, in any event, on the Final Distribution Date), to the Class A-1
Certificates, the Class A-2 Certificates and the Class A-3 Certificates on a pro
rata basis in accordance with the respective Class Principal Balances thereof
outstanding immediately prior to the subject Distribution Date. After the Class
Principal Balances of the Class A Certificates have been reduced to zero, the
Total Principal Distribution Amount for each Distribution Date (exclusive of any
portion thereof that may have been allocated to the Class A Certificates in
retirement thereof pursuant to the prior two sentences) shall be allocated among
the respective Classes of the Subordinate Principal Balance Certificates,
sequentially in the following order and, in the case of each such Class of
Subordinate Principal Balance Certificates, up to the lesser of (i) the Class
Principal Balance of such Class of Certificates outstanding immediately prior to
such Distribution Date and (ii) the remaining unallocated portion of the Total
Principal Distribution Amount for such Distribution Date: first, to the Class B
Certificates; second, to the Class C Certificates; third, to the Class D
Certificates; fourth, to the Class E Certificates; fifth, to the Class F
Certificates; sixth, to the Class H Certificates; seventh, to the Class J
Certificates; eighth, to the Class K Certificates; ninth, to the Class L
Certificates; tenth, to the Class M Certificates; eleventh, to the Class N
Certificates; twelfth, to the Class P Certificates; thirteenth,
-47-
to the Class Q Certificates; fourteenth, to the Class S Certificates; and
fifteenth, to the Class T Certificates.
"Principal Prepayment" shall mean any payment of principal
made by the Borrower on a Mortgage Loan that is received (including, in the case
of the [Separately Serviced Mortgage Loan], by the [Separately Serviced Mortgage
Loan] Master Servicer or the [Separately Serviced Mortgage Loan] Special
Servicer on behalf of the Trust) in advance of its scheduled Due Date and that
is not accompanied by an amount of interest (without regard to any Prepayment
Premium, Yield Maintenance Charge and/or Post-ARD Additional Interest that may
have been collected) representing scheduled interest due on any date or dates in
any Collection Period or Collection Periods subsequent to the Collection Period
of prepayment; provided that "Principal Prepayment" shall not include any such
payment of principal made out of Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds.
"Prospectus" shall mean the Base Prospectus and the Prospectus
Supplement, together.
"Prospectus Supplement" shall mean that certain prospectus
supplement dated __________, ____, relating to the Registered Certificates, that
is a supplement to the Base Prospectus.
"Proposed Plan" shall have the meaning assigned thereto in
Section 3.17(a)(iii).
"PTCE" shall mean prohibited transaction class exemption.
"PTE" shall mean prohibited transaction exemption.
"Purchase Option Period" shall have the meaning assigned
thereto in Section 3.18(c).
"Purchase Price" shall mean, with respect to any Mortgage Loan
(or related REO Property (or, in the case of any [Separately Serviced Mortgage
Loan] REO Property, the Trust's interest therein)), a cash price equal to the
aggregate of (a) the outstanding principal balance of such Mortgage Loan (or the
related REO Loan) as of the date of purchase, (b) all accrued and unpaid
interest on such Mortgage Loan (or the related REO Loan) at the related Mortgage
Rate (exclusive of any portion of such interest that represents Post-ARD
Additional Interest) to, but not including, the Due Date occurring in the
Collection Period during which the applicable purchase or repurchase occurs, (c)
all related unreimbursed Servicing Advances and all related Servicing Advances
that were previously reimbursed out of collections on other Mortgage Loans
and/or REO Properties relating to other Mortgage Loans, (d) all accrued and
unpaid Advance Interest with respect to any related Advances, and (e) solely in
the case of a repurchase by a Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement, (i) all related Special Servicing Fees,
Liquidation Fees, Advance Interest (to the extent not otherwise included in
clause (d) of this definition) and other related Additional Trust Fund Expenses,
whether paid or then owing, that have not been offset by Default Charges related
to such Mortgage Loan (or any successor REO Loan) or by any Additional Master
Servicing Compensation or Additional Special Servicing Compensation related to
such Mortgage Loan (or any successor REO Loan), and (ii) to the extent not
otherwise included in the amount described in clause (c) or clause (e)(i) of
this definition, any reasonable out-of-pocket costs and expenses incurred by the
Master Servicer, the Special Servicer, the Trustee or the agent of any of them
(on behalf of the Trust) in enforcing the obligation of such Person to purchase
such Mortgage Loan.
-48-
"Qualified Appraiser" shall mean, in connection with the
appraisal of any Mortgaged Property or REO Property, an Independent
MAI-designated appraiser with at least five years of experience in respect of
the relevant geographic location and property type.
"Qualified Institutional Buyer" shall mean a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or
security or bonding company qualified to write the related Insurance Policy in
the relevant jurisdiction.
"Qualified Mortgage" shall mean a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code.
"Rated Certificate" shall mean any of the Certificates to
which a rating has been assigned by either Rating Agency at the request of the
Depositor.
"Rated Final Distribution Date" shall mean the Distribution
Date in ________ ____.
"Rating Agency" shall mean either of [Rating Agency No. 1] and
[Rating Agency No. 2].
"[Rating Agency No. 1]" shall mean __________. or its
successor in interest. If neither such rating agency nor any successor remains
in existence, "[Rating Agency No. 1]" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
other parties hereto, and specific ratings of __________ herein referenced shall
be deemed to refer to the equivalent ratings of the party so designated.
References herein to "applicable rating category" (other than such references to
"highest applicable rating category") shall, in the case of [Rating Agency No.
1], be deemed to refer to such applicable rating category of [Rating Agency No.
1], without regard to any plus or minus or other comparable rating
qualification.
"[Rating Agency No. 2]" shall mean __________or its successor
in interest. If neither such rating agency nor any successor remains in
existence, "[Rating Agency No. 2]" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
other parties to this Agreement, and specific ratings of __________ herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of
[Rating Agency No. 2], be deemed to refer to such applicable rating category of
[Rating Agency No. 2], without regard to any plus or minus or other comparable
rating qualification.
"Realized Loss" shall mean:
(1) with respect to each defaulted Mortgage Loan as to
which a Final Recovery Determination has been made, or with respect to
any successor REO Loan as to which a Final Recovery Determination has
been made as to the related REO Property, an amount (not less than
zero) equal to (a) the unpaid principal balance of such Mortgage Loan
or successor REO Loan, as the case may be, as of the commencement of
the Collection Period in which the Final Recovery Determination was
made, plus (b) without taking into account the amount described in
-49-
subclause (1)(c) of this definition, all unpaid interest accrued in
respect of such Mortgage Loan or successor REO Loan, as the case may
be, to but not including the related Due Date in the Collection Period
in which the Final Recovery Determination was made (exclusive, however,
of any portion of such unpaid interest that constitutes Default
Interest or, in the case of an ARD Mortgage Loan after its Anticipated
Repayment Date, Post-ARD Additional Interest), minus (c) all payments
and proceeds, if any, received (including, if applicable, by the
[Separately Serviced Mortgage Loan] Master Servicer or the [Separately
Serviced Mortgage Loan] Special Servicer on behalf of the Trust) in
respect of such Mortgage Loan or successor REO Loan, as the case may
be, during the Collection Period in which such Final Recovery
Determination was made that are applied to principal of or interest
(other than Default Interest or Post-ARD Additional Interest) on such
Mortgage Loan or successor REO Loan, as the case may be;
(2) with respect to each defaulted Mortgage Loan as to
which any portion of the principal or past due interest payable
thereunder was canceled in connection with a bankruptcy, insolvency or
similar proceeding involving the related Borrower or a modification,
waiver or amendment of such Mortgage Loan granted or agreed to by the
Master Servicer or the Special Servicer pursuant to Section 3.20 (or,
in the case of the [Separately Serviced Mortgage Loan], by the
[Separately Serviced Mortgage Loan] Master Servicer or the [Separately
Serviced Mortgage Loan] Special Servicer pursuant to a [Separately
Serviced Mortgage Loan] Servicing Agreement or by the Master Servicer
or the Special Servicer pursuant to Section 12.13), the amount of such
principal or past due interest (other than any Default Interest and, in
the case of an ARD Mortgage Loan after its Anticipated Repayment Date,
Post-ARD Additional Interest) so canceled; and
(3) with respect to each defaulted Mortgage Loan as to
which the Mortgage Rate thereon has been permanently reduced and not
recaptured for any period in connection with a bankruptcy, insolvency
or similar proceeding involving the related Borrower or a modification,
waiver or amendment of such Mortgage Loan granted or agreed to by the
Master Servicer or the Special Servicer pursuant to Section 3.20 (or,
in the case of the [Separately Serviced Mortgage Loan], by the
[Separately Serviced Mortgage Loan] Master Servicer or the [Separately
Serviced Mortgage Loan]Special Servicer pursuant to a [Separately
Serviced Mortgage Loan] Servicing Agreement or by the Master Servicer
or the Special Servicer pursuant to Section 12.13), the amount of any
consequent reduction in the interest portion of each successive Monthly
Payment due thereon (each such Realized Loss to be deemed to have been
incurred on the Due Date for each affected Monthly Payment).
"Record Date" shall mean, with respect to any Distribution
Date, the last Business Day of the month immediately preceding the month in
which such Distribution Date occurs.
"Registered Certificate" shall mean any Certificate that has
been subject to registration under the Securities Act. As of the Closing Date,
the Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E and
Class F Certificates constitute Registered Certificates.
"Reimbursement Rate" shall mean the rate per annum applicable
to the accrual of Advance Interest, which rate per annum is equal to the Prime
Rate.
"REMIC" shall mean a "real estate mortgage investment conduit"
as defined in Section 860D of the Code.
-50-
"REMIC I" shall mean the segregated pool of assets designated
as such in Section 2.08(a)
"REMIC I Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and,
in each such case, designated as a "regular interest" (within the meaning of
Section 860G(a)(1) of the Code) in REMIC I. The REMIC I Regular Interests have
the designations and terms provided for in Section 2.08.
"REMIC I Remittance Rate" shall mean the per annum rate at
which interest accrues in respect of any REMIC I Regular Interest during any
Interest Accrual Period, as set forth in or otherwise calculated in accordance
with Section 2.08(f).
"REMIC I Residual Interest" shall mean the sole uncertificated
"residual interest" (within the meaning of Section 860G(a)(2) of the Code) in
REMIC I issued pursuant to this Agreement.
"REMIC II" shall mean the segregated pool of assets designated
as such in Section 2.10(a).
"REMIC II Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder
and, in each such case, designated as a "regular interest" (within the meaning
of Section 860G(a)(1) of the Code) in REMIC II. The REMIC II Regular Interests
have the designations and terms provided for in Section 2.10.
"REMIC II Regular Interest A-1" shall mean the REMIC II
Regular Interest which bears the designation "A-1".
"REMIC II Regular Interest A-2A" shall mean the REMIC II
Regular Interest which bears the designation "A-2A".
"REMIC II Regular Interest A-2B" shall mean the REMIC II
Regular Interest which bears the designation "A-2B".
"REMIC II Regular Interest A-3" shall mean the REMIC II
Regular Interest which bears the designation "A-3".
"REMIC II Regular Interest B" shall mean the REMIC II Regular
Interest which bears the designation "B".
"REMIC II Regular Interest C" shall mean the REMIC II Regular
Interest which bears the designation "C".
"REMIC II Regular Interest D" shall mean the REMIC II Regular
Interest which bears the designation "D".
"REMIC II Regular Interest E" shall mean the REMIC II Regular
Interest which bears the designation "E".
"REMIC II Regular Interest F" shall mean the REMIC II Regular
Interest which bears the designation "F".
-51-
"REMIC II Regular Interest H" shall mean the REMIC II Regular
Interest which bears the designation "H".
"REMIC II Regular Interest J" shall mean the REMIC II Regular
Interest which bears the designation "J".
"REMIC II Regular Interest K" shall mean the REMIC II Regular
Interest which bears the designation "K".
"REMIC II Regular Interest L" shall mean the REMIC II Regular
Interest which bears the designation "L".
"REMIC II Regular Interest M" shall mean the REMIC II Regular
Interest which bears the designation "M".
"REMIC II Regular Interest N" shall mean the REMIC II Regular
Interest which bears the designation "N".
"REMIC II Regular Interest P" shall mean the REMIC II Regular
Interest which bears the designation "P".
"REMIC II Regular Interest Q" shall mean the REMIC II Regular
Interest which bears the designation "Q".
"REMIC II Regular Interest S" shall mean the REMIC II Regular
Interest which bears the designation "S".
"REMIC II Regular Interest T" shall mean the REMIC II Regular
Interest which bears the designation "T".
"REMIC II Remittance Rate" shall mean the per annum rate at
which interest accrues in respect of any REMIC II Regular Interest during any
Interest Accrual Period, as set forth in or otherwise calculated in accordance
with Section 2.10(f).
"REMIC II Residual Interest" shall mean the sole
uncertificated "residual interest" (within the meaning of Section 860G(a)(2) of
the Code) in REMIC II issued pursuant to this Agreement.
"REMIC III" shall mean the segregated pool of assets
designated as such in Section 2.12(a).
"REMIC III Regular Interest Certificate" shall mean any of the
Certificates that evidence an undivided interest in one or more "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) in REMIC III.
"REMIC III Regular Interest X-2-A-2B" shall mean the "regular
interest" (within the meaning of Section 860G(a)(1) of the Code) in REMIC III
that bears the designation "X-2-A-2B".
"REMIC III Regular Interest X-2-A-3" shall mean the "regular
interest" (within the meaning of Section 860G(a)(1) of the Code) in REMIC III
that bears the designation "X-2-A-3".
-52-
"REMIC III Regular Interest X-2-B" shall mean the "regular
interest" (within the meaning of Section 860G(a)(1) of the Code) in REMIC III
that bears the designation "X-2-B".
"REMIC III Regular Interest X-2-C" shall mean the "regular
interest" (within the meaning of Section 860G(a)(1) of the Code) in REMIC III
that bears the designation "X-2-C".
"REMIC III Regular Interest X-2-D" shall mean the "regular
interest" (within the meaning of Section 860G(a)(1) of the Code) in REMIC III
that bears the designation "X-2-D".
"REMIC III Regular Interest X-2-E" shall mean the "regular
interest" (within the meaning of Section 860G(a)(1) of the Code) in REMIC III
that bears the designation "X-2-E".
"REMIC III Remittance Rate" shall mean the per annum rate at
which interest accrues in respect of any Group X-2 REMIC III Regular Interest,
as set forth in or otherwise calculated in accordance with Section 2.12(f).
"REMIC III Residual Interest" shall mean the sole
uncertificated "residual interest" (within the meaning of Section 860G(a)(2) of
the Code) in REMIC III issued pursuant to this Agreement.
"REMIC Pool" shall mean any of REMIC I, REMIC II, REMIC III or
the Loan REMICs.
"REMIC Provisions" shall mean the provisions of the federal
income tax law relating to real estate mortgage investment conduits, which
appear at Sections 860A through 860G of Subchapter M of Chapter 1 of the Code,
and related provisions, and proposed, temporary and final Treasury regulations
and any published rulings, notices and announcements promulgated thereunder, as
the foregoing may be in effect from time to time.
"REMIC Sub-Account" shall mean a sub-account of the
Distribution Account established pursuant to Section 3.04(b), which sub-account
shall constitute an asset of the Trust Fund and REMIC I, but not an asset of
either Grantor Trust Pool.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean a segregated custodial account or
accounts created and maintained by the Special Servicer pursuant to Section
3.16(b) in the name of the Trustee in trust for the Certificateholders, each of
which shall be entitled "__________ [or the name of any successor Special
Servicer], as special servicer, on behalf of __________ [or the name of any
successor Trustee], as trustee, in trust for the registered holders of Citigroup
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series __________, REO Account".
"REO Acquisition" shall mean the acquisition of any REO
Property pursuant to Section 3.09 (or, in the case of any [Separately Serviced
Mortgage Loan] REO Property, pursuant to a [Separately Serviced Mortgage Loan]
Servicing Agreement or Section 12.07, as applicable).
"REO Disposition" shall mean the sale or other disposition of
any REO Property pursuant to Section 3.18(d) (or, in the case of any [Separately
Serviced Mortgage Loan] REO Property,
-53-
pursuant to a [Separately Serviced Mortgage Loan] Servicing Agreement or Section
12.12, as applicable).
"REO Extension" shall have the meaning assigned thereto in
Section 3.16(a).
"REO Loan" shall mean the mortgage loan 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 Mortgage Loan (such terms and conditions to be applied
without regard to the default on such predecessor Mortgage Loan or the related
REO Acquisition). 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 Mortgage
Loan as of the date of the related REO Acquisition. All Monthly Payments (other
than any Balloon Payment), Assumed Monthly Payments (in the case of a Balloon
Mortgage Loan delinquent in respect of its Balloon Payment) and other amounts
due and owing, or deemed to be due and owing, in respect of the predecessor
Mortgage Loan as of the date of the related REO Acquisition, shall be deemed to
continue to be due and owing in respect of an REO Loan. In addition, all amounts
payable or reimbursable to the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent in respect of the predecessor Mortgage Loan as of
the date of the related REO Acquisition, including any unpaid or unreimbursed
Servicing Fees and Advances (together with any related unpaid Advance Interest)
and other unpaid Additional Trust Fund Expenses relating to the predecessor
Mortgage Loan, shall continue to be payable or reimbursable in the same priority
and manner pursuant to Section 3.05(a) to the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent, as the case may be, in respect of an
REO Loan.
"REO Property" shall mean a Mortgaged Property acquired by the
Special Servicer on behalf of the Trust (or, if applicable, in the case of the
[Separately Serviced Mortgage Loan] Mortgaged Property, by the [Separately
Serviced Mortgage Loan] Special Servicer (or, if Article XII is in effect, by
the Special Servicer) on behalf of, among others, the Trust) for the benefit of
the Certificateholders through foreclosure, acceptance of a deed in lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues" shall mean all income, rents, profits and
proceeds derived from the ownership, operation or leasing of any REO Property.
"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 Loan" shall mean any Serviced Mortgage
Loan (and any successor REO Loan with respect thereto) as to which an Appraisal
Trigger Event has occurred, provided that a Serviced Mortgage Loan shall cease
to be a Required Appraisal Loan if and when, following the occurrence of the
most recent Appraisal Trigger Event with respect thereto, at least 90 days have
passed without the occurrence of another Appraisal Trigger Event and any and all
Servicing Transfer Events with respect to such Mortgage Loan have ceased to
exist (other than by reason of the occurrence of an REO Acquisition or a
Liquidation Event).
-54-
"Required Claims-Paying Rating" shall mean, with respect to
any insurance carrier, a claims-paying ability or financial strength rating of
"___" or better from [Rating Agency No. 1] and "___" or better from [Rating
Agency No. 2] unless, in the case of either Rating Agency, such Rating Agency
has confirmed in writing that an insurance company with lower or fewer
claims-paying ability or financial strength ratings shall not result, in and of
itself, in an Adverse Rating Event with respect to any Class of Rated
Certificates.
"Reserve Account" shall mean any of the accounts established
and maintained pursuant to Section 3.03(d).
"Reserve Funds" shall mean, with respect to any Serviced
Mortgage Loan, any amounts delivered by the related Borrower to be held in
escrow by or on behalf of the mortgagee representing: (i) reserves for repairs,
replacements, capital improvements and/or environmental testing and remediation
with respect to the related Mortgaged Property; (ii) reserves for tenant
improvements and leasing commissions; (iii) reserves for debt service; or (iv)
amounts to be applied as a Principal Prepayment on such Mortgage Loan or held as
Additional Collateral in the event that certain leasing or other economic
criteria in respect of the related Mortgaged Property are not met.
"Resolution Extension Period" shall have the meaning assigned
thereto in Section 2.03(b).
"Responsible Officer" shall mean, when used with respect to
the Trustee, any Fiscal Agent, the Certificate Registrar or the Custodian, the
President, the Treasurer, the Secretary, any Vice President, any Assistant Vice
President, any Trust Officer, any Assistant Secretary or any other officer of
the Trustee, any Fiscal Agent, the Certificate Registrar or the Custodian, as
applicable, customarily performing functions similar to those performed by any
of the above designated officers and having direct responsibility for the
administration of this Agreement.
"Restricted Servicer Reports" shall mean each of the CMSA
Servicer Watch List, the CMSA Operating Statement Analysis Report, the CMSA NOI
Adjustment Worksheet, the CMSA Financial File and the CMSA Comparative Financial
Status Report.
"Rule 144A Global Certificate" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates, a single Global Certificate, or
multiple Global Certificates collectively, registered in the name of the
Depository or its nominee, in definitive, fully registered form without interest
coupons, each of which Certificates bears a Qualified Institutional Buyer CUSIP
number.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"[Seller No. 2]" shall have the meaning assigned thereto in
the Preliminary Statement to this Agreement.
"[Seller No. 2] Mortgage Loans" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement
"[Seller No. 2] Mortgage Loan Purchase Agreement" shall have
the meaning assigned thereto in the Preliminary Statement to this Agreement.
-55-
"[Seller No. 3]" shall have the meaning assigned thereto in
the Preliminary Statement to this Agreement.
"[Seller No. 3] Mortgage Loan" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"[Seller No. 3] Mortgage Loan Purchase Agreement" shall have
the meaning assigned thereto in the Preliminary Statement to this Agreement.
"Senior Certificate" shall mean any of the Class A, Class X-1
and/or Class X-2 Certificates.
"Senior Principal Distribution Cross-Over Date" shall mean the
first Distribution Date as of which the aggregate of the Class Principal
Balances of the Class A-1 Certificates, the Class A-2 Certificates and the Class
A-3 Certificates outstanding immediately prior thereto equals or exceeds the sum
of (a) the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date, plus (b) the lesser of
(i) the Total Principal Distribution Amount for such Distribution Date and (ii)
the portion of the Standard Available Distribution Amount for such Distribution
Date that will remain after all distributions of interest to be made on the
Senior Certificates on such Distribution Date pursuant to Section 4.01(a) have
been so made.
"[Separately Serviced Mortgage Loan] A/A Intercreditor
Agreement" shall mean the A Notes Intercreditor Agreement, dated as of ________,
____, by and between [applicable Mortgage Loan Seller], as holder of the
[Separately Serviced Mortgage Loan] Pari Passu Companion Loan, and [applicable
Mortgage Loan Seller], as holder of the [Separately Serviced Mortgage Loan].
"[Separately Serviced Mortgage Loan] A/B Intercreditor
Agreement" shall mean the Intercreditor and Servicing Agreement, dated as of
________, ____, by and between [applicable Mortgage Loan Seller], as holder of
the [Separately Serviced Mortgage Loan] Pari Passu Companion Loan and the
[Separately Serviced Mortgage Loan], and [applicable Mortgage Loan Seller], as
holder of the [Separately Serviced Mortgage Loan] Subordinate Companion Loan.
"[Separately Serviced Mortgage Loan] Borrower" shall mean the
Borrower under the [Separately Serviced Mortgage Loan].
"[Separately Serviced Mortgage Loan] Change of Servicing
Control Event" shall mean any event that, in accordance with the [Separately
Serviced Mortgage Loan] Intercreditor Agreements, would result in the
[Separately Serviced Mortgage Loan] Loan Group being serviced under this
Agreement rather than under the [Other CMBS Series PSA].
"[Separately Serviced Mortgage Loan] Companion Loans" shall
mean, together, the [Separately Serviced Mortgage Loan] Pari Passu Companion
Loan and the [Separately Serviced Mortgage Loan]Subordinate Companion Loan.
"[Separately Serviced Mortgage Loan] Custodial Account" shall
have the meaning assigned thereto in Section 12.04.
-56-
"[Separately Serviced Mortgage Loan] Intercreditor Agreements"
shall mean, together, the [Separately Serviced Mortgage Loan] A/A Intercreditor
Agreement and the [Separately Serviced Mortgage Loan] A/B Intercreditor
Agreement.
"[Separately Serviced Mortgage Loan] Loan Group" shall mean,
collectively, the [Separately Serviced Mortgage Loan] and the [Separately
Serviced Mortgage Loan] Companion Loans.
"[Separately Serviced Mortgage Loan] Master Servicer" shall
mean the master servicer of the [Separately Serviced Mortgage Loan] Loan Group
under any [Separately Serviced Mortgage Loan] Servicing Agreement.
"[Separately Serviced Mortgage Loan]" shall mean the Mortgage
Loan secured by a Mortgage on the [Separately Serviced Mortgage Loan] Mortgaged
Property.
"[Separately Serviced Mortgage Loan] Mortgaged Property" shall
mean the Mortgaged Property identified on the Mortgage Loan Schedule as
"[Separately Serviced Mortgage Loan]".
"[Separately Serviced Mortgage Loan] Pari Passu Companion
Loan" shall mean the mortgage loan secured by the same Mortgage as the
[Separately Serviced Mortgage Loan] on the [Separately Serviced Mortgage Loan]
Mortgaged Property, which mortgage loan is pari passu in right of payment with
the [Separately Serviced Mortgage Loan] and, as of the Closing Date, directly
backs the _______________ Commercial Mortgage Pass-Through Certificates.
"[Separately Serviced Mortgage Loan] REO Loan" shall mean any
REO Loan related to the [Separately Serviced Mortgage Loan].
"[Separately Serviced Mortgage Loan] REO Property" shall mean
the [Separately Serviced Mortgage Loan] Mortgaged Property, if it is acquired on
behalf of the respective holders of the [Separately Serviced Mortgage Loan] Loan
Group at a time that the Trust is one of those holders.
"[Separately Serviced Mortgage Loan] Servicing Agreement"
shall mean any servicing agreement (other than this Agreement) pursuant to which
the [Separately Serviced Mortgage Loan] Loan Group and any [Separately Serviced
Mortgage Loan] REO Property is to be serviced and/or administered, which is, as
of the Closing Date, in accordance with the [Separately Serviced Mortgage Loan]
Intercreditor Agreements and the [Other CMBS Series PSA].
"[Separately Serviced Mortgage Loan] Special Servicer" shall
mean the special servicer with respect to the [Separately Serviced Mortgage
Loan] Loan Group under any [Separately Serviced Mortgage Loan] Servicing
Agreement.
"[Separately Serviced Mortgage Loan] Subordinate Companion
Loan" shall mean the mortgage loan secured by the same Mortgage as the
[Separately Serviced Mortgage Loan] on the [Separately Serviced Mortgage Loan]
Mortgaged Property, which mortgage loan is subordinate in right of payment to
the [Separately Serviced Mortgage Loan] and, as of the Cut-off Date, is held by
__________.
"Serviced Mortgage Loan" shall mean any Mortgage Loan other
than the [Separately Serviced Mortgage Loan].
-57-
"Servicing Account" shall mean any of the accounts established
and maintained pursuant to Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses, including reasonable attorneys'
fees and expenses, paid or to be paid, as the context requires, out of its own
funds, by the Master Servicer or the Special Servicer (or, if applicable, the
Trustee or any Fiscal Agent) in connection with the servicing of a Mortgage Loan
as to which a default, delinquency or other unanticipated event has occurred or
is imminent, or in connection with the administration of any REO Property,
including (1) any such costs and expenses associated with (a) compliance with
the obligations of the Master Servicer and/or the Special Servicer set forth in
Sections 2.03, 3.03(c) and 3.09, (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property securing any such Mortgage
Loan or of any REO Property, including the cost of any "force placed" insurance
policy purchased by the Master Servicer or the Special Servicer to the extent
such cost is allocable to a particular Mortgaged Property that the Master
Servicer or the Special Servicer is required to cause to be insured pursuant to
Section 3.07(a), (c) obtaining any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds in respect of any such Mortgage Loan or any REO Property,
(d) any enforcement or judicial proceedings with respect to any such Mortgage
Loan, including foreclosures and similar proceedings, (e) the operation,
management, maintenance and liquidation of any REO Property, (f) obtaining any
Appraisal required to be obtained hereunder, and (g) UCC filings (to the extent
that the costs thereof are not reimbursed by the related Borrower), (2) the
reasonable and direct out-of-pocket travel expenses incurred by the Special
Servicer in connection with performing inspections pursuant to Section 3.12(a),
and (3) any other expenditure which is expressly designated as a Servicing
Advance herein; provided that, notwithstanding anything to the contrary,
"Servicing Advances" shall not include (A) allocable overhead of the Master
Servicer or the Special Servicer, such as costs for office space, office
equipment, supplies and related expenses, employee salaries and related expenses
and similar internal costs and expenses, (B) costs incurred by any party hereto
or any Affiliate thereof in connection with its purchase of any Mortgage Loan or
REO Property pursuant to any provision of this Agreement or (C) costs or
expenses expressly required under this Agreement to be borne by the Master
Servicer or the Special Servicer.
"Servicing Fees" shall mean, with respect to any Mortgage Loan
or REO Loan, the Master Servicing Fee and, if applicable, the Special Servicing
Fee.
"Servicing File" shall mean, with respect to any Serviced
Mortgage Loan, any documents (other than documents required to be part of the
related Mortgage File, but including any correspondence file) in the possession
or under the control of, or required (pursuant to the applicable Mortgage Loan
Purchase Agreement, this Agreement or otherwise) to be delivered to, as the
context may require, the Master Servicer or the Special Servicer and relating to
the origination and servicing of such Mortgage Loan or the administration of any
related REO Property, including any insurance certificates (and, if available,
policies) relating to hazard insurance maintained by the related Borrower with
respect to the related Mortgaged Property that are in the possession of the
Master Servicer or the Special Servicer, as the case may be, at any particular
time.
"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 Mortgage Loans, whose name and
specimen signature appear on a list of servicing officers furnished by such
party to the Depositor on the Closing Date, as such list may be amended from
time to time by the
-58-
Master Servicer or the Special Servicer, as applicable. The Depositor shall
provide a copy of any such list received by it to the Trustee, upon request.
"Servicing Return Date" shall mean, with respect to any
Corrected Serviced Mortgage Loan, the date that servicing thereof is returned by
the Special Servicer to the Master Servicer pursuant to Section 3.21(a).
"Servicing Standard" shall mean, with respect to each of the
Master Servicer and the Special Servicer, to service and administer the Mortgage
Loans and any REO Properties for which it is responsible hereunder: (a) with the
same care, skill, prudence and diligence as it services and administers
comparable mortgage loans and real properties on behalf of third parties or on
behalf of itself, whichever is the higher standard, giving due consideration to
customary and usual standards of practice utilized by prudent institutional
commercial mortgage loan servicers under comparable circumstances; (b) with a
view to (i) the timely collection of all scheduled payments of principal and
interest under the Mortgage Loans, (ii) the full collection of all Prepayment
Premiums that may become payable under the Mortgage Loans, (iii) if a Mortgage
Loan comes into and continues in default, the maximization of the recovery on
such Mortgage Loan to the Certificateholders (as a collective whole) on a
present value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the related Net
Mortgage Rate) and (iv) to the extent necessary to offset all Additional Trust
Fund Expenses (including Advance Interest) that may be paid, or for which the
Trust may be reimbursed, therefrom, the collection of all Default Charges that
may become payable under the Mortgage Loans, insofar as those Default Charges do
not constitute Additional Master Servicing Compensation or Additional Special
Servicing Compensation, as applicable; and (c) without regard to (i) any
relationship that the Master Servicer or the Special Servicer, as the case may
be, or any of its Affiliates may have with the related Borrower, with any
Mortgage Loan Seller or with any other party to this Agreement, (ii) the
ownership of any Certificate by the Master Servicer or the Special Servicer, as
the case may be, or any of its Affiliates, (iii) the obligation of the Master
Servicer to make Advances or otherwise to incur servicing expenses, (iv) the
obligation of the Special Servicer to make, or direct the Master Servicer to
make, Servicing Advances or otherwise to incur servicing expenses, (v) the right
of the Master Servicer or the Special Servicer, as the case may be, or any of
its Affiliates to receive reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or with respect to any particular
transaction, (vi) any ownership, servicing and/or management by the Master
Servicer or the Special Servicer, as the case may be, or any of its Affiliates
of any other mortgage loans or real property, (vii) the ownership by the Master
Servicer or the Special Servicer, as the case may be, or any of its Affiliates
of any other debt owed by, or secured by ownership interests in, any of the
Borrowers or any Affiliate of a Borrower, and (viii) the obligations of the
Master Servicer or the Special Servicer, as the case may be, or any of its
Affiliates to repurchase any Mortgage Loan from the Trust Fund, or to indemnify
the Trust Fund, in any event as a result of a Material Breach or a Material
Document Defect; provided that the foregoing standards shall apply with respect
to the [Separately Serviced Mortgage Loan] and any [Separately Serviced Mortgage
Loan] REO Property only to the extent that the Master Servicer or Special
Servicer has any express duties or rights to grant consent with respect thereto
pursuant to Articles I through XI.
"Servicing Transfer Date" shall mean, with respect to any
Specially Serviced Mortgage Loan, the date that servicing thereof is transferred
by the Master Servicer to the Special Servicer pursuant to Section 3.21(a).
-59-
"Servicing Transfer Event" shall mean, with respect to any
Serviced Mortgage Loan, any of the following events:
(a) the related Borrower has failed to make when due any
Monthly Payment, including a Balloon Payment, or any other payment
required under the related Mortgage Loan Documents, which failure
continues, or the Master Servicer determines, in its reasonable
judgment, will continue, unremedied (and unwaived) for 60 days beyond
the date on which the subject payment was due (or, in the case of a
delinquent Balloon Payment, either for 90 days beyond the date on which
such Balloon Payment was due or, if the Borrower has delivered prior to
the maturity date a refinancing commitment reasonably acceptable to the
Special Servicer, for such longer period, not to exceed 150 days beyond
the date on which that Balloon Payment was due, during which the
refinancing would occur); or
(b) the Master Servicer or the Special Servicer has
determined, in its reasonable judgment, that a default in making a
Monthly Payment, including a Balloon Payment, or any other material
payment required under the related Mortgage Loan Documents is likely to
occur within 30 days, and either (i) the related Borrower has requested
a material modification of the payment terms of the related Mortgage
Loan, which modification the Master Servicer, in its reasonable
judgment, determines is necessary to avoid a monetary or a material
non-monetary default, or (ii) such default is likely to remain
unremedied for at least the period contemplated by clause (a) of this
definition; or
(c) the Master Servicer has determined, in its reasonable
judgment, that a default, other than as described in clause (a) or
clause (b) above, has occurred that may materially impair the value of
the related Mortgaged Property as security for the subject Mortgage
Loan, which default has continued unremedied for the applicable cure
period under the terms of the Mortgage Loan (or, if no cure period is
specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary action
against the related Borrower under any present or future federal or
state bankruptcy, insolvency or similar law or the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceeding, or
for the winding-up or liquidation of its affairs, shall have been
entered against the related Borrower, provided that if such decree or
order shall have been dismissed, discharged or stayed within 60 days
thereafter the Mortgage Loan shall not be a Specially Serviced Mortgage
Loan and no Special Servicing Fees, Workout Fees or Liquidation Fees
shall be payable with respect thereto; or
(e) the related Borrower shall have consented to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceeding of or relating to such Borrower or of or relating
to all or substantially all of its property; or
(f) the related Borrower shall have admitted in writing
its inability to pay its debts generally as they become due, filed a
petition to take advantage of any applicable insolvency or
reorganization statute, made an assignment for the benefit of its
creditors, or voluntarily suspended payment of its obligations; or
-60-
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property or Properties;
provided that an Acceptable Insurance Default will not, in and of itself, be a
Servicing Transfer Event.
A Servicing Transfer Event with respect to any Serviced
Mortgage Loan shall cease to exist:
(w) in the case of the circumstances described in clause
(a) above, if and when the related Borrower has made three consecutive
full and timely Monthly Payments under the terms of such Mortgage Loan
(as such terms may be changed or modified in connection with a
bankruptcy or similar proceeding involving the related Borrower or by
reason of a modification, waiver or amendment granted or agreed to by
the Master Servicer or the Special Servicer pursuant to Section 3.20);
(x) in the case of the circumstances described in clauses
(b), (d), (e) and (f) above, if and when such circumstances cease to
exist in the reasonable judgment of the Special Servicer;
(y) in the case of the circumstances described in clause
(c) above, if and when such default is cured in the reasonable judgment
of the Special Servicer; and
(z) in the case of the circumstances described in clause
(g) above, if and when such proceedings are terminated.
"Sole Certificateholder(s)" shall mean any Holder (or, to the
extent that they are voluntarily acting as a collective whole (as evidenced in a
writing signed by all the affected Holders), any group of Holders) of 100% of
the Certificates.
"Special Servicer" shall mean ______, 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 Mortgage Loan and each REO Loan that relates to an
Administered REO Property, the fee designated as such and payable to the Special
Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Loan that relates to an
Administered REO Property, ____% per annum.
"Specially Designated Defaulted Mortgage Loan" shall mean a
Specially Serviced Mortgage Loan that is delinquent 120 days or more in respect
of any Balloon Payment or 60 days or more in respect of any other Monthly
Payment, such delinquency to be determined without giving effect to any grace
period permitted by the related Mortgage, the related Mortgage Note or other
related Mortgage Loan Document and without regard to any acceleration of
payments under the related Mortgage, the related Mortgage Note and other related
Mortgage Loan Documents.
-61-
"Specially Designated Mortgage Loan Documents" shall mean:
(a) with respect to any Serviced Mortgage Loan, subject
to Sections 1.05 and 2.01, the following documents on a collective
basis--
(i) the original executed Mortgage Note (together with
all related allonges) or, alternatively, if the
original executed Mortgage Note has been lost, a lost
note affidavit and indemnity with a copy of such
Mortgage Note,
(ii) the items (exclusive of intervening assignments)
referred to in clauses (a)(ii) and (a)(iii) of the
definition of "Mortgage File",
(iii) the original or a copy of the policy of lender's
title insurance or, if such policy has not yet been
issued, a "marked-up" pro forma title policy or
commitment for title insurance marked as binding and
countersigned or evidenced as binding by escrow
letter or closing instructions,
(iv) the original or a copy of any Ground Lease and Ground
Lease estoppel,
(v) the original of any Letter(s) of Credit constituting
Additional Collateral,
(vi) originals or copies of any agreements evidencing
material modifications of the foregoing documents and
any assumption agreements,
(vii) if the subject Mortgage Loan has a Cut-off Date
Principal Balance greater than 2% of the Initial Pool
Balance, the original or a copy of any cash
management agreement related to such Mortgage Loan,
and
(viii) if the subject Mortgage Loan is an Early Defeasance
Mortgage Loan, the original or a copy of the related
Loan REMIC Declaration; and
(b) with respect to the [Separately Serviced Mortgage
Loan], the following documents on a collective basis--
(i) the original executed Mortgage Note (together with
all related allonges) or, alternatively, if the
original executed Mortgage Note has been lost, a lost
note affidavit and indemnity with a copy of such
Mortgage Note; and
(ii) the original or a copy of the related Loan REMIC
Declaration;
provided that, whenever the term "Specially Designated Mortgage Loan Documents"
is used to refer to documents actually received by the Trustee, such term shall
not be deemed to include such documents and instruments referred to in clause
(a) or clause (b), as applicable, of this definition unless they are actually so
received.
"Specially Serviced Mortgage Loan" shall mean any Serviced
Mortgage Loan as to which there then exists a Servicing Transfer Event. Upon the
occurrence of a Servicing Transfer Event with respect to any Serviced Mortgage
Loan, such Mortgage Loan shall remain a Specially Serviced Mortgage Loan until
the earliest of (i) its removal from the Trust Fund, (ii) an REO Acquisition
with
-62-
respect to the related Mortgaged Property, and (iii) the cessation of all
existing Servicing Transfer Events with respect to such Mortgage Loan.
"Standard Available Distribution Amount" shall mean, with
respect to any Distribution Date, an amount equal to: (a) the sum of, without
duplication, (i) all amounts on deposit in the Distribution Account as of 11:00
a.m., New York City time, on such Distribution Date, (ii) to the extent not
included in the amount described in clause (a)(i) of this definition, any P&I
Advances and/or Compensating Interest Payments made with respect to the Mortgage
Pool for distribution on such Distribution Date, (iii) to the extent not
included in the amount described in clause (a)(i) of this definition, the
aggregate amount transferred (pursuant to Section 3.05(d)) from the Excess
Liquidation Proceeds Account to the Distribution Account for distribution on
such Distribution Date, and (iv) to the extent not included in the amount
described in clause (a)(i) of this definition, if such Distribution Date occurs
during March ____ or during March of any year thereafter, the aggregate of the
Interest Reserve Amounts with respect to the Interest Reserve Loans transferred
from the Interest Reserve Account to the Distribution Account during such month
of March for distribution on such Distribution Date; net of (b) any portion of
the amounts described in clause (a) of this definition that represents, without
duplication, one or more of the following--(i) any collected Monthly Payment
that is due with respect to a Mortgage Loan on a Due Date following the end of
the Collection Period for such Distribution Date, (ii) any payments of principal
(including Principal Prepayments) and interest, Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received (including, if applicable, by the
[Separately Serviced Mortgage Loan] Master Servicer or the [Separately Serviced
Mortgage Loan] Special Servicer, on behalf of the Trust) on any Mortgage Loan or
REO Property after the end of the Collection Period for such Distribution Date,
(iii) any Prepayment Premiums and/or Post-ARD Additional Interest; (iv) any
amounts payable or reimbursable to any Person from the Distribution Account
pursuant to clauses (ii) through (vi) of Section 3.05(b), (v) if such
Distribution Date occurs during February ____ or during February of any year
thereafter or during January ____ or during January of any year thereafter that
is not a leap year, the aggregate of the Interest Reserve Amounts with respect
to the Interest Reserve Loans to be withdrawn (pursuant to Section 3.04(c) and
Section 3.05(b)(vi)) from the Distribution Account and deposited into the
Interest Reserve Account during such month of February or such month of January,
as the case may be, and held for future distribution, and (vi) any amounts
deposited in the Distribution Account in error; provided that the Standard
Available Distribution Amount for the Final Distribution Date shall be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(v) of this
definition.
"Startup Day" shall mean, with respect to each REMIC Pool, the
day designated as such in Section 2.08(a) (in the case of REMIC I), Section
2.10(a) (in the case of REMIC II), Section 2.12(a) (in the case of REMIC III) or
the related Loan REMIC Declaration (in the case of any Loan REMIC), as
applicable.
"Stated Maturity Date" shall mean, with respect to any
Mortgage Loan, the Due Date specified in the related Mortgage Note (as in effect
on the Closing Date) on which the last payment of principal is due and payable
under the terms of such Mortgage Note, without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Borrower or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or the Special
Servicer pursuant to Section 3.20 (or, in the case of the [Separately Serviced
Mortgage Loan], by the [Separately Serviced Mortgage Loan] Master Servicer or
the [Separately Serviced Mortgage Loan] Special Servicer pursuant to a
[Separately Serviced Mortgage
-63-
Loan] Servicing Agreement or by the Master Servicer or the Special Servicer
pursuant to Section 12.13) and, in the case of an ARD Mortgage Loan, without
regard to its Anticipated Repayment Date.
"Stated Principal Balance" shall mean, with respect to any
Mortgage Loan (and any successor REO Loan with respect thereto), a principal
balance which (a) initially shall equal the Cut-off Date Principal Balance of
such Mortgage Loan, and (b) shall be permanently reduced on each Distribution
Date (to not less than zero) by (i) that portion, if any, of the Total Principal
Distribution Amount for such Distribution Date attributable to such Mortgage
Loan (or successor REO Loan), and (ii) the principal portion of any Realized
Loss incurred in respect of such Mortgage Loan (or successor REO Loan) during
the Collection Period for such Distribution Date, and (iii) the amount of any
and all related Special Servicing Fees, Liquidation Fees and/or Advance Interest
that were applied, in accordance with the definition of "Total Principal
Distribution Amount", to reduce the portion of the Total Principal Distribution
Amount for such Distribution Date attributable to such Mortgage Loan (or
successor REO Loan); provided that, if a Liquidation Event occurs in respect of
any Mortgage Loan or related REO Property during any Collection Period, then the
"Stated Principal Balance" of such Mortgage Loan or of the related REO Loan, as
the case may be, shall be zero commencing as of such Distribution Date.
"Statement to Certificateholders" shall have the meaning
assigned thereto in Section 4.02(a).
"Subordinate Certificate" shall mean any of the Subordinate
Principal Balance Certificates and/or the Class R Certificates.
"Subordinate Principal Balance Certificate" shall mean any of
the Principal Balance Certificates other than the Class A Certificates.
"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 Mortgage Loans as provided in Section 3.22.
"Tax Matters Person" shall mean, with respect to any REMIC
Pool, the Person designated as the "tax matters person" of such REMIC Pool in
the manner provided under Treasury regulation section 1.860F-4(d) and temporary
Treasury regulation section 301.6231(a)(7)-1T, which Person shall, pursuant to
Section 10.01(b), be the Plurality Class R Certificateholder.
"Tax Returns" shall mean the federal income tax return on IRS
Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holder of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each REMIC Pool due to its classification as a REMIC
under the REMIC Provisions, together with any and all other information, reports
or returns that may be required to be furnished to the Certificateholders or
filed with the IRS under any applicable provisions of federal tax law or any
other governmental taxing authority under applicable state or local tax laws.
"Termination Price" shall have the meaning assigned thereto in
Section 9.01.
-64-
"Total Principal Distribution Amount" shall mean, with respect
to any Distribution Date prior to the Final Distribution Date, an amount equal
to the aggregate (without duplication) of the following:
(a) all payments of principal (including Principal
Prepayments) received on the Serviced Mortgage Loans during the
Collection Period for such Distribution Date, in each case net of any
portion of the particular payment that represents a Late Collection of
principal for which a P&I Advance was previously made for a prior
Distribution Date or that represents the principal portion of a Monthly
Payment due on or before the Cut-off Date or on a Due Date subsequent
to the end of the Collection Period for such Distribution Date;
(b) all scheduled payments of principal received (other
than as part of a Principal Prepayment) on the Serviced Mortgage Loans
prior to the Collection Period for such Distribution Date that were, in
each case, due with respect to the subject Mortgage Loan for its Due
Date in the month of such Distribution Date;
(c) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received on the Serviced Mortgage Loans during the
Collection Period for such Distribution Date, that were identified and
applied by the Master Servicer as recoveries of principal of such
Mortgage Loans in accordance with Section 1.03, in each case net of any
portion of such proceeds that represents a Late Collection of principal
due on or before the Cut-off Date or for which a P&I Advance was
previously made for a prior Distribution Date;
(d) all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds and REO Revenues received in respect of any
Administered REO Properties during the Collection Period for such
Distribution Date, that were identified and applied by the Master
Servicer as recoveries of principal of the related REO Loans in
accordance with Section 1.03, in each case net of any portion of such
proceeds and/or revenues that represents a Late Collection of principal
due on or before the Cut-off Date or for which a P&I Advance was
previously made for a prior Distribution Date;
(e) either (i) if the [Separately Serviced Mortgage Loan]
Loan Group or any [Separately Serviced Mortgage Loan] REO Property is
then being serviced and administered pursuant to a [Separately Serviced
Mortgage Loan] Servicing Agreement, all amounts received by the Master
Servicer on behalf of the Trust as remittances under such [Separately
Serviced Mortgage Loan] Servicing Agreement on or with respect to the
[Separately Serviced Mortgage Loan] or any [Separately Serviced
Mortgage Loan] REO Loan since the preceding Distribution Date (or, in
the case of the initial Distribution Date, since the Closing Date) that
represents a payment, advance or other recovery of principal with
respect to such Mortgage Loan or REO Loan, as the case may be,
exclusive of any portion of such amounts that represents a Late
Collection of principal due on or before the Cut-off Date or for which
a P&I Advance was previously made under this Agreement for a prior
Distribution Date, or (ii) if the [Separately Serviced Mortgage Loan]
Loan Group or any [Separately Serviced Mortgage Loan] REO Property is
then being serviced and administered pursuant to Article XII, the total
of all amounts described in clauses (a) through (d) above with respect
to the [Separately Serviced Mortgage Loan] or any [Separately Serviced
Mortgage Loan] REO Loan (calculated as if the [Separately
-65-
Serviced Mortgage Loan] was a Serviced Mortgage Loan or any [Separately
Serviced Mortgage Loan] REO Property was an Administered REO Property,
as applicable); and
(f) the respective principal portions of all P&I Advances
made under this Agreement with respect to the Mortgage Pool for such
Distribution Date;
provided that, if any Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds were received and/or a Final Recovery Determination was made with
respect to any Mortgage Loan or REO Property during the related Collection
Period, then that portion, if any, of the aggregate amount described in clauses
(a) through (e) above that is specifically attributable to such Mortgage Loan or
REO Property, as the case may be, shall be reduced (to not less than zero) by
any Special Servicing Fees, Liquidation Fees and/or Advance Interest with
respect to such Mortgage Loan or REO Property, as the case may be, that was paid
hereunder from a source other than related Default Charges during the related
Collection Period.
With respect to the Final Distribution Date, the "Total
Principal Distribution Amount" shall equal the aggregate Stated Principal
Balance of the entire Mortgage Pool outstanding immediately following the
preceding Distribution Date.
"Transfer" shall mean any direct or indirect transfer, sale,
pledge, hypothecation, or other form of assignment of any Ownership Interest in
a Certificate.
"Transfer Affidavit and Agreement" shall have the meaning
assigned thereto in Section 5.02(d).
"Transferee" shall mean any Person who is acquiring by
Transfer any Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing by
Transfer any Ownership Interest in a Certificate.
"Treasury Rate" shall have the meaning assigned thereto in
Section 4.01(d).
"Trust" shall mean the trust created hereby.
"Trust Fund" shall mean, collectively, all of the assets of
all the REMIC Pools, the Grantor Trust Pools and the Group Terrorism Insurance
Policy Reserve Fund.
"Trustee" shall mean ______, in its capacity as trustee
hereunder, or any successor trustee appointed as herein provided.
"Trustee's Fee" shall mean, with respect to any Mortgage Loan
or successor REO Loan, the fee designated as such and payable to the Trustee
pursuant to Section 8.05(a).
"Trustee's Fee Rate" shall mean ____% per annum.
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
-66-
"UCC Financing Statement" shall mean a financing statement
filed or to be filed pursuant to the UCC.
"UCC Financing Statement Amendment" shall mean a financing
statement amendment filed, or to be filed, pursuant to the UCC.
"Uncertificated Principal Balance" shall mean the principal
balance outstanding from time to time of any REMIC I Regular Interest
(calculated in accordance with Section 2.08(e) hereof) or any REMIC II Regular
Interest (calculated in accordance with Section 2.10(e) hereof).
"Underwriter Exemption" shall mean PTE 91-23, as such may be
amended from time to time, including by PTE 2000-58.
"Underwriters" shall mean, collectively, CGMI, ____, ____ and
____.
"Unfunded Principal Balance Reduction" shall mean any
reduction made in the Class Principal Balance of any Class of Principal Balance
Certificates pursuant to Section 4.04(a), the Uncertificated Principal Balance
of any REMIC II Regular Interest pursuant to Section 4.04(b) or the
Uncertificated Principal Balance of any REMIC I Regular Interest pursuant to
Section 4.04(c).
"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 political
subdivision thereof, or an estate whose income from sources without the United
States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States, or a trust if a court within the United States is able
to exercise primary supervision over the administration of the trust and one or
more United States Tax Persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code.
"Unrestricted Servicer Reports" shall mean each of the files
and reports comprising the CMSA Investor Reporting Package (excluding the CMSA
Bond Level File, the CMSA Collateral Summary File and the Restricted Servicer
Reports).
"USAP" shall mean the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America.
"USPAP" shall mean the Uniform Standards of Professional
Appraisal Practices.
"Voting Rights" shall mean the voting rights evidenced by the
respective Certificates. At all times during the term of this Agreement, ___% of
the Voting Rights shall be allocated among all the Holders of the various
Classes of Principal Balance Certificates in proportion to the respective Class
Principal Balances of such Classes, ___% of the Voting Rights shall be allocated
between the Holders of the two Classes of Interest Only Certificates in
proportion to the respective Class Notional Amounts of such Classes, and ___% of
the Voting Rights shall be allocated to the Holders of the Class R and Class Y
Certificates. Voting Rights allocated to a particular Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the respective Percentage Interests evidenced by their respective
Certificates.
-67-
"Workout Fee" shall mean, with respect to each Corrected
Serviced Mortgage Loan, the fee designated as such in, and payable to the
Special Servicer or a predecessor thereto in connection with certain recoveries
on a Corrected Serviced Mortgage Loan pursuant to, the second paragraph of
Section 3.11(c).
"Workout Fee Rate" shall mean, with respect to each Corrected
Serviced Mortgage Loan, ____%.
"Yield Maintenance Certificate" shall mean any of the Class A,
Class B, Class C, Class D, Class E, Class F, Class H, Class J and/or Class K
Certificates.
"Yield Maintenance Discounting Horizon" means, with respect to
any Mortgage Loan, the time horizon used to select the appropriate U.S. Treasury
Rate that is used when calculating a yield maintenance charge. If the value
specified in the column labeled "Yield Maintenance Discounting Horizon" on the
Mortgage Loan Schedule is "Maturity", the Yield Maintenance Discounting Horizon
is the scheduled maturity date or Anticipated Repayment Date, as applicable, of
the subject Mortgage Loan. If the value specified in the column labeled "Yield
Maintenance Discounting Horizon" on the Mortgage Loan Schedule is "WAL", the
Yield Maintenance Discounting Horizon is the remaining weighted average life to
maturity of the subject Mortgage Loan.
"Yield Maintenance Interest Rate" shall mean, with respect to
any Mortgage Loan, the annualized yield (for purposes of this definition, the
"Yield Rate") on securities issued by the United States Treasury having a
maturity corresponding to such Mortgage Loan's Yield Maintenance Discounting
Horizon, as the Yield Rate is quoted using the applicable Yield Maintenance
Treasury Source and Selection Date.
The Yield Maintenance Interest Rate should be increased by x
basis points if the value specified for the subject Mortgage Loan in the column
labeled "Yield Maintenance Interest Rate" on the Mortgage Loan Schedule is
"Treasury +x" or by zero (0) basis points if the value is "Treasury Flat" or
"T-Flat".
The Yield Maintenance Interest Rate, as adjusted in the
preceding paragraph, shall be converted to a monthly equivalent yield if the
value for the subject Mortgage Loan specified in the column labeled "Yield
Maintenance Interest Rate Converted to Monthly Mortgage Rate" on the Mortgage
Loan Schedule is "Yes".
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the
meanings assigned to them in this Agreement and include the plural as
well as the singular, and the use of any gender herein shall be deemed
to include the other gender;
(ii) accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with GAAP;
-68-
(iii) references herein to "Articles", "Sections",
"Subsections", "Paragraphs" and other subdivisions without reference to
a document are to designated Articles, Sections, Subsections,
Paragraphs and other subdivisions of this Agreement;
(iv) a reference to a Subsection without further
reference to a Section is a reference to such Subsection as contained
in the same Section in which the reference appears, and this rule shall
also apply to Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder",
"hereto", "hereby" and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(vi) the terms "include" and "including" shall
mean without limitation by reason of enumeration.
SECTION 1.03. Certain Calculations in Respect of the
Mortgage Pool.
(a) All amounts collected in respect of any
Cross-Collateralized Group (which shall not include the [Separately Serviced
Mortgage Loan] Loan Group), including in the form of payments from Borrowers,
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be
applied among the Mortgage Loans constituting such Cross-Collateralized Group in
accordance with the express provisions of the related Mortgage Loan Documents
and, in the absence of such express provisions or if such documents authorize
the lender to use its discretion, on a pro rata basis in accordance with the
respective amounts then "due and owing" as to each such Mortgage Loan. All
amounts collected in respect of or allocable to any particular Serviced Mortgage
Loan (such allocation to be made pursuant to the prior sentence if such Mortgage
Loan constitutes part of a Cross-Collateralized Group), including in the form of
payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds, shall be applied to amounts due and owing under such
Mortgage Loan (including for principal and accrued and unpaid interest) in
accordance with the express provisions of the related Mortgage Loan Documents
and, in the absence of such express provisions or if and to the extent that such
documents authorize the lender to use its discretion, as follows: first, as a
recovery of any related and unreimbursed Servicing Advances and, if applicable,
unpaid Liquidation Expenses; second, as a recovery of accrued and unpaid
interest on such Mortgage Loan to, but not including, the date of receipt (or,
in the case of a full Monthly Payment from any Borrower, through the related Due
Date), exclusive, however, of any portion of such accrued and unpaid interest
that constitutes Default Interest or, in the case of an ARD Mortgage Loan after
its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest;
third, as a recovery of principal of such Mortgage Loan then due and owing,
including by reason of acceleration of the Mortgage Loan following a default
thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage
Loan, as a recovery of principal to the extent of its entire remaining unpaid
principal balance); fourth, unless a Liquidation Event has occurred in respect
of such Mortgage Loan, as a recovery of amounts to be currently applied to the
payment of, or escrowed for the future payment of, real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items;
fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan,
as a recovery of Reserve Funds to the extent then required to be held in escrow;
sixth, as a recovery of any Default Charges then due and owing under such
Mortgage Loan; seventh, as a recovery of any Prepayment Premium then due and
owing under such Mortgage Loan; eighth, as a recovery of any assumption fees,
assumption application fees and modification fees then due
-69-
and owing under such Mortgage Loan; ninth, as a recovery of any other amounts
then due and owing under such Mortgage Loan other than remaining unpaid
principal and, in the case of an ARD Mortgage Loan after its Anticipated
Repayment Date, other than Post-ARD Additional Interest; tenth, as a recovery of
any remaining principal of such Mortgage Loan to the extent of its entire
remaining unpaid principal balance; and, eleventh, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and
unpaid Post-ARD Additional Interest on such ARD Mortgage Loan to, but not
including, the date of receipt.
(b) Collections in respect of any Administered REO
Property (exclusive of amounts to be applied to the payment of the costs of
operating, managing, maintaining and disposing of such REO Property) shall be
applied for purposes of this Agreement (including for purposes of determining
distributions on the Certificates pursuant to Article IV and additional
compensation payable to the Master Servicer, the Special Servicer and any
Sub-Servicers and also for reporting purposes) as follows: first, as a recovery
of any related and unreimbursed Servicing Advances and, if applicable, unpaid
Liquidation Expenses; second, as a recovery of accrued and unpaid interest on
the related REO Loan to, but not including, the Due Date in the Collection
Period of receipt (exclusive, however, of any portion of such accrued and unpaid
interest that constitutes Default Interest or, in the case of an REO Loan that
relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that
constitutes Post-ARD Additional Interest); third, as a recovery of principal of
the related REO Loan to the extent of its entire unpaid principal balance;
fourth, as a recovery of any Default Charges deemed to be due and owing in
respect of the related REO Loan; fifth, as a recovery of any Prepayment Premium
deemed to be due and owing in respect of the related REO Loan; sixth, as a
recovery of any other amounts deemed to be due and owing in respect of the
related REO Loan (other than, in the case of an REO Loan that relates to an ARD
Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD
Additional Interest); and seventh, in the case of an REO Loan that relates to an
ARD Mortgage Loan after its Anticipated Repayment Date, any accrued and unpaid
Post-ARD Additional Interest to, but not including, the date of receipt.
(c) Amounts received by the Master Servicer on behalf of
the Trust as remittances under a [Separately Serviced Mortgage Loan] Servicing
Agreement with respect to the [Separately Serviced Mortgage Loan] or the
[Separately Serviced Mortgage Loan] REO Loan shall be allocated, subject to the
[Separately Serviced Mortgage Loan] Intercreditor Agreements, among interest
(other than Additional Interest), principal, Prepayment Premiums, Additional
Interest and other amounts due thereon consistent with Section ______ of the
[Other CMBS Series PSA] or any comparable section of any other [Separately
Serviced Mortgage Loan] Servicing Agreement.
(d) For the purposes of this Agreement, Post-ARD
Additional Interest on an ARD Mortgage Loan or a successor REO Loan with respect
thereto shall be deemed not to constitute principal or any portion thereof and
shall not be added to the unpaid principal balance or Stated Principal Balance
of such ARD Mortgage Loan or successor REO Loan, notwithstanding that the terms
of the related Mortgage Loan Documents so permit. To the extent any Post-ARD
Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
(e) Insofar as amounts received in respect of any
Serviced Mortgage Loan or Administered REO Property and allocable to shared fees
and shared charges owing in respect of such Mortgage Loan or the related REO
Loan, as the case may be, that constitute Additional Master Servicing
Compensation payable to the Master Servicer and/or Additional Special Servicing
Compensation
-70-
payable to the Special Servicer, are insufficient to cover the full amount of
such fees and charges, such amounts shall be allocated between such of those
fees and charges as are payable to the Master Servicer, on the one hand, and
such of those fees and charges as are payable to the Special Servicer, on the
other, pro rata in accordance with their respective entitlements in accordance
with Section 3.11.
(f) The foregoing applications of amounts received in
respect of any Mortgage Loan or REO Property shall be determined by the Master
Servicer, in its reasonable judgment, and reflected in the appropriate monthly
report from the Master Servicer and in the appropriate monthly Statement to
Certificateholders as provided in Section 4.02.
SECTION 1.04. Application of Default Charges.
(a) Any and all Default Charges that are actually
received with respect to any Mortgage Loan or REO Loan (and, in the case of the
[Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan]
REO Loan, that are remitted to the Master Servicer on behalf of the Trust under
a [Separately Serviced Mortgage Loan]Servicing Agreement or, if Article XII is
in effect, are transferred from the [Separately Serviced Mortgage Loan]
Custodial Account to the Collection Account pursuant to Section 12.04(b)), shall
be applied for the following purposes and in the following order, in each case
to the extent of the remaining portion of such Default Charges:
first, to pay to any Fiscal Agent, the Trustee, the Master
Servicer or the Special Servicer, in that order, any Advance Interest
due and owing to such party on outstanding Advances made thereby with
respect to such Mortgage Loan or REO Loan, as the case may be;
second, to reimburse the Trust for any Advance Interest paid
to any Fiscal Agent, the Trustee, the Master Servicer or the Special
Servicer since the Closing Date with respect to such Mortgage Loan or
REO Loan, as the case may be, which interest was paid from a source
other than Default Charges collected on such Mortgage Loan or REO Loan,
as the case may be;
third, to pay any outstanding expense incurred by the Special
Servicer in connection with inspecting the related Mortgaged Property
or REO Property, as applicable, pursuant to Section 3.12;
fourth, to reimburse the Trust for any expenses reimbursed to
the Special Servicer since the Closing Date in connection with
inspecting the related Mortgaged Property or REO Property, as
applicable, pursuant to Section 3.12, which expenses were previously
paid from a source other than Default Charges collected on such
Mortgage Loan or REO Loan, as the case may be;
fifth, to pay the appropriate party for any other outstanding
expense (exclusive of Special Servicing Fees, Workout Fees and
Liquidation Fees) incurred thereby with respect to such Mortgage Loan
or REO Loan, as the case may be, which expense, if not paid out of
Default Charges collected on such Mortgage Loan or REO Loan, as the
case may be, will likely become an Additional Trust Fund Expense;
sixth, to reimburse the Trust for any other Additional Trust
Fund Expense (exclusive of Special Servicing Fees, Workout Fees and
Liquidation Fees) paid to the appropriate party since the Closing Date
with respect to such Mortgage Loan or REO Loan, as the case may be,
which
-71-
Additional Trust Fund Expense was paid from a source other than Default
Charges collected on such Mortgage Loan or REO Loan, as the case may
be; and
seventh, to pay any remaining portion of such Default Charges
as Additional Master Servicing Compensation to the Master Servicer, if
such Default Charges were collected when the loan was a Performing
Serviced Mortgage Loan or were collected with respect to the
[Separately Serviced Mortgage Loan] or any [Separately Serviced
Mortgage Loan] REO Loan, and otherwise to pay any remaining portion of
such Default Charges as Additional Special Servicing Compensation to
the Special Servicer.
(b) Default Charges applied to reimburse the Trust
pursuant to any of clause second, clause fourth or clause sixth of Section
1.04(a) are intended to be available for distribution on the Certificates
pursuant to Section 4.01(a) and Section 4.01(b), subject to application pursuant
to Section 3.05(a) or 3.05(b) for any items payable out of general collections
on the Mortgage Pool. Default Charges applied to reimburse the Trust pursuant to
any of clause second, clause fourth or clause sixth of Section 1.04(a) shall be
deemed to offset payments of Advance Interest, costs of property inspections or,
except for Special Servicing Fees, Workout Fees and Liquidation Fees, other
Additional Trust Fund Expenses (depending on which clause is applicable) in the
chronological order in which they were made or incurred with respect to the
subject Mortgage Loan or REO Loan (whereupon such Advance Interest, costs of
property inspections or, except for Special Servicing Fees, Workout Fees and
Liquidation Fees, other Additional Trust Fund Expenses (depending on which
clause is applicable) shall thereafter be deemed to have been paid out of
Default Charges).
SECTION 1.05. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Loan), the Mortgaged
Property (or REO Property) that relates or corresponds thereto shall be the
property identified in the Mortgage Loan Schedule as corresponding thereto. The
provisions of this Agreement, including each of the defined terms set forth in
Section 1.01, shall be interpreted in a manner consistent with this Section
1.05; provided that, if there exists with respect to any Cross-Collateralized
Group only one original of any document referred to in the definition of
"Mortgage File" covering all the Mortgage Loans in such Cross-Collateralized
Group, then the inclusion of the original of such document in the Mortgage File
for any of the Mortgage Loans constituting such Cross-Collateralized Group shall
be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan.
-72-
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR
INTERESTS, REMIC II REGULAR INTERESTS, GROUP X-2 REMIC III REGULAR
INTERESTS AND CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a
common law trust be established under the laws of the State of New York pursuant
to this Agreement and, further, that such trust be designated as "Citigroup
Commercial Mortgage Trust __________". ______ is hereby appointed, and does
hereby agree to act, as Trustee hereunder and, in such capacity, to hold the
Trust Fund in trust for the exclusive use and benefit of all present and future
Certificateholders. It is not intended that this Agreement create a partnership
or a joint-stock association.
(b) The Depositor, concurrently with the execution and
delivery hereof, does hereby sell, assign, transfer and otherwise convey to the
Trustee without recourse for the benefit of the Certificateholders, all the
right, title and interest of the Depositor in, to and under (i) the Mortgage
Loans, all payments under and proceeds of the Mortgage Loans received after the
Closing Date (other than scheduled payments of interest and principal due on or
before the Cut-off Date), all Principal Prepayments and corresponding interest
payments on the Mortgage Loans received after the Cut-off Date through and
including the Closing Date, and all documents included in the related Mortgage
Files and any related Additional Collateral; (ii) any REO Property acquired in
respect of any Mortgage Loan (or, in the case of any [Separately Serviced
Mortgage Loan] REO Property, the Trust's interest therein); (iii) such funds or
assets as from time to time are deposited in the Collection Account, the
Distribution Account, the Interest Reserve Account, the Excess Liquidation
Proceeds Account, the REO Account (if established), the [Separately Serviced
Mortgage Loan] Custodial Account (if established) and the [Other CMBS Series]
Companion Loan Custodial Account; (iv) each Mortgage Loan Purchase Agreement;
(v) the Loan REMIC Interests and the Loan REMIC Declarations; (vi) the Group
Terrorism Insurance Policy and (vii) all other assets included or to be included
in the Trust Fund. This conveyance is subject to: the terms and conditions of
the respective Mortgage Loan Documents (including the [Separately Serviced
Mortgage Loan] Intercreditor Agreements, in the case of the [Separately Serviced
Mortgage Loan], and the Loan REMIC Declarations, in the case of the [Separately
Serviced Mortgage Loan] and the Early Defeasance Mortgage Loans); and the right
of the Designated Sub-Servicers to primary service (or to perform select
servicing duties with respect to) certain of the Mortgage Loans pursuant to the
respective Designated Sub-Servicer Agreements.
Under GAAP, the Depositor shall report: (i) its acquisition of
the CGMRC Mortgage Loans from CGMRC, pursuant to the CGMRC Mortgage Loan
Purchase Agreement, as a purchase of such Mortgage Loans from CGMRC; (ii) its
acquisition of the [Seller No. 2] Mortgage Loans from [Seller No. 2], pursuant
to the [Seller No. 2] Mortgage Loan Purchase Agreement, as a purchase of such
Mortgage Loans from [Seller No. 2]; (iii) its acquisition of the [Seller No. 3]
Mortgage Loans from [Seller No. 3], pursuant to the [Seller No. 3] Mortgage Loan
Purchase Agreement, as a purchase of such [Seller No. 3] Mortgage Loans from
[Seller No. 3]; and (iv) its transfer of the Mortgage Loans to the Trustee,
pursuant to this Section 2.01(b), as a sale of the Mortgage Loans to the Trustee
on behalf of the Certificateholders. In connection with the foregoing, the
Depositor shall cause all of its records to
-73-
reflect such acquisitions as purchases and such transfer as a sale (in each
case, as opposed to a secured loan).
After the Depositor's transfer of the Mortgage Loans to the
Trustee pursuant to this Section 2.01(b), the Depositor shall not take any
action inconsistent with the Trust's ownership of the Mortgage Loans.
(c) The conveyance to the Trust of the Mortgage Loans
(and, in the case of the [Separately Serviced Mortgage Loan] and the Early
Defeasance Mortgage Loans, the related Loan REMIC Interests) and the related
rights and property accomplished hereby is absolute and is intended by the
parties hereto to constitute an absolute transfer of the Mortgage Loans (and, in
the case of the [Separately Serviced Mortgage Loan] and the Early Defeasance
Mortgage Loans, the related Loan REMIC Interests) and such other related rights
and property by the Depositor to the Trustee for the benefit of the
Certificateholders. Furthermore, it is not intended that such conveyance be a
pledge of security for a loan. If such conveyance is determined to be a pledge
of security for a loan, however, the parties hereto intend that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The parties hereto also intend and agree that, in such
event, (i) this Agreement shall constitute a security agreement under applicable
law, (ii) the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in all of the Depositor's right,
title and interest in and to the assets constituting the Trust Fund, including
the Mortgage Loans and the Loan REMIC Interests subject hereto from time to
time, all principal and interest received on or with respect to such Mortgage
Loans and Loan REMIC Interests after the Closing Date (other than scheduled
payments of interest and principal due and payable on the Mortgage Loans and the
Loan REMIC Interests on or prior to the Cut-off Date), all amounts held from
time to time in the Collection Account, the Distribution Account, the Interest
Reserve Account, the Excess Liquidation Proceeds Account, the REO Account (if
established), the [Separately Serviced Mortgage Loan] Custodial Account (if
established) and the [Other CMBS Series] Companion Loan Custodial Account, and
all reinvestment earnings on such amounts, and all of the Depositor's right,
title and interest under each Mortgage Loan Purchase Agreement, (iii) the
possession by the Trustee or its agent of the Mortgage Notes with respect to the
Mortgage Loans and the Loan REMIC Interests subject hereto from time to time and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by a purchaser or person designated by such secured party
for the purpose of perfecting such security interest under applicable law, and
(iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, securities intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor shall file or cause
to be filed, as a precautionary filing, a UCC Financing Statement substantially
in the form attached as Exhibit J hereto in all appropriate locations in the
State of Delaware promptly following the initial issuance of the Certificates,
and the Trustee shall prepare, execute (if necessary) and file at each such
office, continuation statements with respect thereto, in each case within six
months prior to the fifth anniversary of the immediately preceding filing. The
Depositor hereby authorizes the Trustee to prepare, execute (if necessary) and
file in the name of the Depositor, and shall cooperate in a reasonable manner
with the Trustee in preparing and filing, such continuation statements. This
Section 2.01(c) shall constitute notice to the Trustee pursuant to any
requirements of the UCC in effect in each applicable jurisdiction.
-74-
(d) In connection with the Depositor's assignment
pursuant to Section 2.01(b) above, the Depositor hereby represents and warrants
that it has contractually obligated each Mortgage Loan Seller, pursuant to the
related Mortgage Loan Purchase Agreement, to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee, on or before the
Closing Date, the Mortgage File and any Additional Collateral (other than
Reserve Funds and Escrow Payments) for each Mortgage Loan acquired by the
Depositor from such Mortgage Loan Seller. In addition, with respect to each
Mortgage Loan under which any Additional Collateral is in the form of a Letter
of Credit as of the Closing Date, the Depositor hereby represents and warrants
that it has contractually obligated the related Mortgage Loan Seller, subject to
the next paragraph, to cause to be prepared, executed and delivered to the
issuer of each such Letter of Credit such notices, assignments and
acknowledgments as are required under such Letter of Credit to assign, without
recourse, to the Trustee the related Mortgage Loan Seller's rights as the
beneficiary thereof and drawing party thereunder. The Depositor shall deliver to
the Trustee on or before the Closing Date a fully executed counterpart of each
Mortgage Loan Purchase Agreement.
Notwithstanding the foregoing, if any Mortgage Loan Seller is
unable to deliver any Letter of Credit constituting Additional Collateral for
any of its Mortgage Loans, then that Mortgage Loan Seller may, in lieu thereof,
deliver on behalf of the related Borrower, to be used for the same purposes as
such missing Letter of Credit either: (i) a substitute instrument substantially
comparable to, but in all cases in the same amount and with the same draw
conditions and renewal rights as, that Letter of Credit and issued by an obligor
that meets any criteria in the related Mortgage Loan Documents applicable to the
issuer of that Letter of Credit; or (ii) a cash reserve in an amount equal to
the amount of that Letter of Credit. For purposes of the delivery requirements
of this Section 2.01, any such substitute instrument shall be deemed to be
Additional Collateral of the type covered by the prior paragraph of this Section
2.01(d) and any such cash reserve shall be deemed to be Reserve Funds of the
type covered by Section 2.01(f).
(e) As soon as reasonably possible, and in any event
within 90 days after the later of (i) the Closing Date and (ii) the date on
which all recording information necessary to complete the subject document is
received by the Trustee, the Trustee is hereby authorized and shall complete (to
the extent necessary), and shall submit for recording or filing, as the case may
be, including via electronic means, if appropriate, in or with the appropriate
office for real property records or UCC Financing Statements, as applicable,
each assignment of Mortgage and assignment of Assignment of Leases in favor of
the Trustee referred to in clauses (a)(iv) and (a)(v) of the definition of
"Mortgage File" that has been received by the Trustee and each UCC Financing
Statement Amendment in favor of the Trustee referred to in clause (a)(viii) of
the definition of "Mortgage File" that has been received by the Trustee. Each
such assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording, and each such UCC Financing Statement
Amendment shall reflect that the file copy thereof or an appropriate receipt
therefor, as applicable, should be returned to the Trustee following filing;
provided that in those instances where the public recording office retains the
original assignment of Mortgage or assignment of Assignment of Leases the Master
Servicer shall, at the direction of the Trustee, obtain from such public
recording office and deliver to the Trustee a certified copy of the recorded
original. At such time as any such assignments, UCC Financing Statement
Amendments or verifications of electronic filing have been returned to the
Trustee, the Trustee shall, upon request, forward a copy thereof to the Master
Servicer. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Trustee shall
direct the related Mortgage Loan Seller to prepare or cause to be prepared
promptly, pursuant to the
-75-
related Mortgage Loan Purchase Agreement, a substitute therefor or to cure such
defect, as the case may be, and thereafter the Trustee shall, upon receipt
thereof, cause the same to be duly recorded or filed, as appropriate. If any
Mortgage Loan Seller has been so notified and has not prepared a substitute
document or cured such defect, as the case may be, within 60 days, the Trustee
shall promptly so notify the Master Servicer, the Special Servicer, the Rating
Agencies and the Controlling Class Representative. The Depositor and the Trustee
hereby acknowledge and agree that each Mortgage Loan Seller shall be responsible
for paying the reasonable fees and out-of-pocket expenses of the Trustee in
connection with the above-referenced recording and filing of documents insofar
as it relates to the Mortgage Loans acquired by the Depositor from such Mortgage
Loan Seller, as and to the extent provided for in the related Mortgage Loan
Purchase Agreement; provided that no Mortgage Loan Seller shall actually record
or file any such documents.
(f) In connection with the Depositor's assignment
pursuant to Section 2.01(b) above, the Depositor hereby represents and warrants
that it has contractually obligated each Mortgage Loan Seller, at such Mortgage
Loan Seller's expense, pursuant to the related Mortgage Loan Purchase Agreement,
to deliver to and deposit with, or cause to be delivered to and deposited with,
the Master Servicer, within 10 days following the Closing Date, each of the
following items that are in the possession or under the control of such Mortgage
Loan Seller and that relate to the Mortgage Loans transferred by it to the
Depositor (except to the extent that any of the following items are to be
retained by a primary servicer that will continue to act on behalf of the Master
Servicer as a Sub-Servicer): (i) originals or copies of all property-specific
financial statements, appraisals, environmental/engineering reports, transaction
screens, leases, rent rolls, third-party underwriting reports, insurance
policies, legal opinions, property management agreements, tenant estoppels,
subordination and non-disturbance agreements, and any other relevant documents
that the Master Servicer or Special Servicer reasonably deems necessary to
service the subject Mortgage Loan and specifies to such Mortgage Loan Seller in
writing and, to the extent they are not required to be a part of a Mortgage File
for any such Mortgage Loan, originals or copies of all documents, certificates
and opinions that were delivered by or on behalf of the related Borrowers in
connection with the origination of such Mortgage Loans (provided that such
Mortgage Loan Seller shall not be required to deliver any attorney-client
privileged communication or any documents or materials prepared by it or its
Affiliates solely for internal uses); and (ii) all unapplied Reserve Funds and
Escrow Payments. The Master Servicer shall hold all such documents, records and
funds that it so receives on behalf of the Trustee in trust for the benefit of
the Certificateholders.
(g) The Depositor shall be responsible for paying the
on-going surveillance fees of the Rating Agencies, which may be in the form of a
one time up-front payment.
SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) Subject to the other provisions in this Section 2.02,
the Trustee, by its execution and delivery of this Agreement, hereby accepts
receipt on behalf of the Trust, directly or through a Custodian on its behalf,
of (i) the Mortgage Loans and all documents delivered to it that constitute
portions of the related Mortgage Files, (ii) the Loan REMIC Interests and the
Loan REMIC Declarations and (iii) all other assets delivered to it and included
in the Trust Fund, in good faith and without notice of any adverse claim, and
declares that it or a Custodian on its behalf holds and will hold such documents
and any other documents received by it that constitute portions of the Mortgage
Files, and that it holds and will hold the Mortgage Loans, the Loan REMIC
Interests and such other assets, together with any other assets subsequently
delivered to it that are to be included in the Trust Fund, in
-76-
trust for the exclusive use and benefit of all present and future
Certificateholders. The Trustee shall hold any Letter of Credit in a custodial
capacity only and shall have no obligation to maintain, extend the term of,
enforce or otherwise pursue any rights under such Letter of Credit. In
connection with the foregoing, the Trustee hereby certifies to each of the
parties hereto and to the Mortgage Loan Sellers that, as to each Mortgage Loan,
except as specifically identified in the Schedule of Exceptions to Mortgage File
Delivery attached hereto as Exhibit B-2, (i) the Specially Designated Mortgage
Loan Documents (without regard to Assignments of Leases, modification agreements
and assumption agreements) are in its possession or the possession of a
Custodian on its behalf and (ii) such Mortgage Loan Documents have been reviewed
by it or such Custodian and each (A) appears regular on its face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the related Borrower and lender), (B) appears to have been executed
and (C) purports to relate to such Mortgage Loan.
(b) On or about the 60th day following the Closing Date
(and, if any exceptions are noted or if the recordation/filing contemplated by
Section 2.01(e) has not been completed (based solely on receipt by the Trustee
or a Custodian on its behalf of the particular documents showing evidence of the
recordation/filing), every 90 days thereafter until the earlier of (i) the date
on which such exceptions are eliminated and such recordation/filing has been
completed and (ii) the date on which all the affected Mortgage Loans are removed
from the Trust Fund), the Trustee or a Custodian on its behalf shall review the
documents delivered to it with respect to each Mortgage Loan, and the Trustee
shall, subject to Sections 1.05, 2.02(c) and 2.02(d), certify in writing
(substantially in the form of Exhibit B-3) to each of the other parties hereto,
the Mortgage Loan Sellers and the Controlling Class Representative that, as to
each Mortgage Loan then subject to this Agreement (except as specifically
identified in any exception report annexed to such certification, which
exception report, if and to the extent applicable and delivered to any Mortgage
Loan Seller shall constitute notice to such Mortgage Loan Seller of any Document
Defects identified thereon): (i) if such Mortgage Loan is a Serviced Mortgage
Loan, the original Mortgage Note specified in clause (a)(i) of the definition of
"Mortgage File" and all allonges thereto, if any (or a copy of such Mortgage
Note, together with a "lost note affidavit and indemnity" certifying that the
original of such Mortgage Note has been lost), the original or a copy of each
document specified in clauses (a)(ii), (a)(iv), and (a)(vii) of the definition
of "Mortgage File", originals or copies of any documents specified in clauses
(a)(iii), (a)(v), (a)(ix), (a)(x), (a)(xi), (a)(xii), (a)(xiii) and (a)(xiv) of
the definition of "Mortgage File" (to the extent that the Trustee has actual
knowledge that such documents exist) and any other Specially Designated Mortgage
Loan Documents (without regard to modification agreements and assumption
agreements), have been received by the Trustee or a Custodian on its behalf;
(ii) if such Mortgage Loan is the [Separately Serviced Mortgage Loan], the
original Mortgage Note specified in clause (b)(i) of the definition of "Mortgage
File" and all allonges thereto, if any (or a copy of such Mortgage Note,
together with a "lost note affidavit and indemnity" certifying that the original
of such Mortgage Note has been lost), and the original or a copy of each
document specified in clauses (b)(ii), (b)(iii) and (b)(iv) of the definition of
"Mortgage File", have been received by the Trustee or a Custodian on its behalf;
(iii) if such report is more than 180 days after the Closing Date, the
recordation/filing contemplated by Section 2.01(e) (except in the case of the
[Separately Serviced Mortgage Loan]) has been completed (based solely on receipt
by the Trustee or a Custodian on its behalf of the particular recorded/filed
documents or an appropriate receipt of recording/filing therefor); (iv) all
documents received by it with respect to such Mortgage Loan have been reviewed
by the Trustee or a Custodian on its behalf and (A) appear regular on their face
(handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the related Borrower and lender), (B) appear to
have been executed and (C) purport to relate to such Mortgage Loan; and (v)
based on the
-77-
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 (iii)(A) and
(vi)(B) of the definition of "Mortgage Loan Schedule" accurately reflects the
information set forth in the Mortgage File. The Trustee shall deliver
electronically or via its website to the Controlling Class Representative and,
upon request, to any other party to this Agreement, the Rating Agencies or the
Certificateholders current exception reports for as long as there are exceptions
outstanding.
(c) None of the Trustee, the Master Servicer, the Special
Servicer or any Custodian is under any duty or obligation to inspect, review or
examine any of the documents, instruments, certificates or other papers relating
to the Mortgage Loans delivered to it to determine that the same are valid,
legal, effective, genuine, binding, enforceable, sufficient or appropriate for
the represented purpose or that they are other than what they purport to be on
their face. Furthermore, except as expressly provided in Section 2.01(e), none
of the Trustee, the Master 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) In performing the reviews contemplated by subsections
(a) and (b) above, the Trustee or any Custodian on its behalf may conclusively
rely on the related Mortgage Loan Seller as to the purported genuineness of any
such document and any signature thereon. It is understood that the scope of the
Trustee's or such Custodian's review of the Mortgage Files is limited solely to
confirming that the documents specified in clauses (a)(i), (a)(ii), (a)(iii) (to
the extent that the Trustee has actual knowledge that such documents exist),
(a)(iv), (a)(v) (to the extent that the Trustee has actual knowledge that such
documents exist), (a)(vi) (to the extent that the Trustee has actual knowledge
that such documents exist), (a)(vii), (a)(ix) through (a)(xiii) (to the extent
that the Trustee has actual knowledge that such documents exist), (a)(xiv),
(b)(i), (b)(ii), (b)(iii) and (b)(iv) of the definition of "Mortgage File" and
any other Specially Designated Mortgage Loan Documents (without regard to
modification agreements and assumption agreements) have been received and such
additional information as will be necessary for making and/or delivering the
certifications required by subsections (a) and (b) above.
With respect to any of the documents described in clauses
(a)(iii), (a)(v), (a)(vi), (a)(ix), (a)(x), (a)(xi), (a)(xii) and (a)(xiii) of
the definition of "Mortgage File", the Trustee shall be deemed to have knowledge
of the existence of the subject document in respect of any Serviced Mortgage
Loan if the subject document is listed on any closing binder index that may be
delivered to the Trustee as part of, or in connection with the delivery of, the
Mortgage File for such Serviced Mortgage Loan.
With respect to the documents described in clause (viii) of
the definition of "Mortgage File", absent actual knowledge to the contrary or
copies of UCC Financing Statements delivered to the Trustee as part of the
Mortgage File indicating otherwise, the Trustee may assume, for purposes of the
certification(s) to be made or otherwise delivered pursuant to this Section
2.02, that the Mortgage File for each Mortgage Loan should include one
state-level UCC Financing Statement filed in the state of incorporation or
organization of the related Borrower for each Mortgaged Property (or with
respect to any Mortgage Loan that has two or more Borrowers, for each related
Borrower). To the extent appropriate under applicable law, the UCCs to be
assigned to the Trust will be delivered on the new national forms and in
recordable form and will be filed in the state of incorporation or organization
as so
-78-
indicated on the documents provided. To the extent the Trustee has actual
knowledge or is notified of any fixture or real property UCC Financing
Statements, the Trustee shall file an assignment to the Trust with respect to
such UCC Financing Statements in the appropriate jurisdiction under the UCC at
the expense of the related Mortgage Loan Seller (to the extent provided in the
related Mortgage Loan Purchase Agreement).
SECTION 2.03. Certain Repurchases of Mortgage Loans by the
Mortgage Loan Sellers.
(a) If any party hereto discovers, or receives notice
from a non-party, that a Document Defect or Breach exists with respect to any
Mortgage Loan, then such party shall give prompt written notice thereof to the
other parties hereto, including (unless it is the party that discovered the
Document Defect or Breach) the Trustee. Upon the Trustee's discovery or receipt
of notice that a Document Defect or Breach exists with respect to any Mortgage
Loan, the Trustee shall notify the Master Servicer, the Special Servicer, the
Controlling Class Representative, the Rating Agencies and the related Mortgage
Loan Seller.
(b) Promptly upon its becoming aware of any Material
Document Defect or Material Breach with respect to any Mortgage Loan or its
receipt of notice from the Trustee or any other party to this Agreement of a
Material Document Defect or Material Breach with respect to any Mortgage Loan,
the Master Servicer shall (and the Special Servicer may) notify the related
Mortgage Loan Seller with respect thereto in writing of such Material Document
Defect or Material Breach, as the case may be, and direct such Mortgage Loan
Seller that it must, not later than 90 days from the receipt by such Mortgage
Loan Seller of such notice (or, if such Material Breach or Material Document
Defect, as the case may be, relates to whether such Mortgage Loan is or, as of
the Closing Date, was a Qualified Mortgage, and provided that such Mortgage Loan
Seller received prompt written notice thereof, within 90 days after any earlier
discovery by any party to this Agreement of such Material Breach or Material
Document Defect, as the case may be) (such 90-day period, in any case, the
"Initial Resolution Period"), correct or cure such Material Document Defect or
Material Breach, as the case may be, in all material respects, or repurchase the
affected Mortgage Loan (as, if and to the extent required by the related
Mortgage Loan Purchase Agreement), at the applicable Purchase Price; provided
that if such Mortgage Loan Seller certifies to the Trustee in writing (i) that
such Material Document Defect or Material Breach, as the case may be, does not
relate to whether the affected Mortgage Loan is or, as of the Closing Date, was
a Qualified Mortgage, (ii) that such Material Document Defect or Material
Breach, as the case may be, is capable of being cured but not within the
applicable Initial Resolution Period, (iii) that such Mortgage Loan Seller has
commenced and is diligently proceeding with the cure of such Material Document
Defect or Material Breach, as the case may be, during the applicable Initial
Resolution Period, (iv) what actions such Mortgage Loan Seller is pursuing in
connection with the cure of such Material Document Defect or Material Breach, as
the case may be, and (v) that such Mortgage Loan Seller anticipates that such
Material Document Defect or Material Breach, as the case may be, will be cured
within an additional 90-day period (such additional 90-day period, the
"Resolution Extension Period") (a copy of which certification shall be delivered
by the Trustee to the Master Servicer, the Special Servicer and the Controlling
Class Representative), then such Mortgage Loan Seller shall have an additional
period equal to such Resolution Extension Period to complete such correction or
cure (or, upon failure to complete such correction or cure, to repurchase the
affected Mortgage Loan); and provided, further, that the delivery of the
foregoing certification in connection with, and/or any attempt by a Mortgage
Loan Seller to cure, any alleged Breach or Document Defect shall not be deemed
an admission on the part of such
-79-
Mortgage Loan Seller that such alleged Breach or Document Defect is, in fact, a
Breach or Document Defect, as the case may be, or more particularly, that it is
a Material Breach or Material Document Defect, as the case may be.
The remedies provided for in this Section 2.03(b) with respect
to any Material Document Defect or Material Breach with respect to any Mortgage
Loan shall apply to the related REO Property.
If one or more (but not all) of the Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by a Mortgage
Loan Seller, as contemplated by this Section 2.03, then, prior to the subject
repurchase, the Master Servicer shall use its reasonable efforts, subject to the
terms of the affected Mortgage Loans, to prepare and, to the extent necessary
and appropriate, have executed by the related Borrower and record, such
documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased, on the one hand, and the remaining Mortgage Loans therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that no such termination shall be effected
unless the Mortgage Loans from such Cross-Collateralized Group that are to
remain part of the Trust Fund have a loan-to-value ratio of no more than 75% and
a debt service coverage ratio of no less than 1.25x; and provided, further, that
no such termination shall be effected unless and until the Master Servicer and
the Trustee have received from the related Mortgage Loan Seller (i) an Opinion
of Counsel addressed to the Trustee, the Master Servicer and the Rating Agencies
from Independent counsel to the effect that such termination will not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool and (ii) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Rated Certificates;
and provided, further, that the related Mortgage Loan Seller may, at its option,
repurchase the entire Cross-Collateralized Group without termination of the
cross-collateralization. To the extent necessary and appropriate, the Trustee
shall execute (or, subject to Section 3.10, provide the Master Servicer with a
limited power of attorney that enables the Master Servicer to execute) the loan
documentation referred to in the prior sentence; provided that the Trustee shall
not be liable for any misuse of any such power of attorney by the Master
Servicer. The Master Servicer shall advance all costs and expenses incurred by
the Trustee and the Master Servicer with respect to any Cross-Collateralized
Group pursuant to this paragraph, and such advances shall (i) constitute and be
reimbursable as Servicing Advances and (ii) be included in the calculation of
Purchase Price for the Mortgage Loan(s) to be repurchased. Neither the Master
Servicer nor the Special Servicer shall be liable to any Certificateholder or
any other party hereto if the cross-collateralization of any
Cross-Collateralized Group is not or cannot be terminated as contemplated by
this paragraph for any reason beyond the control of the Master Servicer or the
Special Servicer, as the case may be.
If the cross-collateralization of any Cross-Collateralized
Group of Mortgage Loans is not or cannot be terminated as contemplated by the
preceding paragraph for any reason (including the failure of the related
Mortgage Loan Seller to satisfy any of the conditions set forth in the provisos
to the first sentence of the preceding paragraph), then, for purposes of this
Section 2.03 and the related Mortgage Loan Purchase Agreement, including for
purposes of (i) determining whether the particular Breach or Document Defect
that gave rise to the repurchase obligation for such Cross-Collateralized Group
is a Material Breach or Material Document Defect, as the case may be, and (ii)
the application of remedies, such Cross-Collateralized Group shall be treated as
a single Mortgage Loan.
-80-
In the event that the Master Servicer, the Special Servicer or
the Trustee is notified or otherwise has actual knowledge that [the applicable
Mortgage Loan Seller] has an obligation to repurchase the [Separately Serviced
Mortgage Loan] Pari Passu Companion Loan from the [Other CMBS Series] Trust by
reason of a "Material Document Defect" or a "Material Breach" (as such terms are
defined in the [Other CMBS Series PSA]), then such party shall promptly notify
the other such parties, and the Master Servicer shall, as and to the extent
contemplated by the [applicable] Mortgage Loan Purchase Agreement, direct [the
applicable Mortgage Loan Seller] to repurchase the [Separately Serviced Mortgage
Loan] at the Purchase Price contemporaneously with any repurchase of the
[Separately Serviced Mortgage Loan] Pari Passu Companion Loan.
In the event that the Master Servicer receives notice from the
Borrower under any Early Defeasance Mortgage Loan that such Borrower intends to,
and the related Mortgage Loan Documents permit such Borrower to, defease such
Mortgage Loan on or before the second anniversary of the Startup Day of the
related Loan REMIC, then the Master Servicer shall promptly (and, in any event,
within five Business Days of receiving such notice from such Borrower) notify
CGMRC of such Borrower's intention, and the Master Servicer shall direct CGMRC
to repurchase such Mortgage Loan at the Purchase Price within the time frame
contemplated by the CGMRC Mortgage Loan Purchase Agreement.
In connection with any repurchase of the [Separately Serviced
Mortgage Loan] or any of the Early Defeasance Mortgage Loans pursuant to or as
contemplated by this Section 2.03(b), the Trustee shall effect a "qualified
liquidation" of the related Loan REMIC in accordance with the REMIC Provisions.
The reasonable "out-of-pocket" costs and expenses incurred by
the Master Servicer, the Special Servicer and/or the Trustee pursuant to this
Section 2.03(b), including reasonable attorney fees and expenses, shall
constitute Servicing Advances to the extent not collected from the related
Mortgage Loan Seller.
(c) If any Mortgage Loan is to be repurchased as
contemplated by this Section 2.03, the Master Servicer shall designate the
Collection Account as the account to which funds in the amount of the applicable
Purchase Price are to be wired, and the Master Servicer shall promptly notify
the Trustee, by delivery of an Officer's Certificate, when such deposit is made.
Any such repurchase of a Mortgage Loan shall be on a whole loan, servicing
released basis. Upon its receipt of an Officer's Certificate from the Master
Servicer to the effect that the full amount of the Purchase Price for any
Mortgage Loan repurchased by or on behalf of a Mortgage Loan Seller as
contemplated by this Section 2.03 has been deposited in the Collection Account,
the Trustee shall release or cause the release of the Mortgage File and any
Additional Collateral held by or on behalf of the Trustee for the Deleted
Mortgage Loan to the party effecting the repurchase or its designee, and the
Trustee or the Master Servicer on behalf of the Trustee shall execute and
deliver such instruments of release, transfer and/or assignment, in each case
without recourse, as shall be provided to it and are reasonably necessary to
vest in the party effecting the repurchase or its designee the ownership of the
Deleted Mortgage Loan, and the Master Servicer shall notify the applicable
Borrower(s) of the transfers of the Deleted Mortgage Loan(s). In connection with
any such repurchase by or on behalf of a Mortgage Loan Seller, each of the
Master Servicer and the Special Servicer shall deliver to the party effecting
the repurchase or its designee any portion of the related Servicing File,
together with any Escrow Payments, Reserve Funds and Additional Collateral, held
by or on behalf of the Master Servicer or the Special Servicer, as the case
-81-
may be, with respect to the Deleted Mortgage Loan, in each case at the expense
of the party effecting the repurchase.
If any Mortgage Loan is to be repurchased as contemplated by
this Section 2.03, the Master Servicer shall direct the related Mortgage Loan
Seller to amend the Mortgage Loan Schedule to reflect the removal of the Deleted
Mortgage Loan and deliver the same to the Trustee. Upon the Trustee's receipt of
such amended Mortgage Loan Schedule, the Trustee shall deliver or cause the
delivery of such amended Mortgage Loan Schedule to the respective parties hereto
and to the Controlling Class Representative.
(d) Except as contemplated by the next two sentences, the
Mortgage Loan Purchase Agreements provide the sole remedies available to the
Certificateholders, or the Trustee on their behalf, respecting any Breach or
Document Defect. If, in connection with any Material Document Defect or Material
Breach in respect of any Mortgage Loan, the related Mortgage Loan Seller
defaults on its obligations to cure such Material Document Defect or Material
Breach, as the case may be, in all material respects or to repurchase the
affected Mortgage Loan as contemplated by this Section 2.03, or if, in
connection with any repurchase of the [Separately Serviced Mortgage Loan] Pari
Passu Companion Loan from the [Other CMBS Series] Trust, [the applicable
Mortgage Loan Seller] defaults on its obligation to repurchase the [Separately
Serviced Mortgage Loan]or if, in connection with any defeasance of an Early
Defeasance Mortgage Loan prior to the second anniversary of the Startup Day of
the related Loan REMIC, CGMRC defaults on its obligations to repurchase the
affected Mortgage Loan as contemplated by this Section 2.03, then with respect
to the [Separately Serviced Mortgage Loan] and any Performing Serviced Mortgage
Loans (except for Early Defeasance Mortgage Loans) the Master Servicer shall
(and the Special Servicer may), and with respect to Specially Serviced Mortgage
Loans and Early Defeasance Mortgage Loans the Special Servicer shall, promptly
notify the Trustee and the Controlling Class Representative, and the Trustee
shall notify the Certificateholders. Thereafter, with respect to the [Separately
Serviced Mortgage Loan] and any Performing Serviced Mortgage Loans (except for
Early Defeasance Mortgage Loans) the Master Servicer shall (and the Special
Servicer may), and with respect to Specially Serviced Mortgage Loans and Early
Defeasance Mortgage Loans the Special Servicer shall, take such actions on
behalf of the Trust with respect to the enforcement of such repurchase
obligations (and if the Master Servicer (or the Special Servicer) is notified or
otherwise becomes aware of a default on the part of any Mortgage Loan Seller in
respect of its obligations under the second paragraph of Section 2(c) of the
related Mortgage Loan Purchase Agreement, then with respect to the [Separately
Serviced Mortgage Loan] and any Performing Serviced Mortgage Loans (except for
Early Defeasance Mortgage Loans) the Master Servicer shall (and the Special
Servicer may), and with respect to Specially Serviced Mortgage Loans and Early
Defeasance Mortgage Loans the Special Servicer shall, also take such actions on
behalf of the Trust with respect to the enforcement of such obligations of such
Mortgage Loan Seller), including the institution and prosecution of appropriate
legal proceedings, as the Master Servicer or the Special Servicer, as
applicable, shall determine are in the best interests of the Certificateholders
(taken as a collective whole). Any and all reasonable "out-of-pocket" costs and
expenses incurred by the Master Servicer, the Special Servicer and/or the
Trustee pursuant to this Section 2.03(d), including, reasonable attorney's fees
and expenses, to the extent not collected from the related Mortgage Loan
Seller), shall constitute Servicing Advances in respect of the affected Mortgage
Loan.
-82-
SECTION 2.04. Representations and Warranties of the
Depositor.
(a) The Depositor hereby represents and warrants to each
of the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Depositor is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and the Depositor's principal place of business and
its chief executive office is located in the State of New York.
(ii) The Depositor's execution and delivery of,
performance under, and compliance with this Agreement, will not violate
the Depositor's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other material instrument to which it is a party or by which it is
bound, which default or breach, in the reasonable judgment of the
Depositor, is likely to affect materially and adversely either the
ability of the Depositor to perform its obligations under this
Agreement or the financial condition of the Depositor.
(iii) The Depositor has the full power and
authority to own its properties, to conduct its business as presently
conducted by it and to enter into and consummate all transactions
involving the Depositor contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto, constitutes
a valid, legal and binding obligation of the Depositor, enforceable
against the Depositor in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Depositor is not in violation of, and
its execution and delivery of, performance under and compliance with
this Agreement will not constitute a violation of, any law, any order
or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority,
which violation, in the Depositor's reasonable judgment, is likely to
affect materially and adversely either the ability of the Depositor to
perform its obligations under this Agreement or the financial condition
of the Depositor.
(vi) No consent, approval, authorization or order
of any state or federal court or governmental agency or body is
required for the consummation by the Depositor of the transactions
contemplated herein, except (A) for those consents, approvals,
authorizations or orders that previously have been obtained, (B) such
as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and sale of the Certificates by the
Underwriters, and (C) any recordation of the assignments of Mortgage
Loan Documents to the Trustee pursuant to Section 2.01(e), which has
not yet been completed.
(vii) The Depositor's transfer of the Mortgage
Loans to the Trustee as contemplated herein requires no regulatory
approval, other than any such approvals as have been
-83-
obtained, and is not subject to any bulk transfer or similar law in
effect in any applicable jurisdiction.
(viii) The Depositor is not transferring the
Mortgage Loans to the Trustee with any intent to hinder, delay or
defraud its present or future creditors. In connection with its
transfer of the Mortgage Loans hereunder, the Depositor will receive
new value and consideration constituting at least reasonably equivalent
value and fair consideration for the assets transferred.
(ix) The Depositor has been solvent at all
relevant times prior to, and will not be rendered insolvent by, its
transfer of the Mortgage Loans to the Trustee pursuant to Section
2.01(b).
(x) After giving effect to its transfer of the
Mortgage Loans to the Trustee pursuant to Section 2.01(b), the value of
the Depositor's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of the Depositor's
debts and obligations, including contingent and unliquidated debts and
obligations of the Depositor, and the Depositor will not be left with
unreasonably small assets or capital with which to engage in and
conduct its business, and such transfer will not render the Depositor
insolvent.
(xi) The Depositor does not intend to, and does
not believe that it will, incur debts or obligations beyond its ability
to pay such debts and obligations as they mature.
(xii) No proceedings looking toward merger,
liquidation, dissolution or bankruptcy of the Depositor are pending or
contemplated.
(xiii) No litigation is pending or, to the best of
the Depositor's knowledge, threatened against the Depositor that, if
determined adversely to the Depositor, would prohibit the Depositor
from entering into this Agreement or that, in the Depositor's
reasonable judgment, is likely to materially and adversely affect
either the ability of the Depositor to perform its obligations under
this Agreement or the financial condition of the Depositor. The
execution, delivery and performance of this Agreement by the Depositor
constitutes bona fide and arm's-length transactions and are undertaken
in the ordinary course of business of the Depositor.
(xiv) Assuming the accuracy of the representations
and warranties of the Mortgage Loan Sellers set forth in their
respective Mortgage Loan Purchase Agreements, immediately prior to the
transfer of the Mortgage Loans to the Trustee for the benefit of the
Certificateholders pursuant to this Agreement, the Depositor had good
title to, and was the sole owner and holder of, each Mortgage Loan, and
the Depositor has full right and authority to sell, assign and transfer
the Mortgage Loans.
(xv) The Depositor is transferring all of its
right, title and interest in and to the Mortgage Loans to the Trustee
for the benefit of the Certificateholders free and clear of any and all
liens, pledges, charges and security interests created by or through
the Depositor.
(xvi) Except for any actions that are the express
responsibility of another party hereunder or under a Mortgage Loan
Purchase Agreement, and further except for actions that the Depositor
is expressly permitted to complete subsequent to the Closing Date, the
Depositor has
-84-
taken all actions required under applicable law to effectuate the
transfer of all of its right, title and interest in and to the Mortgage
Loans by the Depositor to the Trustee.
(b) The representations and warranties of the Depositor
set forth in Section 2.04(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of any breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto and the Controlling Class Representative.
SECTION 2.05. Representations and Warranties of the Master
Servicer.
(a) The Master Servicer hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Master Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of __________, 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 ensure the enforceability of each Mortgage Loan and
to perform its obligations under this Agreement.
(ii) The Master Servicer's execution and delivery
of, performance under and compliance with this Agreement 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, which default or
breach, in the reasonable judgment of the Master Servicer, 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.
(iii) The Master Servicer has the full power and
authority to enter into and consummate all transactions involving the
Master Servicer contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto, constitutes
a valid, legal and binding obligation of the Master Servicer,
enforceable against the Master Servicer in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Master Servicer is not in violation of,
and its execution and delivery of, performance under and compliance
with this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the reasonable judgment of the Master
Servicer, is likely to affect materially and adversely either the
ability of
-85-
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 reasonable
judgement, would prohibit the Master Servicer from entering into this
Agreement or that, in the Master Servicer's reasonable judgment, could
reasonably be expected to materially and adversely affect either the
ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vii) The Master Servicer has errors and omissions
insurance in the amounts and with the coverage required by Section
3.07(d).
(viii) No consent, approval, authorization or order
of any state or federal court or governmental agency or body is
required for the consummation by the Master Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations or orders that previously have been obtained and except
where the lack of such consent, approval, authorization or order would
not have a material adverse effect on the ability of the Master
Servicer to perform its obligations under this Agreement.
(ix) The Master Servicer has examined each of the
Sub-Servicing Agreements entered into by the Master Servicer that will
be in effect as of the Closing Date with respect to the Serviced
Mortgage Loans, and each such Sub-Servicing Agreement complies with the
requirements of Section 3.22(a) in all material respects.
(b) The representations and warranties of the Master
Servicer set forth in Section 2.05(a) shall survive the execution and delivery
of this Agreement and shall inure to the benefit of the Persons for whose
benefit they were made for so long as the Trust remains in existence. Upon
discovery by any party hereto of a breach of any of such representations and
warranties that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice thereof to the other parties hereto and the
Controlling Class Representative.
(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 2.05(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.05(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.06. Representations and Warranties of the
Special Servicer.
(a) The Special Servicer hereby represents and warrants
to each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Special Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of __________, and the Special Servicer is in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent
-86-
necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations under this Agreement.
(ii) The Special Servicer's execution and
delivery of, performance under and compliance with this Agreement 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 instrument to which it is a party or
which is applicable to it or any of its assets, which default or
breach, in the reasonable judgment of the Special Servicer, 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.
(iii) The Special Servicer has the full power and
authority to enter into and consummate all transactions involving the
Special Servicer contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto, constitutes
a valid, legal and binding obligation of the Special Servicer
enforceable against the Special Servicer in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Special Servicer is not in violation of,
and its execution and delivery of, performance under and compliance
with the terms of this Agreement will not constitute a violation of,
any law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the reasonable judgment of
the Special Servicer, 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 reasonable
judgment, would prohibit the Special Servicer from entering into this
Agreement or, in the Special Servicer's reasonable judgment, could
reasonably be expected to materially and adversely affect either the
ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vii) The Special Servicer has errors and
omissions insurance in the amounts and with the coverage required by
Section 3.07(d).
(viii) No consent, approval, authorization or order
of any state or federal court or governmental agency or body is
required for the consummation by the Special Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations or orders that previously have been obtained and except
where the lack of such consent, approval, authorization or order would
not have a material adverse effect on the ability of the Special
Servicer to perform its obligations under this Agreement.
-87-
(ix) As of the Closing Date, the Special Servicer
is not a party to any Sub-Servicing Agreement providing for the
performance of duties of the Special Servicer by any Sub-Servicers with
respect to any of the Serviced Mortgage Loans or Administered REO
Properties.
(b) The representations and warranties of the Special
Servicer set forth in Section 2.06(a) shall survive the execution and delivery
of this Agreement and shall inure to the benefit of the Persons for whose
benefit they were made for so long as the Trust remains in existence. Upon
discovery by any party hereto of a breach of any of such representations and
warranties that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice to each of the other parties hereto and the
Controlling Class Representative.
(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 2.06(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.06(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.07. Representations and Warranties of the
Trustee.
(a) The Trustee hereby represents and warrants to, and
covenants with, each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is duly organized and validly
existing as a national banking association under the laws of the United
States and is, shall be or, if necessary, shall appoint a co-trustee
that is, in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan (insofar as such enforceability is
dependent upon compliance by the Trustee with such laws) and to perform
its obligations under this Agreement.
(ii) The Trustee's execution and delivery of,
performance under and compliance with this Agreement will not violate
the Trustee's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in a breach of, any material agreement or
other material instrument to which it is a party or by which it is
bound, which default or breach, in the reasonable judgment of the
Trustee is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee.
(iii) The Trustee has the full power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto, constitutes
a valid, legal and binding obligation of the Trustee, enforceable
against the Trustee in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors'
rights generally and the rights of creditors of national banking
-88-
associations, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Trustee is not in violation of, and its
execution and delivery of, performance under and compliance with this
Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of
any federal, state or local governmental or regulatory authority, which
violation, in the reasonable judgment of the Trustee, is likely to
affect materially and adversely either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition
of the Trustee.
(vi) No consent, approval, authorization or order
of any state or federal court or governmental agency or body is
required for the consummation by the Trustee of the transactions
contemplated herein, except for those consents, approvals,
authorizations or orders that previously have been obtained.
(vii) No litigation is pending or, to the best of
the Trustee's knowledge, threatened against the Trustee that, if
determined adversely to the Trustee, would prohibit the Trustee from
entering into this Agreement or that, in the Trustee's reasonable
judgment, is likely to materially and adversely affect either the
ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee.
(viii) The Trustee is eligible to act as trustee
hereunder in accordance with Section 8.06 and has errors and omissions
insurance in such amount and with such coverage as is consistent with
any criteria published by [S&P] as of the Closing Date (or, if
permitted by such criteria, is self-insured).
(b) The representations, warranties and covenants of the
Trustee set forth in Section 2.07(a) shall survive the execution and delivery of
this Agreement and shall inure to the benefit of the Persons for whose benefit
they were made for so long as the Trust remains in existence. Upon discovery by
any party hereto of a breach of any such representations, warranties and
covenants that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice thereof to the other parties hereto and the
Controlling Class Representative.
(c) Any successor Trustee shall be deemed to have made,
as of the date of its succession, each of the representations, warranties and
covenants set forth in Section 2.07(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.07(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.08. Creation of REMIC I; Issuance of the REMIC I
Regular Interests and the REMIC I Residual
Interest; Certain Matters Involving REMIC I
and the Loan REMICs.
(a) It is the intention of the parties hereto that the
following segregated pool of assets constitute a REMIC for federal income tax
purposes and, further, that such segregated pool of assets be designated as
"REMIC I": (i) the Mortgage Loans that are from time to time subject to this
Agreement (other than the [Separately Serviced Mortgage Loan] and the Early
Defeasance Mortgage Loans),
-89-
together with (A) all payments under and proceeds of the Mortgage Loans (other
than the [Separately Serviced Mortgage Loan] and the Early Defeasance Mortgage
Loans) received after the Closing Date (exclusive of any portion of such
payments and/or proceeds that represents scheduled payments of interest and
principal due on or before the Cut-off Date, Post-ARD Additional Interest
collected in respect of the ARD Mortgage Loans after their respective
Anticipated Repayment Dates and/or Excess Servicing Fees), (B) all Principal
Prepayments and corresponding interest payments on the Mortgage Loans (other
than the [Separately Serviced Mortgage Loan] and the Early Defeasance Mortgage
Loans) received after the Cut-off Date through and including the Closing Date,
and (C) all documents included in the related Mortgage Files and Servicing Files
and any related Additional Collateral; (ii) any REO Property acquired in respect
of a Mortgage Loan that is not the [Separately Serviced Mortgage Loan] or an
Early Defeasance Mortgage Loan; (iii) the Loan REMIC Regular Interests and all
payments under and proceeds of such Loan REMIC Regular Interests received after
the Closing Date; (iv) such funds and assets as from time to time are deposited
in the Collection Account, the Distribution Account, the Interest Reserve
Account, the Excess Liquidation Proceeds Account and the REO Account (if
established) (exclusive of any amounts that constitute Post-ARD Additional
Interest collected in respect of the ARD Mortgage Loans after their respective
Anticipated Repayment Dates and exclusive of Excess Servicing Fees); and (v) the
rights of the Depositor under each Mortgage Loan Purchase Agreement. The Closing
Date is hereby designated as the "Startup Day" of REMIC I, within the meaning of
Section 860G(a)(9) of the Code.
A Loan REMIC Declaration has been made with respect to the
[Separately Serviced Mortgage Loan] and each of the Early Defeasance Mortgage
Loans. In the case of the [Separately Serviced Mortgage Loan] and each Early
Defeasance Mortgage Loan, the related Loan REMIC will include such Mortgage Loan
and any REO Property acquired in respect of such Mortgage Loan (or, in the case
of the [Separately Serviced Mortgage Loan], the Trust's interest in any
[Separately Serviced Mortgage Loan] REO Property); provided that, if applicable,
such Loan REMIC shall exclude any collections of Post-ARD Additional Interest.
The "Startup Day" for each Loan REMIC within the meaning of Section 860G(a)(9)
of the Code, is designated in the related Loan REMIC Declaration.
(b) Concurrently with the assignment of the Mortgage
Loans (or, in the case of the [Separately Serviced Mortgage Loan] and the Early
Defeasance Mortgage Loans, the related Loan REMIC Regular Interests) and certain
related assets to the Trustee pursuant to Section 2.01(b) and in exchange
therefor, the REMIC I Regular Interests and the REMIC I Residual Interest shall
be issued. A separate REMIC I Regular Interest shall be issued with respect to
each Mortgage Loan and Loan REMIC Regular Interest that is an asset of REMIC I.
For purposes of this Agreement, each REMIC I Regular Interest shall relate to
the Mortgage Loan with respect to which it was issued (or, if applicable, to the
Loan REMIC Regular Interest in respect of which it was issued and also to the
corresponding Mortgage Loan) and to any successor REO Loan deemed outstanding
with respect to any REO Property acquired in respect of any such Mortgage Loan.
Neither the REMIC I Residual Interest nor any of the REMIC I Regular Interests
shall be certificated. The REMIC I Regular Interests and the REMIC I Residual
Interest shall collectively constitute the entire beneficial ownership of REMIC
I.
(c) The REMIC I Regular Interests shall constitute the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the REMIC I Residual Interest shall constitute the sole "residual interest"
(within the meaning of Section 860G(a)(2) of the Code), in REMIC I. Each Loan
REMIC Regular Interest shall constitute the "regular interest" (within the
meaning of Section 860G(a)(1) of the Code), and each Loan REMIC Residual
Interest shall constitute the sole "residual
-90-
interest" (within the meaning of Section 860G(a)(2) of the Code), in the related
Loan REMIC. None of the parties hereto, to the extent it is within the control
thereof, shall create or permit the creation of any other "interests" in REMIC I
or any Loan REMIC (within the meaning of Treasury regulation section
1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest
shall be the identification number for the related Mortgage Loan set forth in
the Mortgage Loan Schedule.
(e) Each REMIC I Regular Interest shall have an
Uncertificated Principal Balance. As of the Closing Date, the Uncertificated
Principal Balance of each REMIC I Regular Interest shall equal the Cut-off Date
Principal Balance of the related Mortgage Loan (as specified in the Mortgage
Loan Schedule). On each Distribution Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall be permanently reduced by any
distributions of principal deemed made with respect to such REMIC I Regular
Interest on such Distribution Date pursuant to Section 4.01(l) and, further, by
any Unfunded Principal Balance Reduction made with respect to such REMIC I
Regular Interest on such Distribution Date pursuant to Section 4.04(c). Except
as provided in the preceding sentence, the Uncertificated Principal Balance of
each REMIC I Regular Interest shall not otherwise be increased or reduced.
Deemed distributions to REMIC II in reimbursement of Unfunded Principal Balance
Reductions with respect to a REMIC I Regular Interest shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC I Regular Interest.
(f) Each REMIC I Regular Interest shall have a REMIC I
Remittance Rate. The REMIC I Remittance Rate with respect to any particular
REMIC I Regular Interest for any Interest Accrual Period shall be calculated as
follows:
(i) if, as of the Closing Date, the related
Mortgage Loan bears or bore, as the case may be, interest calculated on
a 30/360 Basis, then the REMIC I Remittance Rate with respect to the
subject REMIC I Regular Interest for any Interest Accrual Period shall
equal the Net Mortgage Rate in effect for the related Mortgage Loan as
of the Closing Date; and
(ii) if, as of the Closing Date, the related
Mortgage Loan bears or bore, as the case may be, interest calculated on
an Actual/360 Basis, then the REMIC I Remittance Rate with respect to
the subject REMIC I Regular Interest for any Interest Accrual Period
shall (subject to adjustment as provided below) equal the product of
(A) a fraction (expressed as a percentage), the numerator of which is
the number of days in such Interest Accrual Period, and the denominator
of which is 30, multiplied by (B) the Net Mortgage Rate in effect for
the related Mortgage Loan as of the Closing Date; provided that, in the
case of a REMIC I Regular Interest that corresponds to an Interest
Reserve Loan, if the subject Interest Accrual Period occurs during
January ____ or during January of any year thereafter or during
December ____ or during December of any year thereafter that does not
immediately precede a leap year, the REMIC I Remittance Rate with
respect to such REMIC I Regular Interest for such Interest Accrual
Period shall equal (M) the REMIC I Remittance Rate with respect to such
REMIC I Regular Interest for such Interest Accrual Period, as
calculated without regard to this proviso, minus (N) a fraction
(expressed as a percentage), the numerator of which is equal to 12
times the related Interest Reserve Amount that is to be transferred
from the Distribution Account to the Interest Reserve Account with
respect to such Interest Reserve Loan in the following calendar month
in
-91-
accordance with Section 3.04(c), and the denominator of which is equal
to the Uncertificated Principal Balance of such REMIC I Regular
Interest outstanding immediately prior to the related Distribution
Date; and, provided, further, that, in the case of a REMIC I Regular
Interest that corresponds to an Interest Reserve Loan, if the subject
Interest Accrual Period occurs during February ____ or during February
of any year thereafter, the REMIC I Remittance Rate with respect to
such REMIC I Regular Interest for such Interest Accrual Period shall
equal (S) the REMIC I Remittance Rate with respect to such REMIC I
Regular Interest for such Interest Accrual Period, as calculated
without regard to this proviso, plus (T) a fraction (expressed as a
percentage), the numerator of which is equal to 12 times any related
Interest Reserve Amount(s) to be transferred from the Interest Reserve
Account to the Distribution Account with respect to such Interest
Reserve Loan pursuant to Section 3.05(c) for distribution on the
related Distribution Date, and the denominator of which is equal to the
Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date.
(g) Each REMIC I Regular Interest shall bear interest,
and such interest shall commence accruing on __________, ____. In the case of
each REMIC I Regular Interest, such interest shall be calculated on a 30/360
Basis and, during each Interest Accrual Period, shall accrue at the REMIC I
Remittance Rate with respect to such REMIC I Regular Interest for such Interest
Accrual Period on the Uncertificated Principal Balance of such REMIC I Regular
Interest outstanding immediately prior to the related Distribution Date. The
total amount of such interest accrued with respect to each REMIC I Regular
Interest during each Interest Accrual Period (herein referred to as the
"Interest Accrual Amount" with respect to such REMIC I Regular Interest for such
Interest Accrual Period) shall equal 1/12 of the product of (i) the REMIC I
Remittance Rate with respect to such REMIC I Regular Interest for such Interest
Accrual Period, multiplied by (ii) the Uncertificated Principal Balance of such
REMIC I Regular Interest outstanding immediately prior to the related
Distribution Date. The portion of the Interest Accrual Amount with respect to
any REMIC I Regular Interest for any Interest Accrual Period that shall be
distributable to REMIC II, as the holder of such REMIC I Regular Interest, on
the related Distribution Date pursuant to Section 4.01(l), shall be an amount
(herein referred to as the "Current Interest Distribution Amount" with respect
to such REMIC I Regular Interest for the related Distribution Date) equal to (i)
the Interest Accrual Amount with respect to such REMIC I Regular Interest for
the related Interest Accrual Period, reduced (to not less than zero) by (ii) the
portion of any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date that is allocable to such REMIC I Regular Interest. For purposes of the
foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date shall, to the extent attributable to any particular Mortgage
Loan, be allocated to the related REMIC I Regular Interest. If the entire
Current Interest Distribution Amount with respect to any REMIC I Regular
Interest for any Distribution Date is not deemed distributed to REMIC II, as the
holder of such REMIC I Regular Interest, on such Distribution Date pursuant to
Section 4.01(l), then the unpaid portion of such Current Interest Distribution
Amount shall be added to, and be payable as part of, the Carryforward Interest
Distribution Amount with respect to such REMIC I Regular Interest for future
Distribution Dates. The "Carryforward Interest Distribution Amount" with respect
to any REMIC I Regular Interest for any Distribution Date is the excess, if any,
of (i) all Current Interest Distribution Amounts with respect to such REMIC I
Regular Interest for all prior Distribution Dates, if any, over (ii) the total
amount of interest deemed distributed to REMIC II with respect to such REMIC I
Regular Interest on all such prior Distribution Dates, if any, pursuant to
Section 4.01(l).
-92-
(h) Solely for purposes of satisfying Treasury regulation
section 1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I
Regular Interest shall be the Rated Final Distribution Date, and the Latest
Possible Maturity Date for each Loan REMIC Regular Interest shall be the Stated
Maturity Date for the related Mortgage Loan.
(i) Neither the REMIC I Residual Interest nor any Loan
REMIC Residual Interest shall have a principal balance or bear interest.
SECTION 2.09. Conveyance of REMIC I Regular Interests;
Acceptance of REMIC I Regular Interests by
Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all of its right, title and interest in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the REMIC III Regular
Interest Certificates and the Class R Certificates. The Trustee acknowledges the
assignment to it of the REMIC I Regular Interests and declares that it holds and
will hold the same in trust for the exclusive use and benefit of all present and
future Holders of the REMIC III Regular Interest Certificates and the Class R
Certificates.
SECTION 2.10. Creation of REMIC II; Issuance of the REMIC
II Regular Interests and the REMIC II
Residual Interest; Certain Matters Involving
REMIC II.
(a) It is the intention of the parties hereto that the
segregated pool of assets consisting of the REMIC I Regular Interests constitute
a REMIC for federal income tax purposes and, further, that such segregated pool
of assets be designated as "REMIC II". The Closing Date is hereby designated as
the "Startup Day" of REMIC II within the meaning of Section 860G(a)(9) of the
Code.
(b) Concurrently with the assignment of the REMIC I
Regular Interests to the Trustee pursuant to Section 2.09 and in exchange
therefor, the REMIC II Regular Interests and the REMIC II Residual Interest
shall be issued. There shall be 19 separate REMIC II Regular Interests. Neither
the REMIC II Residual Interest nor any of the REMIC II Regular Interests shall
be certificated. The REMIC II Regular Interests and the REMIC II Residual
Interest shall collectively constitute the entire beneficial ownership of REMIC
II.
(c) The REMIC II Regular Interests shall constitute the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the REMIC II Residual Interest shall constitute the sole "residual interest"
(within the meaning of Section 860G(a)(2) of the Code), in REMIC II. None of the
parties hereto, to the extent it is within the control thereof, shall create or
permit the creation of any other "interests" in REMIC II (within the meaning of
Treasury regulation section 1.860D-1(b)(1)).
(d) The REMIC II Regular Interests shall have the
following alphabetic or alphanumeric designations: "X-0", "X-0X", "X-0X", "X-0",
"X", "C", "D", "E", "F", "H", "J", "K", "L", "M", "N", "P", "Q", "S" and "T",
respectively.
(e) Each REMIC II Regular Interest shall have an
Uncertificated Principal Balance. The following table sets forth for each REMIC
II Regular Interest the initial Uncertificated Principal Balance thereof:
-93-
DESIGNATION OF
REMIC II INITIAL UNCERTIFICATED
REGULAR INTEREST PRINCIPAL BALANCE
---------------- -----------------
A-1 $
A-2A $
A-2B $
A-3 $
B $
C $
D $
E $
F $
H $
J $
K $
L $
M $
N $
P $
Q $
S $
T $
On each Distribution Date, the Uncertificated Principal
Balance of each REMIC II Regular Interest shall be permanently reduced by any
distributions of principal deemed made with respect to such REMIC II Regular
Interest on such Distribution Date pursuant to Section 4.01(k) and, further, by
any Unfunded Principal Balance Reduction made with respect to such REMIC II
Regular Interest on such Distribution Date pursuant to Section 4.04(b). Except
as provided in the preceding sentence, the Uncertificated Principal Balance of
each REMIC II Regular Interest shall not otherwise be increased or decreased.
Deemed distributions to REMIC III in reimbursement of Unfunded Principal Balance
Reductions with respect to a REMIC II Regular Interest, shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC II Regular Interest.
(f) Each REMIC II Regular Interest shall have a REMIC II
Remittance Rate that, with respect to any Interest Accrual Period, shall equal
the weighted average, expressed as a percentage and rounded to eight decimal
places, of the respective REMIC I Remittance Rates in effect for all the REMIC I
Regular Interests for such Interest Accrual Period, weighted on the basis of the
respective Uncertificated Principal Balances of the REMIC I Regular Interests
outstanding immediately prior to the related Distribution Date.
(g) Each REMIC II Regular Interest shall bear interest,
and such interest shall commence accruing on __________, ____. In the case of
each REMIC II Regular Interest, such interest shall be calculated on a 30/360
Basis and, during each Interest Accrual Period, shall accrue at the REMIC II
Remittance Rate with respect to such REMIC II Regular Interest for such Interest
Accrual Period on the Uncertificated Principal Balance of such REMIC II Regular
Interest outstanding
-94-
immediately prior to the related Distribution Date. The total amount of such
interest accrued with respect to each REMIC II Regular Interest during each
Interest Accrual Period (herein referred to as the "Interest Accrual Amount"
with respect to such REMIC II Regular Interest for such Interest Accrual Period)
shall equal 1/12 of the product of (i) the REMIC II Remittance Rate with respect
to such REMIC II Regular Interest for such Interest Accrual Period, multiplied
by (ii) the Uncertificated Principal Balance of such REMIC II Regular Interest
outstanding immediately prior to the related Distribution Date. The portion of
the Interest Accrual Amount with respect to any REMIC II Regular Interest for
any Interest Accrual Period that shall be distributable to REMIC III, as the
holder of such REMIC II Regular Interest, on the related Distribution Date
pursuant to Section 4.01(k), shall be an amount (herein referred to as the
"Current Interest Distribution Amount" with respect to such REMIC II Regular
Interest for the related Distribution Date) equal to (i) the Interest Accrual
Amount with respect to such REMIC II Regular Interest for the related Interest
Accrual Period, reduced (to not less than zero) by (ii) the portion of any Net
Aggregate Prepayment Interest Shortfall for such Distribution Date that is
allocable to such REMIC II Regular Interest. For purposes of the foregoing, the
Net Aggregate Prepayment Interest Shortfall, if any, for each Distribution Date
shall be allocated among all the REMIC II Regular Interests on a pro rata basis
in accordance with their respective Interest Accrual Amounts for the related
Interest Accrual Period. If the entire Current Interest Distribution Amount with
respect to any REMIC II Regular Interest for any Distribution Date is not deemed
distributed to REMIC III, as the holder of such REMIC II Regular Interest, on
such Distribution Date pursuant to Section 4.01(k), then the unpaid portion of
such Current Interest Distribution Amount shall be added to, and be payable as
part of, the Carryforward Interest Distribution Amount with respect to such
REMIC II Regular Interest for future Distribution Dates. The "Carryforward
Interest Distribution Amount" with respect to any REMIC II Regular Interest for
any Distribution Date is the excess, if any, of (i) all Current Interest
Distribution Amounts with respect to such REMIC II Regular Interest for all
prior Distribution Dates, if any, over (ii) the total amount of interest deemed
distributed to REMIC III with respect to such REMIC II Regular Interest on all
such prior Distribution Dates, if any, pursuant to Section 4.01(k).
(h) Solely for purposes of satisfying Treasury regulation
section 1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC II
Regular Interest shall be the Rated Final Distribution Date.
(i) The REMIC II Residual Interest shall not have a
principal balance and shall not bear interest.
SECTION 2.11. Conveyance of REMIC II Regular Interests;
Acceptance of REMIC II Regular Interests by
Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all of its right, title and interest in and to the REMIC II Regular
Interests to the Trustee for the benefit of the Holders of the REMIC III Regular
Interest Certificates and the Class R Certificates. The Trustee acknowledges the
assignment to it of the REMIC II Regular Interests and declares that it holds
and will hold the same in trust for the exclusive use and benefit of all present
and future Holders of the REMIC III Regular Interest Certificates and the Class
R Certificates.
-95-
SECTION 2.12. Creation of REMIC III; Issuance of the REMIC
III Regular Interest Certificates, the Group
X-2 REMIC III Regular Interests and the
REMIC III Residual Interest; Certain Matters
Involving REMIC III.
(a) It is the intention of the parties hereto that the
segregated pool of assets consisting of the REMIC II Regular Interests
constitute a REMIC for federal income tax purposes and, further, that such
segregated pool of assets be designated as "REMIC III". The Closing Date is
hereby designated as the "Startup Day" of REMIC III within the meaning of
Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC II
Regular Interests to the Trustee pursuant to Section 2.11 and in exchange
therefor, the Group X-2 REMIC III Regular Interests and the REMIC III Residual
Interest shall be issued, and the Trustee shall execute, and the Certificate
Registrar shall authenticate and deliver, to or upon the order of the Depositor,
the REMIC III Regular Interest Certificates in authorized denominations. There
shall be 20 Classes of REMIC III Regular Interest Certificates. The Class X-2
Certificates shall collectively represent all of the Group X-2 REMIC III Regular
Interests. The REMIC III Residual Interest shall not be certificated. The
interests evidenced by the REMIC III Regular Interest Certificates, together
with the REMIC III Residual Interest, shall collectively constitute the entire
beneficial ownership of REMIC III.
(c) The respective Group X-2 REMIC III Regular Interests
and the respective interests evidenced by the Class X-1 Certificates and the 18
Classes of Principal Balance Certificates shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
III Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860(G)(a)(2) of the Code), in REMIC III. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC III (within the meaning of
Treasury regulation section 1.860D-1(b)(1)).
(d) The REMIC III Regular Interest Certificates will have
the following respective alphabetic or alphanumeric class designations: "X-0",
"X-0", "X-0", "X", "C", "D", "E", "F", "H", "J", "K", "L", "M", "N", "P", "Q",
"S", "T", "X-1" and "X-2".
The Group X-2 REMIC III Regular Interests will have the
following respective alphabetic or alphanumeric designations: "X-2-A-2B",
"X-2-A-3", "X-2-B", "X-2-C", "X-2-D" and "X-2-E".
(e) Each Class of Principal Balance Certificates shall
have a Class Principal Balance. The following table sets forth for each Class of
Principal Balance Certificates the initial Class Principal Balance thereof.
-96-
CLASS INITIAL CLASS
DESIGNATION PRINCIPAL BALANCE
----------- -----------------
A-1 $
A-2 $
A-3 $
B $
C $
D $
E $
F $
H $
J $
K $
L $
M $
N $
P $
Q $
S $
T $
On each Distribution Date, the Class Principal Balance of each
Class of Principal Balance Certificates shall be permanently reduced by any
distributions of principal made with respect to such Class of Certificates on
such Distribution Date pursuant to Section 4.01(a) or Section 4.01(b), as
applicable, and, further, by any Unfunded Principal Balance Reduction made with
respect to such Class of Certificates on such Distribution Date pursuant to
Section 4.04(a). Except as provided in the preceding sentence, the Class
Principal Balance of each Class of Principal Balance Certificates shall not
otherwise be increased or reduced. Distributions to the Holders of any Class of
Principal Balance Certificates in reimbursement of any Unfunded Principal
Balance Reductions with respect to such Class of Certificates shall not
constitute distributions of principal and shall not result in any reduction of
the related Class Principal Balance.
The Interest Only Certificates shall not have principal
balances. For purposes of accruing interest, however, the Class X-1 Certificates
shall have a Class Notional Amount that is, as of any date of determination,
equal to the total of the then Uncertificated Principal Balances of all the
REMIC II Regular Interests; and the Class X-2 Certificates shall have a Class
Notional Amount that is, as of any date of determination, equal to the total of
the Uncertificated Principal Balances of REMIC II Regular Interest A-2B, REMIC
II Regular Interest A-3, REMIC II Regular Interest B, REMIC II Regular Interest
C, REMIC II Regular Interest D and REMIC II Regular Interest E.
None of the Group X-2 REMIC III Regular Interests shall have
principal balances. For purposes of accruing interest, however, each Group X-2
REMIC III Regular Interest shall have a notional amount that is, as of any date
of determination, equal to the Uncertificated Principal Balance of its
Corresponding REMIC II Regular Interest.
-97-
(f) Each Class of REMIC III Regular Interest Certificates
shall have a Pass-Through Rate, and each Group X-2 REMIC III Regular Interest
shall have a REMIC III Remittance Rate.
The Pass-Through Rate with respect to each Class of Principal
Balance Certificates for any Interest Accrual Period shall be as follows:
(i) in the case of the Class A-1 Certificates,
____% per annum;
(ii) in the case of the Class A-2 Certificates,
____% per annum;
(iii) in the case of the Class A-3 Certificates,
____% per annum;
(iv) in the case of the Class B Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest B for such Interest Accrual
Period;
(v) in the case of the Class C Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest C for such Interest Accrual
Period;
(vi) in the case of the Class D Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest D for such Interest Accrual
Period;
(vii) in the case of the Class E Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest E for such interest Accrual
Period;
(viii) in the case of the Class F Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest F for such Interest Accrual
Period; and
(ix) in the case of the Class H Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest H for such Interest Accrual
Period;
(x) in the case of the Class J Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest J for such Interest Accrual
Period;
(xi) in the case of the Class K Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest K for such Interest Accrual
Period;
(xii) in the case of the Class L Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest L for such Interest Accrual
Period;
-98-
(xiii) in the case of the Class M Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest M for such Interest Accrual
Period;
(xiv) in the case of the Class N Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest N for such Interest Accrual
Period;
(xv) in the case of the Class P Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest P for such Interest Accrual
Period;
(xvi) in the case of the Class Q Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest Q for such Interest Accrual
Period;
(xvii) in the case of the Class S Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest S for such Interest Accrual
Period; and
(xviii) in the case of the Class T Certificates, the
lesser of (A) ____% per annum and (B) the REMIC II Remittance Rate with
respect to REMIC II Regular Interest T for such Interest Accrual
Period.
With respect to the Class X-1 Certificates, the related
Pass-Through Rate for each Interest Accrual Period shall be a rate per annum
equal to the excess, if any, of (i) the weighted average, expressed as a
percentage and rounded to ten decimal places, of the respective REMIC II
Remittance Rates in effect during such Interest Accrual Period in respect of all
of the REMIC II Regular Interests, over (ii) the weighted average, expressed as
a percentage and rounded to ten decimal places, of the respective Adjusted REMIC
II Remittance Rates in effect during such Interest Accrual Period in respect of
all of the REMIC II Regular Interests. For purposes of the foregoing, the
relevant weighting shall be based on the Uncertificated Principal Balance of
each such REMIC II Regular Interest immediately prior to the related
Distribution Date.
With respect to the Class X-2 Certificates, the Pass-Through
Rate for any Interest Accrual Period shall equal the weighted average, expressed
as a percentage and rounded to ten decimal places, of the respective REMIC III
Remittance Rates in effect for all of the Group X-2 REMIC III Regular Interests
for such Interest Accrual Period, weighted on the basis of the respective
notional amounts of the Group X-2 REMIC III Regular Interests immediately prior
to the related Distribution Date.
The REMIC III Remittance Rate for any Group X-2 REMIC III
Regular Interest for any Interest Accrual Period shall equal the excess, if any,
of (i) the Adjusted REMIC II Remittance Rate in effect during such Interest
Accrual Period for the Corresponding REMIC II Regular Interest in respect of
such Group X-2 REMIC III Regular Interest, over (ii) the Net Adjusted REMIC II
Remittance Rate in effect during such Interest Accrual Period for the
Corresponding REMIC II Regular Interest in respect of such Group X-2 REMIC III
Regular Interest.
-99-
(g) Each Class of REMIC III Regular Interest Certificates
shall bear interest, and such interest shall commence accruing on __________,
____. In the case of each Class of REMIC III Regular Interest Certificates, such
interest shall be calculated on a 30/360 Basis and, during each Interest Accrual
Period, shall accrue at the Pass-Through Rate with respect to such Class of
Certificates for such Interest Accrual Period on the Class Principal Balance
(or, in the case of a Class of Interest Only Certificates, the Class Notional
Amount) of such Class of Certificates outstanding immediately prior to the
related Distribution Date. The total amount of such interest accrued with
respect to each Class of REMIC III Regular Interest Certificates during each
Interest Accrual Period (herein referred to as the "Interest Accrual Amount"
with respect to such Class of Certificates for such Interest Accrual Period)
shall equal 1/12 of the product of (i) the Pass-Through Rate with respect to
such Class of Certificates for such Interest Accrual Period, multiplied by (ii)
the Class Principal Balance (or, in the case of a Class of Interest Only
Certificates, the Class Notional Amount) of such Class of Certificates
outstanding immediately prior to the related Distribution Date. The portion of
the Interest Accrual Amount with respect to the Class X-2 Certificates for any
Interest Accrual Period that is attributable to any particular Group X-2 REMIC
III Regular Interest shall be an amount (herein referred to as the "Interest
Accrual Amount" with respect to such Group X-2 REMIC III Regular Interest for
such Interest Accrual Period) equal to 1/12 of the product of (i) the REMIC III
Remittance Rate with respect to such Group X-2 REMIC III Regular Interest for
such Interest Accrual Period, multiplied by (ii) the notional amount of such
Group X-2 REMIC III Regular Interest immediately prior to the related
Distribution Date.
The portion of the Interest Accrual Amount with respect to any
Class of REMIC III Regular Interest Certificates for any Interest Accrual Period
that shall be distributable to the Holders thereof on the related Distribution
Date pursuant to Section 4.01(a) or Section 4.01(b), as applicable, shall be an
amount (herein referred to as the "Current Interest Distribution Amount" with
respect to such Class of Certificates for the related Distribution Date) equal
to (i) the Interest Accrual Amount with respect to such Class of Certificates
for the related Interest Accrual Period, reduced (to not less than zero) by (ii)
the portion of any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date that is allocable to such Class of Certificates. For purposes
of the foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for
each Distribution Date shall be allocated among all the Classes of REMIC III
Regular Interest Certificates on a pro rata basis in accordance with their
respective Interest Accrual Amounts for the related Interest Accrual Period. The
portion of the Current Interest Distribution Amount with respect to the Class of
X-2 Certificates for any Distribution Date that is attributable to any
particular Group X-2 REMIC III Regular Interest shall be an amount (herein
referred to as the "Current Interest Distribution Amount" with respect to such
Group X-2 REMIC III Regular Interest for such Distribution Date) equal to (i)
the Interest Accrual Amount with respect to such Group X-2 REMIC III Regular
Interest for the related Interest Accrual Period, reduced (to not less than
zero) by (ii) such Group X-2 REMIC III Regular Interest's share of the portion
of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date
that is allocable to the Class X-2 Certificates. For purposes of the foregoing,
any portion of the Net Aggregate Prepayment Interest Shortfall for any
Distribution Date that is allocated to the Class X-2 Certificates shall in turn
be allocated among the Group X-2 REMIC III Regular Interests on a pro rata basis
in accordance with their respective Interest Accrual Amounts for the related
Interest Accrual Period.
If the entire Current Interest Distribution Amount with
respect to any Class of REMIC III Regular Interest Certificates for any
Distribution Date is not distributed to the Holders thereof on such Distribution
Date pursuant to Section 4.01(a) or Section 4.01(b), as applicable, then the
unpaid portion of such Current Interest Distribution Amount shall be added to,
and be payable as part of, the
-100-
Carryforward Interest Distribution Amount with respect to such Class of
Certificates for future Distribution Dates. The "Carryforward Interest
Distribution Amount" with respect to any Class of REMIC III Regular Interest
Certificates for any Distribution Date is the excess, if any, of (i) all Current
Interest Distribution Amounts with respect to such Class of Certificates for all
prior Distribution Dates, if any, over (ii) the total amount of interest
distributed to the Holders of such Class of Certificates on all such prior
Distribution Dates, if any, pursuant to Section 4.01(a) or Section 4.01(b), as
applicable. The portion of the Carryforward Interest Distribution Amount with
respect to the Class X-2 Certificates for any Distribution Date that is
attributable to any particular Group X-2 REMIC III Regular Interest shall be an
amount (herein referred to as the "Carryforward Interest Distribution Amount"
with respect to such Group X-2 REMIC III Regular Interest for such Distribution
Date) equal the excess, if any, of (i) all Current Interest Distribution Amounts
with respect to such Group X-2 REMIC III Regular Interest for all prior
Distribution Dates, if any, over (ii) the total amount of interest deemed
distributed to the Holders of such Class of Certificates with respect to such
Group X-2 REMIC III Regular Interest on all prior Distribution Dates, if any,
pursuant to Section 4.01(a).
(h) Solely for purposes of satisfying Treasury regulation
section 1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each Class of
REMIC III Regular Interest Certificates (or, in the case of the Class X-2
Certificates, for each Group X-2 REMIC III Regular Interest) shall be the Rated
Final Distribution Date.
(i) The REMIC III Residual Interest shall not have a
principal balance and shall not bear interest.
SECTION 2.13. Acceptance of Grantor Trusts and Group
Terrorism Insurance Policy by Trustee;
Issuance of the Class Y and Class R
Certificates.
(a) It is the intention of the parties hereto that the
segregated pool of assets consisting of any collections of Post-ARD Additional
Interest received on the ARD Mortgage Loans constitute a Grantor Trust for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "Grantor Trust Y". The Trustee, by its execution and delivery
hereof, acknowledges the assignment to it of the assets of Grantor Trust Y and
declares that it will hold such assets in trust for the exclusive use and
benefit of all present and future Holders of the Class Y Certificates.
Concurrently with the assignment to it of the assets included in Grantor Trust
Y, the Trustee shall execute, and the Certificate Registrar shall authenticate
and deliver, to or upon the order of the Depositor, the Class Y Certificates in
authorized denominations evidencing the entire beneficial ownership of Grantor
Trust Y. The rights of the Holders of the Class Y Certificates to receive
distributions from the proceeds of Grantor Trust Y, and all ownership interests
of such Holders in and to such distributions, shall be as set forth in this
Agreement.
(b) The Depositor, as of the Closing Date, and
concurrently with the execution and delivery of this Agreement, does hereby
assign without recourse, all right, title and interest of the Depositor in and
to the REMIC I Residual Interest, the REMIC II Residual Interest, the REMIC III
Residual Interest and the Loan REMIC Residual Interests to the Trustee for the
benefit of the Holders of the Class R Certificates. It is the intention of the
parties hereto that the segregated pool of assets consisting of the REMIC I
Residual Interest, the REMIC II Residual Interest, the REMIC III Residual
Interest and the Loan REMIC Residual Interests constitute a Grantor Trust for
federal income tax
-101-
purposes and, further, that such segregated pool of assets be designated as
"Grantor Trust R". The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the assets of Grantor Trust R and declares
that it will hold such assets in trust for the exclusive use and benefit of all
present and future Holders of the Class R Certificates. Concurrently with the
assignment to it of the assets included in Grantor Trust R, the Trustee shall
execute, and the Certificate Registrar shall authenticate and deliver, to or
upon the order of the Depositor, the Class R Certificates in authorized
denominations evidencing the entire beneficial ownership of Grantor Trust R. The
rights of the Holders of the Class R Certificates to receive distributions from
the proceeds of Grantor Trust R, and all ownership interests of such Holders in
and to such distributions, shall be as set forth in this Agreement.
(c) It is the intention of the parties hereto that the
Group Terrorism Insurance Policy and any amounts paid thereunder shall
collectively constitute an "outside reserve fund" within the meaning of Treasury
regulation section 1.860G-2(h), designated as the "Group Terrorism Insurance
Policy Reserve Fund". The Trustee, by execution and delivery hereof,
acknowledges the assignment to it of the assets of the Group Terrorism Insurance
Policy Reserve Fund and declares that it holds and will hold such assets,
through the Special Servicer, in accordance with Section 3.07(e), in trust and
for the benefit of Certificateholders and the Depositor, as their interests may
appear. Notwithstanding anything herein to the contrary, unless there is a
change in applicable law occurring after the date hereof, for all income and
franchise tax purposes, the Depositor shall be treated and reported as the sole
beneficial owner of the Group Terrorism Insurance Policy Reserve Fund.
-102-
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) The Master Servicer and the Special Servicer shall
each service and administer the Serviced Mortgage Loans and any Administered REO
Properties that it is obligated to service and administer pursuant to this
Agreement, for the benefit of the Certificateholders, as a collective whole, in
accordance with any and all applicable laws, in accordance with the express
terms of this Agreement and the related Mortgage Loan Documents and, to the
extent consistent with the foregoing, in accordance with the Servicing Standard.
The Master Servicer or the Special Servicer, as applicable, in accordance with
this Agreement, shall service and administer each Cross-Collateralized Group as
a single Serviced Mortgage Loan as and when necessary and appropriate consistent
with the Servicing Standard and applicable law and in accordance with this
Agreement. Without limiting the foregoing, and subject to Section 3.21, (i) the
Master Servicer shall service and administer all Performing Serviced Mortgage
Loans, and (ii) the Special Servicer shall service and administer (X) each
Serviced Mortgage Loan as to which a Servicing Transfer Event has occurred and
is continuing, and (Y) each Administered REO Property; provided, however, that
the Master Servicer shall continue to collect information and, subject to its
receipt of information from the Special Servicer as provided herein, prepare and
deliver all reports to the Trustee required hereunder with respect to any
Specially Serviced Mortgage Loans and Administered REO Properties (and the
related REO Loans), to process payments at the direction of the Special Servicer
with respect to any Specially Serviced Mortgage Loans and Administered REO
Properties, and to render such incidental services with respect to any Specially
Serviced Mortgage Loans and Administered REO Properties as are specifically
provided for herein; and provided, further, that the Special Servicer may
communicate with the Borrower under any Performing Serviced Mortgage Loan in
order to obtain information required to be provided by such Borrower under the
related Mortgage Loan Documents that the Master Servicer has been unsuccessful
in obtaining and shall render such incidental services with respect to any
Performing Serviced Mortgage Loans as are specifically provided for herein. The
Master Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property.
(b) Subject to Section 3.01(a), 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 such servicing and administration referred to in 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
or in the name of the Trustee, with respect to each of the Serviced Mortgage
Loans it is obligated to service hereunder, is hereby authorized and empowered
by the Trustee to execute and deliver, on behalf of the Certificateholders and
the Trustee or any of them: (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and other related collateral; and (ii) any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments. In addition, without
limiting the generality of the foregoing, each of the Master Servicer and the
Special Servicer, with respect to each of the Serviced Mortgage Loans it is
obligated to service hereunder, is authorized and empowered by the Trustee to
execute and deliver, in accordance with the Servicing Standard and subject to
Sections 3.08 and 3.20, any and all assumptions, modifications, waivers,
substitutions, extensions, amendments or consents to or with respect to any
-103-
documents contained in the related Mortgage File. Subject to Section 3.10, the
Trustee shall, at the written request of a Servicing Officer of the Master
Servicer or the Special Servicer, furnish, or cause to be so furnished, to the
Master Servicer or the Special Servicer, as appropriate, any limited powers of
attorney and other documents (each of which shall be prepared by the Master
Servicer or the Special Servicer, as applicable) necessary or appropriate to
enable it to carry out its servicing and administrative duties hereunder,
including for purposes of drawing on any letter of credit; 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.
(c) The parties hereto acknowledge that, pursuant to the
[Separately Serviced Mortgage Loan] Intercreditor Agreements: (i) until the
occurrence of a [Separately Serviced Mortgage Loan] Change of Servicing Control
Event, the [Separately Serviced Mortgage Loan] Loan Group is to be serviced and
administered by the [Other CMBS Series] Master Servicer and the [Other CMBS
Series] Special Servicer in accordance with the [Other CMBS Series PSA]
(provided that the Master Servicer is responsible for performing such services
with respect to the [Separately Serviced Mortgage Loan] as are specifically set
forth in Articles I through XI of this Agreement); and (ii) upon the occurrence
of a [Separately Serviced Mortgage Loan] Change of Servicing Control Event, the
[Separately Serviced Mortgage Loan] Loan Group will be serviced and administered
by the Master Servicer and Special Servicer in accordance with Article XII of
this Agreement; provided that, if the [Other CMBS Series PSA] is ever to be
replaced by any other [Separately Serviced Mortgage Loan] Servicing Agreement,
then prior to exercising any consent right that the Trustee may have with
respect to that successor [Separately Serviced Mortgage Loan] Servicing
Agreement, the Trustee shall obtain written confirmation from each Rating Agency
that such successor [Separately Serviced Mortgage Loan] Servicing Agreement will
not result in an Adverse Rating Event with respect to any Class of Rated
Certificates.
For so long as (i) the [Separately Serviced Mortgage Loan] or
any [Separately Serviced Mortgage Loan] REO Loan are part of the Mortgage Pool
and (ii) the [Separately Serviced Mortgage Loan] Loan Group and/or any
[Separately Serviced Mortgage Loan] REO Property are being serviced and
administered under any [Separately Serviced Mortgage Loan] Servicing Agreement,
the Master Servicer shall use reasonable efforts to monitor the performance and,
to the extent that it has standing to do so, enforce the obligations of the
[Separately Serviced Mortgage Loan] Master Servicer and the [Separately Serviced
Mortgage Loan] Special Servicer, respectively, under such [Separately Serviced
Mortgage Loan] Servicing Agreement. Such enforcement, including the legal
prosecution of claims and the pursuit of other appropriate remedies, shall be in
such form and carried out to such an extent and at such time as the Master
Servicer, in its reasonable judgment, would require were it the owner of the
[Separately Serviced Mortgage Loan]. The reasonable costs and expenses incurred
by the Master Servicer in connection with such enforcement shall be paid by, and
reimbursable as, Servicing Advances.
(d) The relationship of each of the Master Servicer and
the Special Servicer to the Trustee and, unless they are the same Person, each
other under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or, except as
specifically set forth herein, agent.
-104-
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) The Master Servicer (in the case of Performing
Serviced Mortgage Loans) and the Special Servicer (in the case of Specially
Serviced Mortgage Loans) shall each undertake reasonable efforts to collect all
payments called for under the terms and provisions of the Serviced Mortgage
Loans and, in connection therewith, shall follow such collection procedures as
are consistent with applicable law, the express terms of this Agreement and the
related Mortgage Loan Documents and, to the extent consistent with the
foregoing, the Servicing Standard; provided that the Master Servicer shall not,
with respect to any Serviced Mortgage Loan that is an ARD Mortgage Loan after
its Anticipated Repayment Date, take any enforcement action with respect to the
payment of Post-ARD Additional Interest (other than the making of requests for
its collection), and the Special Servicer shall only do so if (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Mortgage Loan is, in the reasonable judgment of the Special Servicer, and
without regard to such Post-ARD Additional Interest, also necessary, appropriate
and consistent with the Servicing Standard or (ii) all other amounts due under
such Mortgage Loan have been paid, the payment of such Post-ARD Additional
Interest has not been forgiven in accordance with Section 3.20 and, in the
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
Advance Interest. Consistent with the foregoing, the Master Servicer (as to
Performing Serviced Mortgage Loans) and the Special Servicer (as to Specially
Serviced Mortgage Loans) each may waive any Default Charges in connection with
any specific delinquent payment on a Serviced Mortgage Loan; provided that, to
the extent the Master Servicer, as to a Performing Serviced Mortgage Loan, and
the Special Servicer, as to a Specially Serviced Mortgage Loan, waives any
Default Charges, any outstanding Advance Interest, property inspection costs and
other Additional Trust Fund Expenses with respect to such Mortgage Loan that
would otherwise have been paid out of such Default Charges shall be paid out of
the Additional Master Servicing Compensation payable to the Master Servicer or
Additional Special Servicing Compensation payable to the Special Servicer, as
the case may be, with respect to such Mortgage Loan; and provided, further, that
if no Additional Master Servicing Compensation or Additional Special Servicing
Compensation, as applicable, is available to offset the outstanding Advance
Interest, property inspection costs and other Additional Trust Fund Expenses
with respect to such Mortgage Loan that would otherwise be offset by the Default
Charges, then the Master Servicer or the Special Servicer, as the case may be,
shall not waive such Default Charges unless (i) it is the first such waiver with
respect to the subject Serviced Mortgage Loan under such circumstances
(regardless of whether such first waiver is made by the Master Servicer or the
Special Servicer), or (ii) in the case of a Performing Serviced Mortgage Loan,
the Master Servicer has obtained the consent of the Special Servicer which has,
as and to the extent contemplated by Section 3.24, obtained the consent of the
Controlling Class Representative, or (iii) in the case of a Specially Serviced
Mortgage Loan, the Special Servicer has, as and to the extent contemplated by
Section 3.24, obtained the consent of the Controlling Class Representative.
(b) At least 90 days prior to the maturity date of each
Serviced Mortgage Loan that is a Balloon Mortgage Loan, the Master Servicer
shall send a notice to the related Borrower of such maturity date (with a copy
to be sent to the Special Servicer) and shall request confirmation that the
Balloon Payment will be paid by such maturity date; provided that if the Master
Servicer has not received such confirmation, the Master Servicer shall send a
second notice at least 60 days prior to such maturity date, and a third notice
at least 30 days prior to such maturity date.
-105-
(c) Promptly following the Closing Date, the Trustee
shall send written notice to the [Other CMBS Series] Master Servicer and the
[Other CMBS Series] Trustee stating that, as of the Closing Date, the Trustee is
the holder of the [Separately Serviced Mortgage Loan] and directing the [Other
CMBS Series] Master Servicer to remit to the Master Servicer all amounts payable
to, and to forward, deliver or otherwise make available, as the case may be, to
the Master Servicer all reports, statements, documents, communications and other
information that are to be forwarded, delivered or otherwise made available to,
the holder of the [Separately Serviced Mortgage Loan] under the [Separately
Serviced Mortgage Loan] Intercreditor Agreements and the [Other CMBS Series
PSA]. In the event that the [Other CMBS Series PSA] is replaced by another
[Separately Serviced Mortgage Loan] Servicing Agreement and a Responsible
Officer of the Trustee is aware of such replacement, then the Trustee shall
promptly send a comparable written notice to the then holder of the [Separately
Serviced Mortgage Loan] Pari Passu Companion Loan and to the [Separately
Serviced Mortgage Loan] Master Servicer under such new [Separately Serviced
Mortgage Loan] Servicing Agreement. The Master Servicer shall, on the day of
receipt thereof, deposit into the Collection Account all amounts received by it
from the [Separately Serviced Mortgage Loan] Master Servicer or any other party
under any [Separately Serviced Mortgage Loan] Servicing Agreement with respect
to the [Separately Serviced Mortgage Loan], the [Separately Serviced Mortgage
Loan] Mortgaged Property or any [Separately Serviced Mortgage Loan] REO
Property. In the event the Master Servicer fails to so receive any amounts due
to the holder of the [Separately Serviced Mortgage Loan] during any calendar
month under the [Separately Serviced Mortgage Loan] Intercreditor Agreements and
any [Separately Serviced Mortgage Loan] Servicing Agreement by 2:00 p.m. (New
York City time) on the Master Servicer Remittance Date in such calendar month,
the Master Servicer shall (i) notify the [Separately Serviced Mortgage Loan]
Master Servicer or other applicable party responsible for making such
remittances, as well as the holder of the [Separately Serviced Mortgage Loan]
Pari Passu Companion Loan, that such amounts due with respect to the [Separately
Serviced Mortgage Loan] have not been received (specifying the amount of such
deficiency) and (ii) if and to the extent that the amount in question is a
Monthly Payment or Assumed Monthly Payment with respect to the [Separately
Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan,
make a P&I Advance with respect to such amounts as required by the terms of this
Agreement in accordance with Section 4.03. Further, in accordance with Section
4.03, in the event the Master Servicer fails to make such P&I Advance with
respect to the [Separately Serviced Mortgage Loan] or any [Separately Serviced
Mortgage Loan] REO Loan, then the Trustee shall make such P&I Advance.
SECTION 3.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall establish and maintain one
or more accounts (the "Servicing Accounts"), in which all Escrow Payments
received by it with respect to the Serviced Mortgage Loans shall be deposited
and retained. Subject to any terms of the related Mortgage Loan Documents that
specify the nature of the account in which Escrow Payments shall be held, each
Servicing Account shall be an Eligible Account. As and to the extent consistent
with the Servicing Standard, applicable law and the related Mortgage Loan
Documents, the Master Servicer may make withdrawals from the Servicing Accounts
maintained by it, and may apply Escrow Payments held therein with respect to any
Serviced Mortgage Loan (together with interest and other income earned thereon),
only as follows: (i) to effect the payment of real estate taxes, assessments,
insurance premiums (including premiums on any Environmental Insurance Policy),
ground rents (if applicable) and comparable items in respect of the related
Mortgaged Property; (ii) to reimburse the Master Servicer, the
-106-
Special Servicer, the Trustee or any Fiscal Agent, as applicable, for any
unreimbursed Servicing Advances made thereby with respect to such Mortgage Loan
to cover any of the items described in the immediately preceding clause (i);
(iii) to refund to the related Borrower any sums as may be determined to be
overages; (iv) to pay interest or other income, if required and as described
below, to the related Borrower on balances in the Servicing Account (or, if and
to the extent not payable to the related Borrower to pay such interest or other
income (up to the amount of any Net Investment Earnings in respect of such
Servicing Account for each Collection Period) to the Master Servicer); (v) after
an event of default, to pay the principal of, accrued interest on and any other
amounts payable with respect to such Mortgage Loan; or (vi) to clear and
terminate the Servicing Account at the termination of this Agreement in
accordance with Section 9.01. The Master Servicer shall pay or cause to be paid
to the related Borrowers interest and other income, if any, earned on the
investment of funds in Servicing Accounts maintained thereby, if and to the
extent required by law or the terms of the related Mortgage Loan Documents. If
the Master Servicer shall deposit in a Servicing Account any amount not required
to be deposited therein, it may at any time withdraw such amount from such
Servicing Account, any provision herein to the contrary notwithstanding.
Promptly after any Escrow Payments are received by the Special Servicer from any
Borrower, and in any event within one Business Day after any such receipt, the
Special Servicer shall remit such Escrow Payments to the Master Servicer for
deposit in the applicable Servicing Account(s).
(b) The Master Servicer shall as to each Serviced
Mortgage Loan (including each Specially Serviced Mortgage Loan) (i) maintain
accurate records with respect to the related Mortgaged Property reflecting the
status of real estate taxes, assessments and other similar items that are or may
become a lien thereon and the status of insurance premiums and any ground rents
payable in respect thereof and (ii) use reasonable efforts consistent with the
Servicing Standard to obtain, from time to time, all bills for the payment of
such items (including renewal premiums) and effect payment thereof prior to the
applicable penalty or termination date. For purposes of effecting any such
payment, the Master Servicer shall apply Escrow Payments as allowed under the
terms of the related Mortgage Loan Documents; provided, however, that if the
subject Serviced Mortgage Loan does not require the related Borrower to escrow
for the payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and similar items, the Master Servicer and the Special
Servicer each shall, as to those Serviced Mortgage Loans it is obligated to
service hereunder, and subject to and in accordance with the Servicing Standard,
enforce the requirement of the related Mortgage that the Borrower make payments
in respect of such items at the time they first become due.
(c) In accordance with the Servicing Standard, the Master
Servicer shall, as to all the Serviced Mortgage Loans (including all the
Specially Serviced Mortgage Loans, if any), advance with respect to the related
Mortgaged Properties all such funds as are necessary for the purpose of
effecting the timely payment of (i) real estate taxes, assessments and other
similar items, (ii) ground rents or other rents (if applicable), and (iii)
premiums on Insurance Policies (including Environmental Insurance Policies), in
each instance if and to the extent that Escrow Payments (if any) collected from
the related Borrower are insufficient to pay such item when due, and the related
Borrower has failed to pay such item on a timely basis; provided that, in the
case of amounts described in the preceding clause (i), the Master Servicer shall
not make a Servicing Advance of any such amount if the Master Servicer
reasonably anticipates (in accordance with the Servicing Standard) that such
amounts will be paid by the related Borrower on or before the applicable penalty
date, in which case the Master Servicer shall use its best efforts consistent
with the Servicing Standard to confirm whether such amounts have been paid and
shall make a Servicing Advance of such amounts, if necessary, not later than
five Business Days
-107-
following confirmation by the Master Servicer that such amounts have not been,
or are not reasonably likely to be, paid by the applicable penalty date. In no
event shall the Master Servicer be required to make any Servicing Advance under
this Section 3.03(c) to the extent such Advance would, if made, constitute a
Nonrecoverable Servicing Advance. All such Advances shall be reimbursable in the
first instance from related collections from the Borrowers and further as
provided in Section 3.05(a). No costs incurred by the Master Servicer or the
Special Servicer in effecting the payment of real estate taxes, assessments and
similar items and, if applicable, ground rents on or in respect of such
Mortgaged Properties shall, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to the unpaid principal balances
of the related Serviced Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit; provided, however, that this provision is in no way
intended to affect amounts actually due and owing from the related Borrower
under any such Mortgage Loan.
(d) The Master Servicer shall establish and maintain one
or more accounts (the "Reserve Accounts"), in which all Reserve Funds, if any,
received by it with respect to the Serviced Mortgage Loans shall be deposited
and retained. Subject to any terms of the related Mortgage Loan Documents that
specify the nature of the account in which Reserve Funds shall be held, each
Reserve Account shall be an Eligible Account. As and to the extent consistent
with the Servicing Standard, applicable law and the related Mortgage Loan
Documents, the Master Servicer may make withdrawals from the Reserve Accounts,
and may apply Reserve Funds held therein with respect to any Serviced Mortgage
Loan (together with interest and other income earned thereon), only as follows:
(i) in the case of Reserve Funds that are intended to cover specific costs and
expenses, to pay for, or to reimburse the related Borrower in connection with,
the costs associated with the related tenant improvements, leasing commissions,
repairs, replacements, capital improvements, environmental testing and
remediation, litigation and/or other special expenses at or with respect to the
related Mortgaged Property for which such Reserve Funds were intended and to
refund the related Borrower any sums as may be determined to be overages; (ii)
in the case of Reserve Funds intended to cover debt service payments, to apply
amounts on deposit therein in respect of principal and interest on such Mortgage
Loan; (iii) to reimburse the Master Servicer, the Special Servicer, the Trustee
or any Fiscal Agent, as applicable, for any unreimbursed Advances made thereby
with respect to such Mortgage Loan to cover any of the items described in the
immediately preceding clauses (i) and (ii); (iv) to release such Reserve Funds
to the related Borrower if the conditions precedent for such release are
satisfied or, in the case of Earn-Out Reserve Funds, to otherwise apply such
Reserve Funds in accordance with the related Mortgage Loan Documents if the
conditions precedent for such release are not satisfied, including any
requirements set forth in this Agreement; (v) to pay interest or other income,
if required and as described below, to the related Borrower on balances in the
Reserve Account (or, if and to the extent not payable to the related Borrower,
to pay such interest or other income (up to the amount of any Net Investment
Earnings in respect of such Reserve Account for each Collection Period) to the
Master Servicer); (vi) after an event of default, to pay the principal of,
accrued interest on and any other amounts payable with respect to such Mortgage
Loan; or (vii) to clear and terminate the Reserve Account at the termination of
this Agreement in accordance with Section 9.01. If the Borrower under any
Serviced Mortgage Loan delivers a Letter of Credit in lieu of Reserve Funds,
then the Master Servicer shall make draws on such Letter of Credit at such times
and for such purposes as it would have made withdrawals from a Reserve Account
and, to the extent consistent with the Servicing Standard, applicable law and
the related Mortgage Loan Documents, in order to convert the amount of such
Letter of Credit into Reserve Funds. Notwithstanding the foregoing, the Master
Servicer shall not release any Earn-Out Reserve Funds, or return any related
Letter of Credit delivered in lieu of Earn-Out Reserve Funds, to the related
Borrower,
-108-
unless and until: (i) the Master Servicer has so notified the Special Servicer
in writing and has provided the Special Servicer with any written or electronic
information in the Master Servicer's possession regarding the subject Serviced
Mortgage Loan or the related Mortgaged Property that the Special Servicer may
reasonably request within ten Business Days of receiving such written notice;
and (ii) subject to Section 3.24, the Special Servicer has consented to such
release of any such Earn-Out Reserve Funds or return of any related Letter of
Credit (such consent to be given or withheld in accordance with the Servicing
Standard and to be deemed given if the Special Servicer does not object in
writing to such release of any such Earn-Out Reserve Funds or return of any such
Letter of Credit within ten Business Days after receiving such additional
information from the Master Servicer (or, if it did not request additional
information, within ten Business Days after receiving such notice)). The Master
Servicer shall pay or cause to be paid to the relevant Borrowers interest and
other income, if any, earned on the investment of funds in Reserve Accounts
maintained thereby, if and to the extent required by law or the terms of the
related Mortgage Loan Documents. If the Master Servicer shall deposit in a
Reserve Account any amount not required to be deposited therein, it may at any
time withdraw such amount from such Reserve Account, any provision herein to the
contrary notwithstanding. Promptly after any Reserve Funds are received by the
Special Servicer from any Borrower, and in any event within two Business Days of
such receipt, the Special Servicer shall remit such Reserve Funds to the Master
Servicer for deposit in the applicable Reserve Account(s). Any out-of-pocket
expenses, including reasonable attorneys' fees and expenses, incurred by the
Master Servicer or Special Servicer to enable the Master Servicer or Special
Servicer, as the case may be, to make any draw under any Letter of Credit shall
constitute a Servicing Advance, and the Master Servicer or Special Servicer, as
the case may be, shall make reasonable efforts to recover such expenses from the
related Borrower to the extent the Borrower is required to pay such expenses
under the terms of the related Serviced Mortgage Loan.
(e) To the extent an operations and maintenance plan is
required to be established and executed with respect to any Serviced Mortgage
Loan pursuant to the terms of the related Mortgage Loan Documents, the Master
Servicer shall request from the related Borrower written confirmation thereof
within a reasonable time after the later of the Closing Date and the date as of
which such plan is required to be established or completed. To the extent any
other action or remediation relating to environmental matters is required to
have been taken or completed with respect to any Serviced Mortgage Loan pursuant
to the terms of the related Mortgage Loan Documents, the Master Servicer shall
request from the related Borrower written confirmation of such action and
remediations within a reasonable time after the later of the Closing Date and
the date as of which such action or remediations are required to have been taken
or completed. To the extent that a Borrower shall fail to promptly respond to
any inquiry described in this Section 3.03(e), the Master Servicer shall notify
the Trustee, the Special Servicer and the Controlling Class Representative. The
Master Servicer shall promptly notify the Trustee, the Special Servicer and the
Controlling Class Representative if the Master Servicer shall determine that the
Borrower under any Serviced Mortgage Loan has failed to perform its obligations
under the related Mortgage Loan Documents in respect of environmental matters.
(f) Subject to applicable law and the terms of the
related Mortgage Loan Documents, funds in the Servicing Accounts and the Reserve
Accounts may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06.
-109-
SECTION 3.04. Collection Account, Distribution Account,
Interest Reserve Account and Excess
Liquidation Proceeds Account.
(a) The Master Servicer shall segregate and hold all
funds collected and received by it in connection with the Mortgage Pool separate
and apart from its own funds and general assets. In connection therewith, the
Master Servicer shall establish and maintain one or more segregated accounts
(collectively, the "Collection Account"), in which the funds described below are
to be deposited and held on behalf of the Trustee in trust for the benefit of
the Certificateholders. Each account that constitutes the Collection Account
shall be an Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the Collection Account, within one Business Day of receipt by it
(in the case of payments by Borrowers or other collections on the Serviced
Mortgage Loans) or as otherwise required hereunder, the following payments and
collections received or made by or on behalf of the Master Servicer in respect
of the Mortgage Pool subsequent to the Closing Date (other than in respect of
scheduled payments of principal and interest due and payable on the Mortgage
Loans on or before the Cut-off Date, which payments shall be delivered promptly
to the related Mortgage Loan Seller or its designee, with negotiable instruments
endorsed as necessary and appropriate without recourse):
(i) all payments, from whatever source, or
transfers from a debt service reserve account, on account of principal
of the Serviced Mortgage Loans, including Principal Prepayments;
(ii) all payments, from whatever source, or
transfers from a debt service reserve account, on account of interest
on the Serviced Mortgage Loans, including Default Interest and Post-ARD
Additional Interest;
(iii) all Prepayment Premiums and late payment
charges received in respect of the Serviced Mortgage Loans;
(iv) all Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received in respect of the Serviced
Mortgage Loans and all Liquidation Proceeds of the type described in
clauses (iv) through (vi) and clause (viii) of the definition of
"Liquidation Proceeds" received in respect of the [Separately Serviced
Mortgage Loan];
(v) all remittances to the Trust under a
[Separately Serviced Mortgage Loan] Servicing Agreement with respect to
the [Separately Serviced Mortgage Loan] or any [Separately Serviced
Mortgage Loan] REO Property;
(vi) any amounts required to be deposited by the
Master Servicer pursuant to Section 3.06 in connection with losses
incurred with respect to Permitted Investments of funds held in the
Collection Account;
(vii) any amounts required to be deposited by the
Master Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a blanket
or master forced place hazard policy with respect to the Serviced
Mortgage Loans;
-110-
(viii) any amounts required to be transferred to
the Collection Account from (A) any REO Account pursuant to Section
3.16(c) or (B) any [Separately Serviced Mortgage Loan] Custodial
Account pursuant to Section 12.04(b); and
(ix) insofar as they do not constitute Escrow
Payments, any amounts paid by the Borrower under any Serviced Mortgage
Loan specifically to cover items for which a Servicing Advance has been
made.
The foregoing requirements for deposit in the Collection
Account shall be exclusive. Without limiting the generality of the foregoing,
(A) actual payments from Borrowers under the Serviced Mortgage Loans in the
nature of Escrow Payments, assumption fees, assumption application fees,
earn-out fees, extension fees, modification fees, charges for beneficiary
statements or demands, amounts collected for checks returned for insufficient
funds and other fees and amounts collected from Borrowers under the Serviced
Mortgage Loans that constitute Additional Master Servicing Compensation and/or
Additional Special Servicing Compensation need not be deposited by the Master
Servicer in the Collection Account, and (B) any amount representing a
sub-servicing fee that otherwise would be required to be deposited by the Master
Servicer in the Collection Account and that, once so deposited, would have been
permitted to be withdrawn immediately from the Collection Account, pursuant to
Section 3.05 as part of the payment of the Master Servicing Fee, shall be deemed
to have been deposited to and withdrawn from the Collection Account for such
purpose to the extent that such sum has been retained by the Sub-Servicer
pursuant to the related Sub-Servicing Agreement. The Master Servicer shall
promptly within one Business Day deliver to the Special Servicer any of the
foregoing items received by it with respect to any Serviced Mortgage Loan, if
and to the extent that such items constitute Additional Special Servicing
Compensation. If the Master Servicer shall deposit in the Collection Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Collection Account, any provision herein to the contrary
notwithstanding.
Upon receipt of any of the amounts described in clauses (i)
through (v), (vii) and (ix) of the first paragraph of this Section 3.04(a) with
respect to any Mortgage Loan, the Special Servicer shall promptly, but in no
event later than one Business Day after receipt, remit such amounts to the
Master Servicer for deposit into the Collection Account (together with
sufficient information to properly allocate such amount to the appropriate
Mortgage Loan), unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item should not be deposited because of a
restrictive endorsement. With respect to any such amounts paid by check to the
order of the Special Servicer, the Special Servicer shall endorse such check to
the order of the Master Servicer (in its capacity as such), without recourse,
representation or warranty, 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. Any such amounts received by the
Special Servicer with respect to any Administered REO Property shall be
deposited by the Special Servicer into the REO Account and remitted to the
Master Servicer for deposit into the Collection Account (together with
sufficient information to properly allocate such amount to the appropriate REO
Property).
(b) The Trustee shall establish and maintain one or more
segregated accounts (collectively, the "Distribution Account"), to be held in
trust for the benefit of the Certificateholders. Each account that constitutes
the Distribution Account shall be an Eligible Account. The Trustee shall, as a
bookkeeping matter, establish and maintain two sub-accounts of the Distribution
Account (i) one of which sub-accounts (such sub-account, the "REMIC
Sub-Account") shall be deemed to be held in trust
-111-
for the benefit of the Holders of the REMIC III Regular Interest Certificates
and the Class R Certificates and (ii) one of which sub-accounts (such
sub-account, the "Class Y Sub-Account") shall be deemed to be held in trust for
the benefit of the Holders of the Class Y Certificates. By 1:00 p.m. (New York
City time) on each Master Servicer Remittance Date, the Master Servicer shall
deliver to the Trustee, for deposit in the Distribution Account, an aggregate
amount of immediately available funds equal to the Master Servicer Remittance
Amount for such Master Servicer Remittance Date. Immediately upon deposit of the
Master Servicer Remittance Amount for any Master Servicer Remittance Date into
the Distribution Account, any portion thereof that represents any Post-ARD
Additional Interest related to the ARD Mortgage Loans shall be deemed to have
been deposited into the Class Y Sub-Account, and the remaining portion thereof
shall be deemed to have been deposited into the REMIC Sub-Account. In addition,
the Master Servicer shall, as and when required hereunder, deliver to the
Trustee for deposit in the Distribution Account any P&I Advances and
Compensating Interest Payments required to be made by the Master Servicer
hereunder with respect to the Mortgage Pool. Furthermore, any amounts paid by
any party hereto to indemnify the Trust Fund pursuant to any provision hereof
shall be delivered to the Trustee for deposit in the Distribution Account. The
Trustee shall, upon receipt, deposit in the Distribution Account any and all
amounts received or, pursuant to Section 4.03, advanced by the Trustee or any
Fiscal Agent that are required by the terms of this Agreement to be deposited
therein. As and when required pursuant to Section 3.05(c), the Trustee shall
transfer Interest Reserve Amounts in respect of the Interest Reserve Loans from
the Interest Reserve Account to the Distribution Account. Furthermore, as and
when required pursuant to Section 3.05(d), the Trustee shall transfer monies
from the Excess Liquidation Proceeds Account to the Distribution Account. The
Trustee shall also deposit in the Distribution Account from its own funds any
amounts required to be deposited by the Trustee pursuant to Section 3.06 in
connection with losses incurred with respect to Permitted Investments of funds
held in the Distribution Account. If the Trustee shall deposit in the
Distribution Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Distribution Account, any provision
herein to the contrary notwithstanding.
(c) The Trustee shall establish and maintain one or more
accounts (collectively, the "Interest Reserve Account") to be held in trust for
the benefit of the Certificateholders. Each account that constitutes the
Interest Reserve Account shall be an Eligible Account. On the Distribution Date
in January (except during a leap year) and February of each calendar year,
commencing in ____, prior to any distributions being made in respect of the
Certificates on such Distribution Date, the Trustee shall, with respect to each
Interest Reserve Loan, withdraw from the Distribution Account and deposit in the
Interest Reserve Account an amount equal to the Interest Reserve Amount, if any,
in respect of such Interest Reserve Loan for such Distribution Date; provided
that no such transfer of monies from the Distribution Account to the Interest
Reserve Account shall be made on the Final Distribution Date. The Trustee shall
also deposit in the Interest Reserve Account from its own funds any amounts
required to be deposited by the Trustee pursuant to Section 3.06 in connection
with losses incurred with respect to Permitted Investments of funds held in the
Interest Reserve Account.
(d) Upon or prior to the receipt of any Excess
Liquidation Proceeds in connection with the liquidation of any defaulted
Serviced Mortgage Loan or Administered REO Property, 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 Collection Account
and shall deposit, or shall deliver to the Trustee to deposit, into the Excess
Liquidation Proceeds Account all
-112-
Excess Liquidation Proceeds received during the Collection Period ending on the
Determination Date immediately prior to such Master Servicer Remittance Date.
The Trustee shall also deposit in the Excess Liquidation Proceeds Account from
its own funds any amounts required to be deposited by the Trustee pursuant to
Section 3.06 in connection with losses incurred with respect to Permitted
Investments of funds held in the Excess Liquidation Proceeds Account.
(e) Funds in the Collection Account, the Distribution
Account, the Interest Reserve Account and the Excess Liquidation Proceeds
Account may be invested in Permitted Investments in accordance with the
provisions of Section 3.06. The Master Servicer shall give notice to the other
parties hereto of the location of the Collection Account as of the Closing Date
and of the new location of the Collection Account prior to any change thereof.
The Distribution Account, Interest Reserve Account and Excess Liquidation
Proceeds Account shall initially be held at the Corporate Trust Office of the
Trustee, and the Trustee shall give notice to the other parties hereto of the
new location of each of the Distribution Account, Interest Reserve Account and
Excess Liquidation Proceeds Account prior to any change thereof.
(f) Notwithstanding the foregoing or any other provision
to the contrary in this Agreement, the Trustee may maintain the Distribution
Account, the Interest Reserve Account and the Excess Liquidation Proceeds
Account as three separate subaccounts of a single Eligible Account; provided
that: (i) all deposits into and withdrawals from such single Eligible Account
shall be made in the same manner as would be the case if the Distribution
Account, the Interest Reserve Account and the Excess Liquidation Proceeds
Account were maintained as three separate accounts; (ii) all distributions on
the Certificates will be calculated and made in the same manner as would be the
case if the Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account were maintained as three separate accounts; (iii)
the Trustee shall make debits and credits to those three subaccounts in a manner
consistent with the provisions of this Agreement governing transfers of funds
between the Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account, as the case may be; (iv) the Trustee's maintaining
the Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account as three separate subaccounts of a single Eligible
Account (as opposed to in the form of three separate Eligible Accounts) shall
not materially and adversely affect any of the Certificateholders; and (v) such
single Eligible Account shall be entitled "__________. [or name of any successor
trustee], as trustee, in trust for the registered holders of Citigroup
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series __________, Distribution Account, Interest Reserve Account
and Excess Liquidation Proceeds Account".
SECTION 3.05. Permitted Withdrawals From the Collection
Account, the Distribution Account, the
Interest Reserve Account and the Excess
Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make
withdrawals from the Collection Account for any of the following purposes (the
order set forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Trustee for deposit in the
Distribution Account the Master Servicer Remittance Amount for each
Master Servicer Remittance Date and any amounts that
-113-
may be applied to make P&I Advances with respect to the Mortgage Pool
pursuant to Section 4.03(a);
(ii) to reimburse any Fiscal Agent, the Trustee
or itself, in that order, for xxxxxxxxxxxx X&X Advances made by that
Person (in each case, with its own funds) hereunder with respect to the
Mortgage Pool, any Fiscal Agent's, the Trustee's and the 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, however, to amounts that represent Late Collections of
interest and principal received in respect of the particular Mortgage
Loan or REO Loan as to which such P&I Advance was made (net of related
Master Servicing Fees);
(iii) to pay to itself earned and unpaid Master
Servicing Fees with respect to each Mortgage Loan and REO Loan to but
not including the latest Due Date for such Mortgage Loan or REO Loan,
as the case may be, the Master Servicer's rights to payment pursuant to
this clause (iii) with respect to any particular Mortgage Loan or
successor REO Loan being limited, however, to amounts received on or in
respect of such Mortgage Loan (whether in the form of payments,
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds) or
successor REO Loan (whether in the form of REO Revenues, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds) that are
allocable as interest thereon;
(iv) to pay to the Special Servicer, out of such
general collections on the Mortgage Loans and any REO Properties as are
then on deposit in the Collection Account, earned and unpaid Special
Servicing Fees with respect to each Specially Serviced Mortgage Loan
and each REO Loan that relates to an Administered REO Property to but
not including the latest Due Date for such Specially Serviced Mortgage
Loan or REO Loan, as the case may be;
(v) to pay the Special Servicer (or, if
applicable, any predecessor thereto) earned and unpaid Workout Fees and
Liquidation Fees to which it is entitled with respect to any Serviced
Mortgage Loan or Administered REO Property pursuant to, and from the
sources contemplated by, the second and third paragraphs of Section
3.11(c);
(vi) to reimburse any Fiscal Agent, the Trustee,
itself or the Special Servicer, in that order, for any unreimbursed
Servicing Advances made by that Person (in each case, with its own
funds) hereunder with respect to any Mortgage Loan or REO Property, any
Fiscal Agent's, the Trustee's, the Master Servicer's and the Special
Servicer's, as the case may be, respective rights to reimbursement
pursuant to this clause (vi) with respect to any such Servicing Advance
being limited, however, to (A) payments made by the related Borrower
that are allocable to cover the item in respect of which such Servicing
Advance was made, and (B) Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds and, if applicable, REO Revenues received in
respect of the particular Mortgage Loan or REO Property as to which
such Servicing Advance was made;
(vii) to reimburse any Fiscal Agent, the Trustee,
itself or the Special Servicer, in that order, out of such general
collections on the Mortgage Loans and any REO Properties as are then on
deposit in the Collection Account, for any unreimbursed Advances made
by that Person (in each case, with its own funds) hereunder that have
been determined to be Nonrecoverable Advances;
-114-
(viii) to pay itself, the Special Servicer, the
Trustee or any Fiscal Agent, as applicable, any unpaid Advance Interest
accrued on Advances made by such Person, such payment to be made, as
and to the extent contemplated by Section 1.04, out of Default Charges
collected on the Mortgage Loan or REO Loan, as the case may be, as to
which the subject Advance was made;
(ix) to the extent that the Master Servicer has
reimbursed or is reimbursing any Fiscal Agent, the Trustee, itself or
the Special Servicer, as applicable, for any unreimbursed Advance
(regardless of whether such reimbursement is pursuant to clause (ii),
(vi) or (vii) above or pursuant to Section 3.03(c) or Section 3.03(d)),
and insofar as payment has not already been made out of related Default
Charges, and the related Default Charges then on deposit in the
Collection Account are not sufficient to make such payment, pursuant to
clause (viii) above, to pay itself, the Special Servicer, the Trustee
or such Fiscal Agent, as the case may be, first out of the remaining
Liquidation Proceeds, Insurance Proceeds and/or Condemnation Proceeds,
if any, from the Mortgage Loan to which the Advance relates, and then
out of such general collections on the Mortgage Loans and any REO
Properties as are then on deposit in the Collection Account, any
related Advance Interest accrued and payable on the portion of such
Advance so reimbursed or being reimbursed;
(x) to pay (A) any outstanding expenses that
were incurred by the Special Servicer in connection with its
inspecting, pursuant to Section 3.12(a), any Mortgaged Property
securing a Specially Serviced Mortgage Loan or any Administered REO
Property or (B) any other outstanding expenses incurred on behalf of
the Trust with respect to any Mortgage Loan or REO Property (other than
Advance Interest, which is covered by clause (viii) above, and other
than Special Servicing Fees, Workout Fees and Liquidation Fees) that
will likely otherwise become Additional Trust Fund Expenses, such
payment to be made, as and to the extent contemplated by Section 1.04,
out of Default Charges collected on the related Mortgage Loan or REO
Loan, as the case may be, and then from Liquidation Proceeds, Insurance
Proceeds and/or Condemnation Proceeds, if any, from the related
Mortgage Loan or REO Loan;
(xi) to pay itself any items of Additional Master
Servicing Compensation, and to pay the Special Servicer any items of
Additional Special Servicing Compensation, in each case on deposit in
the Collection Account from time to time;
(xii) to pay any unpaid Liquidation Expenses
incurred with respect to any Serviced Mortgage Loan or Administered REO
Property, such payments to be made, first, out of Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and, if applicable, REO
Revenues received in respect of such Serviced Mortgage Loan or
Administered REO Property, as the case may be, and then, out of such
general collections on other Mortgage Loans and REO Properties as are
then on deposit in the Collection Account;
(xiii) to pay, in accordance with Section 3.11(i),
out of such general collections on the Mortgage Loans and any REO
Properties as are then on deposit in the Collection Account, certain
servicing expenses that would, if advanced, constitute Nonrecoverable
Servicing Advances;
(xiv) to pay, out of such general collections on
the Mortgage Loans and any REO Properties as are then on deposit in the
Collection Account, for costs and expenses incurred
-115-
by the Trust Fund pursuant to Section 3.09(c) (other than those costs
that are, as expressly set forth in Section 3.09(c), to be covered by,
and reimbursable as, a Servicing Advance);
(xv) to pay itself, the Special Servicer, the
Depositor, the Trustee, any Fiscal Agent, or any of their respective
directors, officers, members, managers, employees and agents, as the
case may be, out of such general collections on the Mortgage Loans and
any REO Properties as are then on deposit in the Collection Account,
any expenses, reimbursements or indemnities payable to any such Person
pursuant to Section 6.03, Section 7.01(b), Section 8.05(b), or Section
8.13, as applicable;
(xvi) to pay, out of such general collections on
the Mortgage Loans and any REO Properties as are then on deposit in the
Collection Account, for the cost of recording this Agreement in
accordance with Section 11.02(a);
(xvii) to pay, out of such general collections on
the Mortgage Loans and any REO Properties as are then on deposit in the
Collection Account, to the [Separately Serviced Mortgage Loan] Master
Servicer, the holder of the [Separately Serviced Mortgage Loan] Pari
Passu Companion Loan or the holder of the [Separately Serviced Mortgage
Loan] Subordinate Companion Loan, any amount payable or reimbursable to
such party pursuant to the terms of either of the [Separately Serviced
Mortgage Loan] Intercreditor Agreements;
(xviii) to pay, out of such general collections on
the Mortgage Loans and any REO Properties as are then on deposit in the
Collection Account, for (A) any fees earned and/or expenses (including
the reasonable fees of tax accountants and attorneys) incurred by the
Trustee pursuant to Section 3.17(a)(iii) in connection with providing
advice to the Special Servicer, (B) any reasonable expense (including
reasonable attorneys' fees and disbursements) that the Special Servicer
incurs pursuant to its assuming the defense of the Controlling Class
Representative in accordance with Section 3.23(e) and (C) any fee
earned by the Master Servicer or the Trustee for making a Fair Value
Determination in respect of any Specially Designated Defaulted Mortgage
Loan pursuant to Section 3.18(b);
(xix) to pay to the Master Servicer, the Special
Servicer, the Trustee, any Fiscal Agent or the Depositor, as the case
may be, any amount specifically required to be paid to such Person out
of the Collection Account under any provision of this Agreement and to
which reference is not made in any other clause of this Section
3.05(a), it being acknowledged that this clause (xix) shall not be
construed to modify any limitation otherwise set forth in this
Agreement on the time at which any Person is entitled to payment or
reimbursement of any amount or the funds from which any such payment or
reimbursement is permitted to be made;
(xx) to pay itself, the Special Servicer, a
Mortgage Loan Seller, a Controlling Class Certificateholder, the Sole
Certificateholder(s) or any other particular Person, as the case may
be, with respect to each Mortgage Loan, if any, previously purchased or
otherwise removed from the Trust Fund by such Person(s) pursuant to or
as contemplated by this Agreement, all amounts received thereon
subsequent to the date of purchase or other removal;
(xxi) to transfer any Excess Liquidation Proceeds
on deposit in such Collection Account to the Excess Liquidation
Proceeds Account in accordance with Section 3.04(d); and
-116-
(xxii) to clear and terminate the Collection
Account at the termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Collection Account at any
particular time (after withdrawing any portion of such amounts deposited in the
Collection Account in error) are insufficient to satisfy all payments,
reimbursements and remittances to be made therefrom as set forth in clauses (ii)
through (xxi) above, then the corresponding withdrawals from the Collection
Account shall be made in the following priority and subject to the following
rules: (A) if the payment, reimbursement or remittance is to be made from a
specific source of funds, then such payment, reimbursement or remittance shall
be made from that specific source of funds on a pro rata basis with any and all
other payments, reimbursements and remittances to be made from such specific
source of funds, provided that where, as in clauses (ii) and (vi), an order of
priority is set forth to govern the application of funds withdrawn from the
Collection Account pursuant to such clauses, payments, reimbursements or
remittances pursuant to any such clause shall be made in such order of priority
to the extent of available funds; and (B) if the payment, reimbursement or
remittance can be made from any funds on deposit in the Collection Account, then
(following any withdrawals made from the Collection Account in accordance with
the immediately preceding clause (A) above) such payment, reimbursement or
remittance shall be made from the general funds remaining on deposit in the
Collection Account on a pro rata basis with any and all other payments,
reimbursements or remittances to be made from such general funds, provided that
where, as in clause (vii), an order of priority is set forth to govern the
application of funds withdrawn from the Collection Account pursuant to such
clause, payments, reimbursements or remittances pursuant to such clause shall be
made in such order of priority to the extent of available funds.
The Master Servicer shall keep and maintain separate
accounting records, on a loan-by-loan and property-by-property basis when
appropriate, in connection with any withdrawal from the Collection Account
pursuant to any of clauses (ii) through (xxi) above.
The Master Servicer shall pay to the Special Servicer from the
Collection Account on each Master Servicer Remittance Date amounts permitted to
be paid to the Special Servicer therefrom based upon an Officer's Certificate
received from the Special Servicer on the first Business Day following the
immediately preceding Determination Date, describing the item and amount to
which the Special Servicer is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and Administered REO
Property, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request thereby for withdrawal from a Collection Account.
(b) The Trustee shall, from time to time, make
withdrawals from the Distribution Account for each of the following purposes, to
the extent not previously paid (the order set forth below not constituting an
order of priority for such withdrawals):
(i) to make distributions to Certificateholders
on each Distribution Date pursuant to Section 4.01;
(ii) to pay itself, pursuant to Section 8.05(a),
the Trustee's Fee for each Distribution Date;
-117-
(iii) to pay itself, any Fiscal Agent or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, any amounts payable or reimbursable to any
such Person pursuant to Sections 8.05(b) and/or 8.13(a);
(iv) to pay for the cost of the Opinions of
Counsel sought by the Trustee 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;
(v) to pay any and all federal, state and local
taxes imposed on the Trust or on the assets or transactions of the
Trust, together with all incidental costs and expenses, and any and all
expenses relating to tax audits, if and to the extent that either (A)
none of the parties hereto are liable therefor pursuant to Section
10.01(b) and/or Section 10.01(f) or (B) any such Person that may be so
liable has failed to timely make the required payment;
(vi) to pay itself interest or other income
earned on deposits in the Distribution Account, in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings,
if any, with respect to the Distribution Account for each Collection
Period);
(vii) to transfer Interest Reserve Amounts in
respect of the Interest Reserve 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.
(c) On the Master Servicer Remittance Date in March of
each year (commencing in March ____), and in any event on the Master Servicer
Remittance Date that occurs in the same calendar month as the Final Distribution
Date, the Trustee shall withdraw from the Interest Reserve Account and deposit
in the Distribution Account all Interest Reserve Amounts in respect of the
Interest Reserve Loans then on deposit in the Interest Reserve Account. In
addition, the Trustee shall, from time to time, make withdrawals from the
Interest Reserve Account to pay itself interest or other income earned on
deposits in the Interest Reserve Account, in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with respect to
the Interest Reserve Account for each Collection Period).
(d) On each Distribution Date, prior to 11:00 a.m. New
York City time, the Trustee shall withdraw from the Excess Liquidation Proceeds
Account and deposit in the Distribution Account, for distribution on such
Distribution Date pursuant to Section 4.01, an amount equal to the lesser of (i)
the entire amount, if any, then on deposit in the Excess Liquidation Proceeds
Account and (ii) the excess, if any, of the aggregate amount distributable on
such Distribution Date pursuant to Sections 4.01(a) and 4.01(b), over the
Standard Available Distribution Amount for such Distribution Date (calculated
without regard to such transfer from the Excess Liquidation Proceeds Account to
the Distribution Account); provided that on the Final Distribution Date, prior
to 11:00 a.m. New York City time, the Trustee shall withdraw from the Excess
Liquidation Proceeds Account and deposit in the Distribution Account, for
distribution on such Distribution Date pursuant to Section 4.01, any and all
amounts then on deposit in the Excess Liquidation Proceeds Account. In addition,
the Trustee shall, from time to time, make withdrawals from the Excess
Liquidation Proceeds Account to pay itself interest or other income earned on
deposits in the Excess Liquidation Proceeds Account, in accordance
-118-
with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to the Excess Liquidation Proceeds Account for each Collection
Period).
(e) The Trustee, any Fiscal Agent, the Depositor, the
Master Servicer and the Special Servicer, as applicable, shall in all cases have
a right prior to the Certificateholders to any particular funds on deposit in
the Collection Account and the Distribution Account from time to time for the
reimbursement or payment of compensation, Advances (with interest thereon at the
Reimbursement Rate) and their respective expenses hereunder, but only if and to
the extent such compensation, Advances (with interest) and expenses are to be
reimbursed or paid from such particular funds on deposit in the Collection
Account or the Distribution Account pursuant to the express terms of this
Agreement.
SECTION 3.06. Investment of Funds in the Collection
Account, the Servicing Accounts, the Reserve
Accounts and the REO Account.
(a) The Master Servicer may direct (pursuant to a
standing order or otherwise) any depository institution (including the Trustee)
maintaining the Collection Account or any Servicing Account or Reserve Account
held by it, the Special Servicer may direct (pursuant to a standing order or
otherwise) any depository institution (including the Trustee) maintaining the
REO Account, and the Trustee may direct (pursuant to a standing order or
otherwise) any depository institution maintaining the Distribution Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account, to invest,
or if it is such depository institution, may itself invest, the funds held
therein in (but only in) one or more Permitted Investments bearing interest or
sold at a discount, and maturing, unless payable on demand, no later than the
Business Day immediately preceding the next succeeding date on which such funds
are required to be withdrawn from such Account pursuant to this Agreement or the
related Mortgage Loan Documents, as applicable (or with respect to Permitted
Investments of funds held in the Distribution Account, no later than 12:00 noon
(New York City time) on the next succeeding Distribution Date); provided that
any such investment of funds in any Servicing Account or Reserve Account shall
be subject to applicable law and the terms of the related Mortgage Loan
Documents; and provided, further, that the funds in any Account shall remain
uninvested unless and until the Master Servicer, the Special Servicer or the
Trustee, as applicable, gives timely investment instructions with respect
thereto pursuant to this Section 3.06. All such Permitted Investments shall be
held to maturity, unless payable on demand. Any investment of funds in an
Account shall be made in the name of the Trustee (in its capacity as such). The
Master Servicer (with respect to Permitted Investments of amounts in the
Collection Account, the Servicing Accounts and the Reserve Accounts) and the
Special Servicer (with respect to Permitted Investments of amounts in the REO
Account), acting on behalf of the Trustee shall (and the Trustee hereby
designates the Master Servicer or the Special Servicer, as applicable, as the
Person that shall), and the Trustee (with respect to Permitted Investments of
amounts in the Distribution Account, the Interest Reserve Account or the Excess
Liquidation Proceeds Account), acting on behalf of itself, shall, (i) be the
"entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security", "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 to such terms in Revised Article 9 (1998 Revision)
of the UCC, and (ii) "control" of any Permitted Investment by the Master
Servicer or the Special Servicer
-119-
shall constitute "control" by a Person designated by, and acting on behalf of,
the Trustee for purposes of Revised Article 8 (1994 Revision) of the UCC or
Revised Article 9 (1998 Revision) of the UCC, as applicable. If amounts on
deposit in an Account are at any time invested in a Permitted Investment payable
on demand, the Master Servicer (in the case of the Collection Account or any
Servicing Account or Reserve Account), or the Special Servicer (in the case of
the REO Account) or the Trustee (in the case of the Distribution Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account) shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on
the last day such Permitted Investment may otherwise
mature hereunder in an amount at least equal to the
lesser of (1) all amounts then payable thereunder and
(2) the amount required to be withdrawn on such date;
and
(y) demand payment of all amounts due thereunder promptly
upon determination by the Master Servicer, the
Special Servicer or the Trustee, as the case may be,
that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter
on deposit in the Account.
(b) Whether or not the Master Servicer directs the
investment of funds in the Collection Account, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for such Account for each Collection Period, shall be for the
sole and exclusive benefit of the Master Servicer and shall be subject to its
withdrawal in accordance with Section 3.05(a). Whether or not the Master
Servicer directs the investment of funds in any Servicing Account or Reserve
Account, interest and investment income realized on funds deposited therein, to
the extent of the Net Investment Earnings, if any, for such Account for each
Collection Period and, further, if and to the extent not required to be paid to
the related Borrower pursuant to applicable law or the terms of the related
Mortgage Loan Documents, shall be for the sole and exclusive benefit of the
Master Servicer and shall be subject to withdrawal from time to time in
accordance with Section 3.03. Whether or not the Special Servicer directs the
investment of funds in the REO Account, interest and investment income realized
on funds deposited therein, to the extent of the Net Investment Earnings, if
any, for such 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). Whether or not the Trustee directs the
investment of funds in the Distribution Account, the Interest Reserve Account or
the Excess Liquidation Proceeds Account, interest and investment income realized
on funds deposited therein, to the extent of the Net Investment Earnings, if
any, for such Account for each Collection Period, shall be for the sole and
exclusive benefit of the Trustee and shall be subject to its withdrawal in
accordance with Section 3.05(b). If any loss shall be incurred in respect of any
Permitted Investment on deposit in any Account (other than a loss of what would
otherwise have constituted investment earnings and, in the case of a Servicing
Account or Reserve Account, other than a loss of an investment made for the
benefit of the related Borrower, which is either invested at the direction of
the related Borrower or as required under the related Mortgage Loan Documents),
the Master Servicer (in the case of the Collection Account and any Servicing
Account or Reserve Account), the Special Servicer (in the case of the REO
Account) and the Trustee (in the case of the Distribution Account, the Interest
Reserve Account or the Excess Liquidation Proceeds Account) shall promptly
deposit therein from its own funds, without right of reimbursement, no later
than the end of the Collection Period during which such loss was incurred, the
amount of the Net Investment Loss, if any, in respect of such Account for such
Collection Period (or, in the case of a Servicing Account or Reserve Account,
the entire amount of such loss).
-120-
(c) Except as otherwise expressly provided in this
Agreement, if any default occurs in the making of any payment due under any
Permitted Investment of funds in any Account, or if a default occurs in any
other performance required under any Permitted Investment of funds in any
Account, and the Master Servicer or the Special Servicer, as applicable, has not
taken such action, then the Trustee may (and, subject to Section 8.02, upon the
request of (i) Holders of Certificates entitled to not less than 25% of the
Voting Rights allocated to any Class of REMIC III Regular Interest Certificates
or (ii) the Controlling Class Representative, the Trustee shall) take such
action as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate legal proceedings. Any costs
incurred by the Trustee in taking any such action shall be reimbursed to it by
the party hereunder that maintains such Account (or, if it is the Trustee that
maintains such Account, shall be borne by the Trustee). This provision is in no
way intended to limit any actions that the Master Servicer or the Special
Servicer may take in this regard at its own expense.
(d) Notwithstanding the investment of funds held in any
Account, for purposes of the calculations hereunder, including the calculation
of the Standard Available Distribution Amount and the Master Servicer Remittance
Amount, the amounts so invested shall be deemed to remain on deposit in such
Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors
and Omissions and Fidelity Coverage.
(a) In the case of each Serviced Mortgage Loan (including
each Specially Serviced Mortgage Loan), the Master Servicer shall use reasonable
efforts consistent with the Servicing Standard to cause the related Borrower to
maintain (and, if such Borrower does not so maintain, the Master Servicer will
itself cause to be maintained) for the related Mortgaged Property all insurance
coverage as is required, subject to applicable law, under the related Mortgage
Loan Documents (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 Serviced Mortgage Loan grants the lender thereunder any
discretion (by way of consent, approval or otherwise) as to the insurance
coverage that the related Borrower is required to maintain, the Master Servicer
shall exercise such discretion in a manner consistent with the Servicing
Standard, with a view towards requiring insurance coverage with respect to the
related Mortgaged Property no less favorable to that in place with respect to
the related Mortgaged Property on the Closing Date and otherwise comparable to
that required under other Serviced Mortgage Loans with express provisions
governing such matters and, in any event, including insurance for property
damage resulting from terrorist and similar acts (either by way of an all-risk
casualty policy with no exclusion for such risks or a separate policy covering
property damage from such risks), as well as business interruption or rental
loss insurance for at least 12 months; and provided, further, that, if and to
the extent that any Serviced Mortgage Loan grants the lender thereunder any
discretion (by way of consent, approval or otherwise) as to the insurance
provider from whom the related Borrower is to obtain the requisite insurance
coverage, the Master Servicer shall require the related Borrower to obtain the
requisite insurance coverage from Qualified Insurers that possess (or whose
obligations are, in any such case, guaranteed or backed in writing by an entity
that possesses) the Required Claims-Paying Ratings; and provided, further, that,
in the case of any Serviced Mortgage Loan, the Master Servicer shall be required
to maintain such insurance coverage upon the related Borrower's failure to do so
only to the extent that (I) such insurance is available at commercially
reasonable rates and the Trustee as mortgagee has an insurable interest
(provided that, subject to the Trustee as mortgagee having an insurable
interest, the Master Servicer shall maintain insurance coverage for property
damage resulting from terrorist or
-121-
similar acts, unless the Borrower's failure to maintain such insurance
constituted an Acceptable Insurance Default), and (II) the payment of premiums
for such insurance either would not constitute a Nonrecoverable Advance or may
be made directly from the Collection Account in accordance with Section 3.11(i).
Subject to Section 3.17(b), the Special Servicer shall also cause to be
maintained for each Administered REO Property no less insurance coverage (to the
extent (I) such insurance is available at commercially reasonable rates (except
in the case of insurance coverage for property damage resulting from terrorist
or similar acts, which coverage the Special Servicer shall maintain unless the
Borrower's failure to maintain such insurance would have constituted an
Acceptable Insurance Default), and (II) the payment of premiums for such
insurance either would not constitute a Nonrecoverable Advance or may be made
directly from the Collection Account in accordance with Section 3.11(i)) than
was previously required of the related Borrower under the related Mortgage Loan
Documents and, at a minimum, (i) hazard insurance with a replacement cost rider
and, unless it would have constituted an Acceptable Insurance Default for the
related Borrower, no exclusion for terrorist or similar acts, (ii) business
interruption or rental loss insurance for at least 12 months, and (iii)
commercial general liability insurance, in each case, in an amount customary for
the type and geographic location of such REO Property and consistent with the
Servicing Standard; provided that all such insurance shall be obtained from
Qualified Insurers that possess (or whose obligations are, in any such case,
guaranteed or backed in writing by an entity that possesses) the Required
Claims-Paying Ratings. All such insurance policies shall contain (if they insure
against loss to property) a "standard" mortgagee clause, with loss payable to
the Master Servicer on behalf of the Trustee (in the case of insurance
maintained in respect of a Serviced Mortgage Loan), or shall name the Trustee as
the insured, with loss payable to the Special Servicer on behalf of the Trustee
(in the case of insurance maintained in respect of an Administered REO
Property), and shall be issued by an insurer authorized under applicable law to
issue such insurance. Any amounts collected by the Master Servicer or Special
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Borrower, in each case in accordance with
the Servicing Standard) shall be deposited in the Collection Account, subject to
withdrawal pursuant to Section 3.05(a), in the case of amounts received in
respect of a Serviced Mortgage Loan, or in the REO Account, subject to
withdrawal pursuant to Section 3.16(c), in the case of amounts received in
respect of an Administered REO Property. Any cost incurred by the Master
Servicer or Special Servicer in maintaining any such insurance 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 Serviced Mortgage Loan, notwithstanding that the terms of
such Mortgage Loan so permit; provided, however, that this sentence shall not
limit the rights of the Master Servicer or Special Servicer on behalf of the
Trust to enforce any obligations of the related Borrower under such Mortgage
Loan. Costs to the Master Servicer or Special Servicer of maintaining insurance
policies pursuant to this Section 3.07 shall be paid by and reimbursable to the
Master Servicer or Special Servicer, as the case may be, as a Servicing Advance.
(b) If the Master Servicer or Special Servicer shall
obtain and maintain, or cause to be obtained and maintained, a blanket policy or
master force placed policy insuring against hazard losses on some or all of the
Serviced Mortgage Loans and/or Administered REO Properties, as applicable, for
which it is responsible, then, to the extent such policy (i) is obtained from a
Qualified Insurer that possesses (or whose obligations are guaranteed or backed
in writing by an entity that possesses) the Required Claims-Paying Ratings, and
(ii) provides protection equivalent to the individual policies otherwise
required under Section 3.07(a), the Master Servicer or Special Servicer, as the
case may be, shall conclusively be deemed to have satisfied its obligation to
cause hazard insurance to be maintained
-122-
on the related Mortgaged Properties or REO Properties, as applicable. Such a
blanket or master force placed policy may contain a deductible clause (not in
excess of a customary amount), in which case the Master Servicer or Special
Servicer, as the case may be, that maintains such policy shall, if there shall
not have been maintained on any Mortgaged Property (other than the [Separately
Serviced Mortgage Loan] Mortgaged Property) or Administered REO Property
thereunder a hazard insurance policy complying with the requirements of Section
3.07(a), and there shall have been one or more losses that would have been
covered by such an individual policy, promptly deposit into the Collection
Account, from its own funds (without right of reimbursement), the amount not
otherwise payable under the blanket or master force placed policy in connection
with such loss or losses because of such deductible clause to the extent that
any such deductible exceeds the deductible limitation that pertained to the
related Mortgage Loan Documents (or, in the absence of any such deductible
limitation, the deductible limitation for an individual policy which is
consistent with the Servicing Standard). Each of the Master Servicer and the
Special Servicer shall prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket or master force placed policy
maintained by it in a timely fashion in accordance with the terms of such
policy.
(c) Within 45 days after the Closing Date, with respect
to each of the Environmentally Insured Mortgage Loans, the Master Servicer shall
notify the insurer under the related Environmental Insurance Policy and take all
other action necessary for the Trustee, on behalf of the Certificateholders, to
be an insured (and for the Master Servicer, on behalf of the Trust, to make
claims) under such Environmental Insurance Policy. In the event that the Master
Servicer has actual knowledge of any event (an "Insured Environmental Event")
giving rise to a claim under any Environmental Insurance Policy in respect of
any Environmentally Insured Mortgage Loan for which the Borrower has not filed a
claim, the Master Servicer shall, in accordance with the terms of such
Environmental Insurance Policy and the Servicing Standard, timely make a claim
thereunder with the appropriate insurer and shall take such other actions in
accordance with the Servicing Standard which are necessary under such
Environmental Insurance Policy in order to realize the full value thereof for
the benefit of the Certificateholders. If any other party hereto has actual
knowledge of an Insured Environmental Event with respect to any Environmentally
Insured Mortgage Loan, such party shall promptly so notify the Master Servicer.
Any legal fees, premiums or other out-of-pocket costs incurred in accordance
with the Servicing Standard in connection with any such claim under an
Environmental Insurance Policy shall be paid by the Master Servicer and shall be
reimbursable to it as a Servicing Advance. With respect to each Environmental
Insurance Policy in respect of an Environmentally Insured Mortgage Loan, the
Master Servicer shall review and familiarize itself with the terms and
conditions relating to enforcement of claims and shall monitor the dates by
which any claim must be made or any action must be taken under such policy in
order to realize the full value thereof for the benefit of the
Certificateholders in the event the Master Servicer has actual knowledge of an
Insured Environmental Event giving rise to a claim under such policy.
The Master Servicer shall 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 action
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 the Master Servicer receives notice of any
termination of any Environmental Insurance Policy with respect to
Environmentally Insured Mortgage Loan, the Master Servicer shall, within five
Business Days after receipt of such notice, notify the Special Servicer, the
-123-
Controlling Class Representative, the Rating Agencies and the Trustee of such
termination in writing. Upon receipt of such notice, the Master Servicer shall
address such termination in accordance with Section 3.07(a) in the same manner
as it would the termination of any other Insurance Policy required under the
related Mortgage Loan Documents. Any legal fees, premiums or other out-of-pocket
costs incurred in accordance with the Servicing Standard in connection with
enforcing the obligations of the Borrower 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.
(d) The Master Servicer and the Special Servicer each
shall at all times during the term of this Agreement keep in force with
Qualified Insurers that possess (or whose obligations are, in any such case,
guaranteed or backed in writing by an entity that possesses) the Required
Claims-Paying Ratings, a fidelity bond in such form and amount as would permit
it to be a qualified Xxxxxx Xxx or Xxxxxxx Mac seller-servicer of multifamily
mortgage loans (or in such other form and amount as would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by the relevant Rating Agency)). The Master
Servicer and the Special Servicer each shall be deemed to have complied with the
foregoing provision if an Affiliate thereof has such fidelity bond coverage and,
by the terms of such fidelity bond, the coverage afforded thereunder extends to
the Master Servicer or the Special Servicer, as the case may be. Such fidelity
bond shall provide that it may not be canceled without 30 days' prior written
notice to the Trustee.
In addition, the Master Servicer and the Special Servicer each
shall at all times during the term of this Agreement keep in force with
Qualified Insurers that possess (or whose obligations are, in any such case,
guaranteed or backed in writing by an entity that possesses) the Required
Claims-Paying Ratings, a policy or policies of insurance covering loss
occasioned by the errors and omissions of its officers and employees in
connection with its obligation to service the Serviced Mortgage Loans for which
it is responsible hereunder and, to the limited extent contemplated by Articles
I through XI, to administer the [Separately Serviced Mortgage Loan], which
policy or policies shall be in such form and amount as would permit it to be a
qualified Xxxxxx Mae or Xxxxxxx Mac seller-servicer of multifamily mortgage
loans (or in such other form and amount as would not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee by the relevant Rating Agency)). A Master Servicer or 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 such Master Servicer or
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide that it may not be canceled without 30 days' prior written notice to the
Trustee.
(e) On the Closing Date, the Depositor shall deliver to
and deposit with the Special Servicer the Group Terrorism Insurance Policy, and
the Special Servicer shall hold and maintain the Group Terrorism Insurance
Policy for so long as it is in effect. In the event that the Special Servicer
gains actual knowledge of any act of terrorism at any of the Mortgaged
Properties securing the Mortgage Loans identified on Exhibit B-1H, which gives
rise to a loss for which a claim can be made under the Group Terrorism Insurance
Policy (an "Insured Terrorism Event"), then the Special Servicer shall promptly
notify the Trustee and, in accordance with the terms of the Group Terrorism
Insurance Policy and the Servicing Standard, shall timely make a claim under the
Group Terrorism Insurance Policy with the appropriate insurer and shall take
such other actions in accordance with the Servicing Standard which are necessary
under the Group Terrorism Insurance Policy in order to realize the full value
thereof
-124-
for the benefit of the Certificateholders. If any other party hereto has actual
knowledge of an Insured Terrorism Event with respect to any Mortgage Loan
identified on Exhibit B-1H, such party shall promptly so notify the Special
Servicer. Any legal fees, premiums or other out-of-pocket costs incurred in
accordance with the Servicing Standard in connection with any such claim under
the Group Terrorism Insurance Policy shall, at the direction of the Special
Servicer pursuant to Section 3.19(b), be paid by the Master Servicer and shall
be reimbursable to the Master Servicer as a Servicing Advance. With respect to
the Group Terrorism Insurance Policy, the Special Servicer shall review and
familiarize itself with the terms and conditions relating to enforcement of
claims and shall monitor the dates by which any claim must be made or any action
must be taken under such policy in order to realize the full value thereof for
the benefit of the Certificateholders in the event the Special Servicer has
actual knowledge of an Insured Terrorism Event giving rise to a claim under such
policy.
The Special Servicer shall abide by the terms and conditions
precedent to payment of claims under the Group Terrorism Insurance Policy with
respect to the Mortgage Loans identified on Exhibit B-1H and take all such
action as may be required to comply with the terms and provisions of such policy
in order to maintain such policy in full force and effect and to make claims
thereunder.
It is hereby acknowledged that the Depositor or its Affiliate
will be responsible for paying the premiums with respect to the Group Terrorism
Insurance Policy and that the Group Terrorism Insurance Policy will remain in
place with respect to any particular Mortgage Loan identified on Exhibit B-1H
only until the "renewal date" for such Mortgage Loan specified on Exhibit B-1H.
The Special Servicer shall not undertake any efforts to extend the term of the
Group Terrorism Insurance Policy with respect to any Mortgage Loan identified on
Exhibit B-1H, provided that in no event is this sentence intended to relieve the
Master Servicer or the Special Servicer of any obligations relating to the
maintenance of insurance in respect of the Serviced Mortgage Loans and the
related Mortgaged Properties under any other provisions of this Agreement. At
such time as the Group Terrorism Insurance Policy is no longer in effect, the
Special Servicer shall return such policy to the Depositor.
Any Insurance Proceeds received under the Group Terrorism
Insurance Policy shall be promptly delivered to the Master Servicer for deposit
in the Collection Account.
SECTION 3.08. Enforcement of Alienation Clauses.
The Master Servicer (with respect to a Performing Serviced
Mortgage Loan) and the Special Servicer (with respect to a Specially Serviced
Mortgage Loan), on behalf of the Trustee as the mortgagee of record, shall
enforce any "due-on-sale" or "due-on-encumbrance" clauses and any other
restrictions contained in the related Mortgage Loan Documents on transfers or
further encumbrances of the related Mortgaged Property and on transfers of
interests in the related Borrower, unless the Master Servicer or the Special
Servicer, as the case may be, has (i) determined, in its reasonable judgment,
that waiver of such restrictions would be in accordance with the Servicing
Standard and (ii) complied with the applicable requirements, if any, of Section
3.20(a) and Section 3.24; provided that, subject to the related Mortgage Loan
Documents and applicable law, neither the Master Servicer nor the Special
Servicer shall waive any right it has, or grant any consent it is otherwise
entitled to withhold, in accordance with any related "due-on-encumbrance" clause
under any Serviced Mortgage Loan, until it has received written confirmation
from each Rating Agency that such action would not result in an Adverse Rating
Event with respect to any Class of Rated Certificates; and provided, further,
that, if the affected Serviced Mortgage Loan, individually or together with all
other Serviced Mortgage Loans, if
-125-
any, that are in the same Cross-Collateralized Group as such Mortgage Loan is
one of the 10 largest Mortgage Loans then in the trust or has a Cut-off Date
Principal Balance in excess of $__________, then, subject to the related
Mortgage Loan Documents and applicable law, neither the Master Servicer nor the
Special Servicer shall waive any right it has, or grant any consent it is
otherwise entitled to withhold, in accordance with any related "due-on-sale"
clause under any Serviced Mortgage Loan until it has received written
confirmation from each Rating Agency that such action would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates; and
provided, further, that, subject to the related Mortgage Loan Documents and
applicable law, the Master Servicer shall not waive any right it has, or grant
any consent it is otherwise entitled to withhold, in accordance with any related
"due-on-sale" or "due-on-encumbrance" clause under any Serviced Mortgage Loan,
or approve the assumption of any Serviced Mortgage Loan, until it has delivered
to the Special Servicer its recommendation and analysis of the request, together
with a copy of the materials and information upon which such recommendation is
based, and has received the consent of the Special Servicer (the giving of which
consent shall be subject to the Servicing Standard and Section 3.24), which
consent shall be deemed given if not denied in writing within ten Business Days
of receipt by the Special Servicer of the Master Servicer's written
recommendation and analysis and any additional information requested by the
Special Servicer or the Controlling Class Representative; and provided, further,
that, subject to the related Mortgage Loan Documents and applicable law, neither
the Master Servicer nor the Special Servicer shall waive any right it has, or
grant any consent it is otherwise entitled to withhold, in accordance with any
related "due-on-sale" or "due-on-encumbrance" clause under any Serviced Mortgage
Loan, or approve the assumption of any Serviced Mortgage Loan, unless in any
such case, all associated costs and expenses are covered without any expense to
the Trust (it being understood and agreed that, except as expressly provided
herein, neither the Master Servicer nor the Special Servicer shall be obligated
to cover or assume any such costs or expenses); and provided, further, that
neither the Master Servicer nor the Special Servicer shall (to the extent that
it is within the control thereof to prohibit such event) consent to the transfer
of any Mortgaged Property which secures a Cross-Collateralized Group unless (i)
all of the Mortgaged Properties securing such Cross-Collateralized Group are
transferred simultaneously by the respective Borrower or (ii) it obtains the
consent of the Controlling Class Representative, which consent shall be deemed
given if not denied in writing within ten Business Days of receipt by the
Controlling Class Representative of written notice of such action and all
reasonably requested information related thereto. In the case of any Serviced
Mortgage Loan, the Master Servicer and the Special Servicer shall each provide
the other with all such information as each may reasonably request in order to
perform its duties under this section.
In connection with any permitted assumption of any Serviced
Mortgage Loan or waiver of a "due-on-sale" or "due-on-encumbrance" clause
thereunder, the Master Servicer (in the case of a Performing Serviced Mortgage
Loan) or the Special Servicer (in the case of a Specially Serviced Mortgage
Loan) shall prepare all documents necessary and appropriate for such purposes
and shall coordinate with the related Borrower for the due execution and
delivery of such documents.
If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Borrower or a Mortgaged Property, then
the Master Servicer or the Special Servicer, as applicable, will apply that fee
to cover the costs and expenses associated with that transfer or proposed
transfer that are not otherwise paid by the related Borrower and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses to the extent such fees and expenses are collectible
under applicable law and the Master Servicer or the Special Servicer, as
appropriate, fails to enforce
-126-
such requirement in accordance with the related Mortgage Loan Documents. Any
remaining portion of such assumption fee (such remaining portion, a "Net
Assumption Fee") or of such assumption application fee (such remaining portion,
a "Net Assumption Application Fee") will be applied as additional compensation
to the Master Servicer or the Special Servicer in accordance with Section 3.11.
Neither the Master Servicer nor the Special Servicer shall waive any assumption
fee or assumption application fee, to the extent it would constitute additional
compensation for the other such party, without the consent of such other party.
If and to the extent that, in the case of any Mortgage Loan,
approval of the lender is required in connection with the related Borrower's
incurring unsecured debt in addition to (A) trade receivables, (B) equipment
financing and (C) other debt incurred in the ordinary course of business, then
the Master Servicer (if the subject Mortgage Loan is a Performing Serviced
Mortgage Loan) or the Special Servicer (if the subject Mortgage Loan is a
Specially Serviced Mortgage Loan), as applicable, shall refuse to approve such
unsecured debt unless and until it has obtained (i) in the case of the Master
Servicer, the consent of the Special Servicer (the giving of which consent shall
be subject to the Servicing Standard and Section 3.24), which consent shall be
deemed given if not denied in writing within 10 Business Days of receipt by the
Special Servicer of the Master Servicer's written recommendation and analysis
and any additional information requested by the Special Servicer, and (ii) in
each such case, if the subject Mortgage Loan has an unpaid principal balance in
excess of $__________, written confirmation from each Rating Agency to the
effect that the related Borrower's incurring such unsecured debt will not result
in an Adverse Rating Event with respect to any Class of Rated Certificates;
provided that neither the Master Servicer nor the Special Servicer shall be
obligated to obtain any such ratings confirmation if, pursuant to the related
Mortgage Loan Documents and/or applicable law, it would not be able either (i)
to withhold its consent based upon the failure of either Rating Agency to
provide such ratings confirmation or (ii) to obtain payment from the related
Borrower of the cost of obtaining such ratings confirmation.
SECTION 3.09. Realization Upon Defaulted Serviced Mortgage
Loans.
(a) The Special Servicer shall, subject to Sections
3.09(b), 3.09(c), 3.09(d) and 3.24 of this Agreement, exercise reasonable
efforts, consistent with the Servicing Standard, to foreclose upon or otherwise
comparably convert the ownership of the real property and other collateral
securing any Serviced Mortgage Loan that comes into and continues in default and
as to which no satisfactory arrangements can be made for collection of
delinquent payments, including pursuant to Section 3.20; provided that the
Master Servicer shall not, with respect to any Serviced Mortgage Loan that is an
ARD Mortgage Loan, take any enforcement action with respect to the payment of
Post-ARD Additional Interest (other than the making of requests for its
collection), and the Special Servicer will do so only if such Mortgage Loan has
become a Specially Serviced Mortgage Loan and either (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
Mortgage Loan is, in the reasonable judgment of the Special Servicer, and
without regard to such Post-ARD Additional Interest, also necessary, appropriate
and consistent with the Servicing Standard or (ii) all other amounts due under
such Mortgage Loan have been paid, the payment of such Post-ARD Additional
Interest has not been forgiven in accordance with Section 3.20 and, in the
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
Advance Interest. In connection with the foregoing, in the event of a default
under any Serviced Mortgage Loan or Cross-Collateralized Group that is secured
by real properties located in multiple states, and such
-127-
states include California or another state with a statute, rule or regulation
comparable to California's "one action rule", then the Special Servicer shall
consult Independent counsel regarding the order and manner in which the Special
Servicer should foreclose upon or comparably proceed against such properties.
The reasonable costs of such consultation shall be paid by, and shall be
reimbursable to, the Special Servicer (or, subject to Section 3.19(b), the
Master Servicer) as a Servicing Advance. In addition, all other costs and
expenses incurred in any foreclosure sale or similar proceeding shall be paid
by, and reimbursable to, the Special Servicer (or, subject to Section 3.19(b),
the Master Servicer) as a Servicing Advance. Nothing contained in this Section
3.09 shall be construed so as to require the Special Servicer, on behalf of the
Trust, to make a bid on any Mortgaged Property at a foreclosure sale or similar
proceeding that is in excess of the fair market value of such property, as
determined by the Special Servicer taking into account the factors described in
Section 3.18 and the results of any appraisal obtained pursuant to the following
sentence or otherwise, all such bids to be made in a manner consistent with the
Servicing Standard. If and when the Special Servicer deems it necessary in
accordance with the Servicing Standard for purposes of establishing the fair
market value of any Mortgaged Property securing a defaulted Serviced Mortgage
Loan, whether for purposes of bidding at foreclosure or otherwise, the Special
Servicer is authorized to have an Appraisal completed with respect to such
property (the cost of which appraisal shall be covered by, and be reimbursable
as, a Servicing Advance).
The Master Servicer shall not foreclose upon or otherwise
comparably convert, including by taking title thereto, any real property or
other collateral securing a defaulted Serviced Mortgage Loan (and, except as
expressly provided for in Article XII, neither the Master Servicer nor the
Special Servicer shall take any such action with respect to the [Separately
Serviced Mortgage Loan]).
(b) Notwithstanding any other provision of this
Agreement, the Special Servicer shall not acquire a Mortgaged Property on behalf
of the Trust under such circumstances, in such manner or pursuant to such terms
as would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (unless the
portion of such REO Property that is not treated as "foreclosure property" and
that is held by any REMIC Pool at any given time constitutes not more than a de
minimis amount of the assets of such REMIC Pool within the meaning of Treasury
regulation section 1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by
Section 3.17(a), subject the Trust to the imposition of any federal income or
prohibited transaction taxes under the Code. Subject to the foregoing, however,
a Mortgaged Property may be acquired through a single member limited liability
company pursuant to Section 3.16. In addition, the Special Servicer shall not
acquire any personal property on behalf of the Trust pursuant to this Section
3.09 unless either:
(i) such personal property is incident to real
property (within the meaning of Section 856(e)(1) of the Code) so
acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an
Opinion of Counsel (the cost of which shall be covered by, and
reimbursable as, a Servicing Advance) to the effect that the holding of
such personal property as part of the Trust Fund will not result in an
Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool.
(c) Notwithstanding the foregoing provisions of this
Section 3.09, the Special Servicer shall not, on behalf of the Trust, obtain
title to a Mortgaged Property by foreclosure, deed in
-128-
lieu of foreclosure or otherwise, or take any other action with respect to any
Mortgaged Property, if, as a result of any such action, the Trustee, on behalf
of the Certificateholders, could, in the reasonable judgment of the Special
Servicer, exercised in accordance with the Servicing Standard, be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless:
(i) the Special Servicer has previously
determined in accordance with the Servicing Standard, based on a Phase
I Environmental Assessment (and any additional environmental testing
that the Special Servicer deems necessary and prudent) of the subject
Mortgaged Property conducted during the 12-month period preceding any
such acquisition of title or other action by an Independent Person who
regularly conducts Phase I Environmental Assessments, that such
Mortgaged Property is in compliance with applicable environmental laws
and regulations and there are no circumstances or conditions present at
such Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations; or
(ii) subject to Section 3.24 of this Agreement,
in the event that the determination described in clause (c)(i) above
cannot be made, the Special Servicer has previously determined in
accordance with the Servicing Standard, on the same basis as described
in clause (c)(i) above, and taking into account the coverage provided
under any related Environmental Insurance Policy, that it would
maximize the recovery to the Certificateholders (as a collective whole)
on a present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders to be
performed at the related Net Mortgage Rate) to acquire title to or
possession of the subject Mortgaged Property and to take such remedial,
corrective and/or other further actions as are necessary to bring the
Mortgaged Property into compliance with applicable environmental laws
and regulations and to appropriately address any of the circumstances
and conditions referred to in clause (c)(i) above.
Any such determination by the Special Servicer contemplated by
clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer and the Controlling Class Representative, specifying all of the bases
for such determination, such Officer's Certificate to be accompanied by all
related environmental reports. The cost of such Phase I Environmental Assessment
and any such additional environmental testing shall be advanced by the Master
Servicer at the direction of the Special Servicer in accordance with Section
3.19(b) given in accordance with the Servicing Standard; provided, however, that
the Master Servicer shall not be obligated in connection therewith to advance
any funds which, if so advanced, would constitute a Nonrecoverable Servicing
Advance. Amounts so advanced shall be subject to reimbursement as Servicing
Advances in accordance with Section 3.05(a). The cost of any remedial,
corrective or other further action contemplated by clause (ii) of the preceding
paragraph shall be payable out of the Collection Account pursuant to Section
3.05.
(d) If neither of the conditions set forth in clause (i)
and clause (ii) of the first sentence of Section 3.09(c) has been satisfied with
respect to any Mortgaged Property securing a defaulted Serviced Mortgage Loan,
then (subject to Section 3.24 of this Agreement) the Special Servicer shall take
such action as is in accordance with the Servicing Standard (other than
proceeding against the
-129-
Mortgaged Property) and, at such time as it deems appropriate, may, on behalf of
the Trust, release all or a portion of such Mortgaged Property from the lien of
the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the
Master Servicer and the Controlling Class Representative monthly in writing, in
the form of an Officer's Certificate, as to any actions taken by the Special
Servicer with respect to any Mortgaged Property as to which neither of the
conditions set forth in clauses (i) and (ii) of the first sentence of Section
3.09(c) has been satisfied, in each case until the earliest to occur of
satisfaction of either of such conditions, release of the lien of the related
Mortgage on such Mortgaged Property and the related Serviced Mortgage Loan's
becoming a Corrected Serviced Mortgage Loan.
(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 with respect to any Serviced Mortgage
Loan if the state in which the related Mortgaged Property is located and the
related Mortgage Loan Documents permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) Annually in each January, the Special Servicer shall
on a timely basis forward to the Master Servicer the information required to
prepare, and the Master Servicer shall promptly prepare and file with the IRS on
a timely basis, the information returns with respect to the reports of
foreclosures and abandonments and reports relating to any cancellation of
indebtedness income with respect to any Serviced Mortgage Loan or related
Mortgaged Property required by Sections 6050H (as applicable), 6050J and 6050P
of the Code. Contemporaneously, the Master Servicer shall promptly forward to
the Trustee an Officer's Certificate stating that all such information returns
relating to any Specially Serviced Mortgage Loan or Administered REO Property
that were required to be filed during the prior twelve (12) months have been
properly completed and timely filed. The Master Servicer shall prepare and file
the information returns with respect to the receipt of any mortgage interest
received in a trade or business from individuals with respect to any Serviced
Mortgage Loan as required by Section 6050H of the Code. All information returns
shall be in form and substance sufficient to meet the reporting requirements
imposed by the relevant sections of the Code.
(h) As soon as the Special Servicer (or, in the case of a
Performing Serviced Mortgage Loan, the [Separately Serviced Mortgage Loan] or
any [Separately Serviced Mortgage Loan] REO Property, the Master Servicer) makes
in consultation with the Controlling Class Representative a Final Recovery
Determination with respect to any Mortgage Loan or REO Property, it shall
promptly notify the Trustee, the Master Servicer, and the Controlling Class
Representative. The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each such Final Recovery Determination (if any) made
by it and the basis thereof. Each such Final Recovery Determination (if any)
shall be evidenced by an Officer's Certificate delivered to the Trustee, the
Master Servicer and the Controlling Class Representative no later than the third
Business Day following such Final Recovery Determination.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Serviced Mortgage
Loan, or the receipt by the Master Servicer of a notification that such payment
in full shall be escrowed or made in a manner customary for such purposes, the
Master Servicer shall promptly so notify the Trustee and request delivery to it
or its designee of the related Mortgage File (such notice and request to be
effected by
-130-
delivering to the Trustee a Request for Release in the form of Exhibit D-1
attached hereto, which Request for Release shall be accompanied by the form of
any release or discharge to be executed by the Trustee and shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.04(a) have been or will be so
deposited). Upon receipt of such Request for Release, the Trustee shall promptly
release the related Mortgage File to the Master Servicer or its designee and
shall deliver to the Master Servicer or its designee such accompanying release
or discharge, duly executed. Customary expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall not be chargeable to
the Collection Account or the Distribution Account.
(b) If from time to time, and as appropriate for
servicing or foreclosure of any Serviced Mortgage Loan, the Master Servicer or
the Special Servicer shall otherwise require any Mortgage File (or any portion
thereof), then, 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, the Trustee shall release or cause the release of
such Mortgage File (or portion thereof) to the Master Servicer or the Special
Servicer, as the case may be, or its designee. Upon return of such Mortgage File
(or portion thereof) to the Trustee, or upon the Special Servicer's delivery to
the Trustee of an Officer's Certificate stating that (i) the subject Serviced
Mortgage Loan was liquidated and all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Collection Account pursuant to Section 3.04(a) have been or will be so deposited
or (ii) such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be returned by the Trustee to the Master Servicer or the Special
Servicer, as applicable.
(c) Within five Business Days of the Special Servicer's
request therefor (or, if the Special Servicer notifies the Trustee of an
exigency, within such shorter period as is reasonable under the circumstances),
the Trustee shall execute and deliver to the Special Servicer, in the form
supplied to the Trustee by the Special Servicer, any court pleadings, requests
for trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Borrower on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity or to defend any legal action or counterclaim filed against the Trust,
the Master Servicer or the Special Servicer; provided that the Trustee may
alternatively execute and deliver to the Special Servicer, in the form supplied
to the Trustee by the Special Servicer, a limited power of attorney issued in
favor of the Special Servicer and empowering the Special Servicer to execute and
deliver any or all of such pleadings or documents on behalf of the Trustee
(however, the Trustee shall not be liable for any misuse of such power of
attorney by the Special Servicer). Together with such pleadings or documents (or
such power of attorney empowering the Special Servicer to execute the same on
behalf of the Trustee), the Special Servicer shall deliver to the Trustee an
Officer's Certificate requesting that such pleadings or documents (or such power
of attorney empowering the Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by the Special Servicer on behalf of the Trustee) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
-131-
(d) If from time to time, pursuant to the terms of the
[Separately Serviced Mortgage Loan] A/A Intercreditor Agreement and any
[Separately Serviced Mortgage Loan] Servicing Agreement, and as appropriate for
enforcing the terms of the [Separately Serviced Mortgage Loan], the [Separately
Serviced Mortgage Loan] Master Servicer, the [Separately Serviced Mortgage Loan]
Special Servicer or the holder of the [Separately Serviced Mortgage Loan] Pari
Passu Companion Loan requests delivery to it of the original Mortgage Note for
the [Separately Serviced Mortgage Loan], then the Trustee shall release or cause
the release of such original Mortgage Note to the requesting party or its
designee. In connection with the release of the original Mortgage Note for the
[Separately Serviced Mortgage Loan] in accordance with the preceding sentence,
the Trustee shall obtain such documentation as is appropriate to evidence the
holding by the [Separately Serviced Mortgage Loan] Master Servicer, the
[Separately Serviced Mortgage Loan] Special Servicer or the holder of the
[Separately Serviced Mortgage Loan] Pari Passu Companion Loan of such original
Mortgage Note as custodian on behalf of and for the benefit of the Trustee.
SECTION 3.11. Master Servicing and Special Servicing
Compensation; Interest on and Reimbursement
of Servicing Advances; Payment of Certain
Expenses; Obligations of the Trustee and any
Fiscal Agent Regarding Back-up Servicing
Advances.
(a) As compensation for its activities hereunder, the
Master Servicer shall be entitled to receive monthly the Master Servicing Fee
with respect to each Mortgage Loan (including the [Separately Serviced Mortgage
Loan] and each Specially Serviced Mortgage Loan) and each REO Loan. The Master
Servicing Fee with respect to any Mortgage Loan shall commence accruing on its
Due Date in ________ ____, and the Master Servicing Fee with respect to any REO
Loan shall commence accruing on the Acquisition Date for the related REO
Property. As to each Mortgage Loan and REO Loan, for any particular one-month
period from and including one related Due Date to but excluding the immediately
following related Due Date (or for any applicable portion of any such one-month
period), the Master Servicing Fee shall accrue at the related Master Servicing
Fee Rate on the same principal amount and for the same number of days as
interest accrues or is deemed to accrue during such one-month period (or portion
thereof) on such Mortgage Loan or REO Loan, as the case may be. As to each
Mortgage Loan and REO Loan, the Master Servicing Fee shall be computed on the
same Interest Accrual Basis as is applicable to the accrual or deemed accrual of
interest on such Mortgage Loan or REO Loan, as the case may be. The Master
Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. Master Servicing Fees
earned with respect to any Mortgage Loan or REO Loan shall be payable monthly
from payments of interest on such Mortgage Loan or REO Revenues allocable as
interest on such REO Loan, as the case may be. The Master Servicer shall be
entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan
or REO Loan out of the portion of any related Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds allocable as interest on such Mortgage Loan or
REO Loan, as the case may be.
[Master Servicer] and any holder of the Excess Servicing Fee
Right shall be entitled, at any time, at its own expense, to transfer, sell,
pledge or otherwise assign the Excess Servicing Fee Right in whole (but not in
part) to any Qualified Institutional Buyer or Institutional Accredited Investor
(other than a Plan), provided that no such transfer, sale, pledge or other
assignment shall be made unless (i) that transfer, sale, pledge or other
assignment is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws and is otherwise
made in
-132-
accordance with the Securities Act and such state securities laws, (ii) the
prospective transferor shall have delivered to the Depositor a certificate
substantially in the form attached as Exhibit F-3A hereto, and (iii) the
prospective transferee shall have delivered to [Master Servicer] and the
Depositor a certificate substantially in the form attached as Exhibit F-3B
hereto. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Excess Servicing Fee Right under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer, sale, pledge or assignment
of the Excess Servicing Fee Right without registration or qualification. [Master
Servicer], and each holder of the Excess Servicing Fee Right desiring to effect
a transfer, sale, pledge or other assignment of the Excess Servicing Fee Right
shall, and [Master Servicer] hereby agrees, and each such holder of the Excess
Servicing Fee Right by its acceptance of the Excess Servicing Fee Right shall be
deemed to have agreed, in connection with any transfer of the Excess Servicing
Fee Right effected by such Person, to indemnify the Certificateholders, the
Trust, the Depositor, the Underwriters, the Trustee, any Fiscal Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer against any
liability that may result if such transfer is not exempt from registration
and/or qualification under the Securities Act or other applicable federal and
state securities laws or is not made in accordance with such federal and state
laws or in accordance with the foregoing provisions of this paragraph. By its
acceptance of the Excess Servicing Fee Right, the holder thereof shall be deemed
to have agreed (i) to keep all information relating to the Trust and the Trust
Fund and made available to it by the Master Servicer confidential (except as
permitted pursuant to clause (iii) below or, in the case of the Master Servicer,
as contemplated hereby in the performance of its duties and obligations
hereunder), (ii) not to use or disclose such information in any manner that
could result in a violation of any provision of the Securities Act or other
applicable securities laws or that would require registration of the Excess
Servicing Fee Right or any Non-Registered Certificate pursuant to the Securities
Act, and (iii) not to disclose such information, and to cause its officers,
directors, partners, employees, agents or representatives not to disclose such
information, in any manner whatsoever, in whole or in part, to any other Person
other than such holder's auditors, legal counsel and regulators, except to the
extent such disclosure is required by law, court order or other legal
requirement or to the extent such information is of public knowledge at the time
of disclosure by such holder or has become generally available to the public
other than as a result of disclosure by such holder; provided, however, that
such holder may provide all or any part of such information to any other Person
who is contemplating an acquisition of the Excess Servicing Fee Right if, and
only if, such Person (x) confirms in writing such prospective acquisition and
(y) agrees in writing to keep such information confidential, not to use or
disclose such information in any manner that could result in a violation of any
provision of the Securities Act or other applicable securities laws or that
would require registration of the Excess Servicing Fee Right or any
Non-Registered Certificates pursuant to the Securities Act and not to disclose
such information, and to cause its officers, directors, partners, employees,
agents or representatives not to disclose such information, in any manner
whatsoever, in whole or in part, to any other Person other than such Persons'
auditors, legal counsel and regulators. From time to time following any
transfer, sale, pledge or assignment of the Excess Servicing Fee Right, the
Person then acting as Master Servicer shall pay, out of each amount paid to the
Master Servicer as Master Servicing Fees, the related Excess Servicing Fees to
the holder of the Excess Servicing Fee Right within one Business Day following
the payment of such Master Servicing Fees to the Master Servicer, in each case
in accordance with payment instructions provided by such holder in writing to
the Master Servicer. The holder of the Excess Servicing Fee Right shall not have
any rights under this Agreement except as set forth in the preceding sentences
of this paragraph. Neither the Trustee nor the Certificate Registrar shall have
any obligation whatsoever regarding payment of the Excess Servicing Fee or the
assignment or transfer of the Excess Servicing Fee Right.
-133-
Subject to the Master Servicer's right to employ
Sub-Servicers, the right to receive the Master Servicing Fee may not be
transferred in whole or in part except pursuant to the immediately preceding
paragraph or in connection with the transfer of all of the Master Servicer's
responsibilities and obligations under this Agreement.
(b) Subject to offset as provided in Section 3.02(a), the
Master Servicer shall be entitled to receive the following items as additional
servicing compensation (the following items, collectively, "Additional Master
Servicing Compensation"):
(i) any and all Net Default Charges collected
with respect to a Performing Serviced Mortgage Loan or, to the extent
remitted to the Trust under a [Separately Serviced Mortgage Loan]
Servicing Agreement or transferred from the [Separately Serviced
Mortgage Loan] Custodial Account to the Collection Account under
Section 12.04(b), with respect to the [Separately Serviced Mortgage
Loan] or any [Separately Serviced Mortgage Loan] REO Loan;
(ii) [50]% of any and all Net Assumption
Application Fees, Net Assumption Fees, modification fees, extension
fees, consent fees, release fees, waiver fees, fees paid in connection
with defeasance and earn-out fees actually paid by a Borrower with
respect to a Performing Serviced Mortgage Loan;
(iii) any and all charges for beneficiary
statements or demands, amounts collected for checks returned for
insufficient funds and other loan processing fees actually paid by a
Borrower with respect to a Performing Serviced Mortgage Loan and, in
the case of checks returned for insufficient funds, with respect to a
Specially Serviced Mortgage Loan;
(iv) any and all Prepayment Interest Excesses
collected with respect to the Mortgage Loans, including Specially
Serviced Mortgage Loans and, if applicable, the [Separately Serviced
Mortgage Loan], to the extent not needed to pay Compensating Interest
Payments; and
(v) interest or other income earned on deposits
in the Accounts maintained by the Master Servicer, in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings,
if any, with respect to any such Account for each Collection Period
and, further, in the case of a Servicing Account or Reserve Account,
only to the extent such interest or other income is not required to be
paid to any Borrower under applicable law or under the related
Mortgage).
To the extent that any of the amounts described in clauses (i)
through (iv), inclusive, of the preceding paragraph are collected by the Special
Servicer, the Special Servicer shall promptly pay such amounts to the Master
Servicer.
(c) As compensation for its activities hereunder, subject
to the proviso to clause (e) of the definition of "Servicing Transfer Event",
the Special Servicer shall be entitled to receive monthly the Special Servicing
Fee with respect to each Specially Serviced Mortgage Loan and each REO Loan
(other than any [Separately Serviced Mortgage Loan] REO Loan). The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan shall
commence accruing on the related Servicing Transfer Date, and the Special
Servicing Fee with respect to any REO Loan (other than any [Separately Serviced
Mortgage Loan] REO Loan) shall commence accruing on the Acquisition Date for the
related
-134-
REO Property. As to each Specially Serviced Mortgage Loan and REO Loan (other
than any [Separately Serviced Mortgage Loan] REO Loan), for any particular
one-month period from and including one related Due Date to but excluding the
immediately following related Due Date (or for any applicable portion of any
such one-month period), the Special Servicing Fee shall accrue at the Special
Servicing Fee Rate on the same principal amount and for the same number of days
as interest accrues or is deemed to accrue from time to time during such
one-month period (or portion thereof) on such Specially Serviced Mortgage Loan
or such REO Loan, as the case may be. As to each Specially Serviced Mortgage
Loan and REO Loan (other than any [Separately Serviced Mortgage Loan] REO Loan),
the Special Servicing Fee shall be computed on the same Interest Accrual Basis
as is applicable to the accrual or deemed accrual of interest on such Specially
Serviced Mortgage Loan or REO Loan, as the case may be. The Special Servicing
Fee with respect to any Specially Serviced Mortgage Loan or REO Loan (other than
any [Separately Serviced Mortgage Loan] REO Loan) shall cease to accrue as of
the date a Liquidation Event occurs in respect thereof or, in the case of a
Specially Serviced Mortgage Loan, as of the date it ceases to be a Specially
Serviced Mortgage Loan. Earned but unpaid Special Servicing Fees shall be
payable first out of related Liquidation Proceeds and then monthly out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Collection Account.
As further compensation for its activities hereunder, subject
to the proviso to clause (e) of the definition of "Servicing Transfer Event",
the Special Servicer shall be entitled to receive the Workout Fee with respect
to each Corrected Serviced Mortgage Loan. As to each Corrected Serviced Mortgage
Loan, the Workout Fee shall be payable out of, and shall be calculated by
application of the applicable Workout Fee Rate to, each payment of interest
(other than Post-ARD Additional Interest and Default Interest) and principal
received from the related Borrower on such Mortgage Loan for so long as it
remains a Corrected Serviced Mortgage Loan. The Workout Fee with respect to any
Corrected Serviced Mortgage Loan will cease to be payable if a Servicing
Transfer Event occurs with respect thereto or if such Mortgage Loan otherwise
ceases to be a Corrected Serviced Mortgage Loan; provided that a new Workout Fee
would become payable if and when such Mortgage Loan again became a Corrected
Serviced Mortgage Loan with respect to such new Servicing Transfer Event. If the
Special Servicer is terminated (other than for cause), including pursuant to
Section 6.06, or resigns in accordance with Section 6.04, it shall retain the
right to receive any and all Workout Fees payable in respect of (i) any Serviced
Mortgage Loans that became Corrected Serviced Mortgage Loans during the period
that it acted as Special Servicer and that were still Corrected Serviced
Mortgage Loans at the time of such termination or resignation and (ii) any
Specially Serviced Mortgage Loan for which it has resolved the circumstances
and/or conditions causing such Mortgage Loan to be a Specially Serviced Mortgage
Loan, but which had not as of the time it was terminated or resigned become a
Corrected Serviced Mortgage Loan solely because the related Borrower had not
made three consecutive timely Monthly Payments and which subsequently becomes a
Corrected Serviced Mortgage Loan as a result of the related Borrower making such
three consecutive timely Monthly Payments (and the successor special servicer
shall not be entitled to any portion of such Workout Fees), in each case until
the Workout Fee for any such loan ceases to be payable in accordance with the
preceding sentence; provided that, in the case of any Specially Serviced
Mortgage Loan described in clause (ii) of this sentence, the
terminated/resigning Special Servicer shall immediately deliver the related
Servicing File to the Master Servicer, and the Master Servicer shall (without
further compensation) monitor that all conditions precedent to such Mortgage
Loan's becoming a Corrected Serviced Mortgage Loan are satisfied and, further,
shall immediately transfer such Servicing File to the new Special Servicer if
and when it becomes apparent to the Master Servicer that such conditions
precedent will not be satisfied.
-135-
As further compensation for its activities hereunder, subject
to the proviso to clause (e) of the definition of "Servicing Transfer Event",
and further subject to the second succeeding sentence, the Special Servicer
shall also be entitled to receive a Liquidation Fee with respect to each
Specially Serviced Mortgage Loan, if any, as to which it receives any full,
partial or discounted payoff from the related Borrower and each Specially
Serviced Mortgage Loan and Administered REO Property, if any, as to which it
receives any Condemnation Proceeds, Insurance Proceeds or Liquidation Proceeds.
As to any such Specially Serviced Mortgage Loan or Administered REO Property,
the Liquidation Fee shall be payable out of, and shall be calculated by
application of the Liquidation Fee Rate to, any such full, partial or discounted
payoff, Condemnation Proceeds, Insurance Proceeds and/or Liquidation Proceeds
received or collected in respect thereof (other than any portion of such payment
or proceeds that represents Post-ARD Additional Interest, Default Charges or a
Prepayment Premium). Notwithstanding the foregoing, no Liquidation Fee shall be
payable based on, or out of, Liquidation Proceeds received in connection with
(A) the repurchase of any Specially Serviced Mortgage Loan or Administered REO
Property by or on behalf of the related Mortgage Loan Seller as a result of a
Material Document Defect or a Material Breach, pursuant to the related Mortgage
Loan Purchase Agreement or as otherwise contemplated by Section 2.03, so long as
such repurchase occurs within the Initial Resolution Period and any applicable
Resolution Extension Period, B) the repurchase of any Early Defeasance Mortgage
Loan by CGMRC as a result of the defeasance of such Mortgage Loan prior to the
second anniversary of the Startup Day of the related Loan REMIC, pursuant to the
related Mortgage Loan Purchase Agreement, (C) the purchase of any Specially
Designated Defaulted Mortgage Loan by the Special Servicer, the Majority
Controlling Class Certificateholder(s) or any assignee thereof pursuant to
Section 3.18(c), (D) the purchase of any Specially Serviced Mortgage Loan or
Administered REO Property by the Master Servicer, the Special Servicer or a
Controlling Class Certificateholder pursuant to Section 9.01, (E) the
acquisition of any Specially Serviced Mortgage Loan or Administered REO Property
by the Sole Certificateholder(s) in exchange for all the Certificates pursuant
to Section 9.01, (F) the purchase of any Specially Serviced Mortgage Loan or
Administered REO Property by any other creditor of the related Borrower or any
of its Affiliates or other equity holders pursuant to a right under the related
Mortgage Loan Documents (provided that such right is exercised within the period
and in the manner required under such Mortgage Loan Documents and the payment of
the Liquidation Fee would not otherwise be covered by the price to be paid by
such creditor), (G) any payments under the Group Terrorism Insurance Policy or
(H) any Liquidation Event involving the [Separately Serviced Mortgage Loan] or
any [Separately Serviced Mortgage Loan] REO Property (including any purchase of
such Mortgage Loan by the holder of the [Separately Serviced Mortgage Loan]
Subordinate Companion Loan in accordance with the [Separately Serviced Mortgage
Loan] A/B Intercreditor Agreement). The Liquidation Fee with respect to any such
Specially Serviced Mortgage Loan will not be payable if such Mortgage Loan
becomes a Corrected Serviced Mortgage Loan.
Subject to the Special Servicer's right to employ
Sub-Servicers, the Special Servicer's right to receive any Special Servicing
Fee, Workout Fee and/or Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement.
(d) Subject to offset as provided in Section 3.02(a), the
Special Servicer shall be entitled to receive the following items as additional
special servicing compensation (the following items, collectively, the
"Additional Special Servicing Compensation"):
-136-
(i) any and all Net Default Charges collected
with respect to a Specially Serviced Mortgage Loan or an REO Loan
(other than any [Separately Serviced Mortgage Loan]REO Loan);
(ii) any and all Net Assumption Fees, Net
Assumption Application Fees, modification fees, extension fees, consent
fees, release fees, waiver fees, fees paid in connection with
defeasance, earn-out fees and charges for beneficiary statements or
demands that are actually received on or with respect to a Specially
Serviced Mortgage Loan or an REO Loan (other than any [Separately
Serviced Mortgage Loan] REO Loan);
(iii) [50]% of any and all Net Assumption Fees,
Net Assumption Application Fees, modification fees, extension fees,
consent fees, release fees, waiver fees, fees paid in connection with
defeasance and earn-out fees that are actually received on or with
respect to a Performing Serviced Mortgage Loan; and
(iv) interest or other income earned on deposits
in the REO Account maintained by the Special Servicer in accordance
with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to the REO Account for each Collection
Period).
To the extent that any of the amounts described in clauses (i)
through (iii), inclusive, of the preceding paragraph are collected by the Master
Servicer, the Master Servicer shall promptly pay such amounts to the Special
Servicer and shall not be required to deposit such amounts in the Collection
Account pursuant to Section 3.04(a).
(e) The Master Servicer and the Special Servicer each
shall be required (subject to Section 3.11(h) below) to pay out of its own funds
all expenses incurred by it in connection with its servicing activities
hereunder (including payment of any amounts due and owing to any of
Sub-Servicers retained by it (including any termination fees) and the premiums
for any blanket policy or the standby fee or similar premium, if any, for any
master force place policy obtained by it insuring against hazard losses pursuant
to Section 3.07(b)), if and to the extent such expenses are not Servicing
Advances or expenses payable pursuant to Section 3.11(i) or otherwise pursuant
to this Agreement, directly out of the Collection Account, any Servicing
Account, any Reserve Account or the REO Account, and neither the Master Servicer
nor the Special Servicer shall be entitled to reimbursement for any such expense
incurred by it except as expressly provided in this Agreement. If the Master
Servicer is required to make any Servicing Advance hereunder at the discretion
of the Special Servicer in accordance with Section 3.19 or otherwise, the
Special Servicer shall promptly provide the Master Servicer with such
documentation regarding the subject Servicing Advance as the Master Servicer may
reasonably request.
(f) If the Master Servicer or the Special Servicer is
required under this Agreement to make a Servicing Advance, but it does not do so
within ten days after such Advance is required to be made, then the Trustee
shall, if it has actual knowledge of such failure on the part of the Master
Servicer or the Special Servicer, as the case may be, give notice of such
failure to the defaulting party. If such Advance is not made by the Master
Servicer or the Special Servicer, as the case may be, within three Business Days
after such notice, then (subject to Section 3.11(h) below) the Trustee or a
Fiscal Agent appointed thereby shall make such Advance. If any Fiscal Agent
makes any such Servicing Advance, the Trustee shall be deemed not to be in
default under this Agreement for failing to do so.
-137-
(g) The Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent shall each be entitled to receive interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of each
Servicing Advance made by that Person (with its own funds) hereunder, for so
long as such Servicing Advance is outstanding; provided that the Master Servicer
shall not be entitled to Advance Interest on any Servicing Advance made thereby
to the extent a payment of the item covered by such Servicing Advance has been
made but is being held in suspense. Such interest with respect to any Servicing
Advance shall be payable: (i) first, in accordance with Sections 3.05 and 1.04,
out of any and all Default Charges subsequently collected with respect to the
particular Mortgage Loan or successor REO Loan with respect thereto as to which
such Servicing Advance was made; and (ii) then, after such Servicing Advance is
reimbursed, but only if and to the extent that such Default Charges described in
the immediately preceding clause (i) are and have been insufficient to cover
such Advance Interest, out of general collections on the Mortgage Loans and REO
Properties on deposit in the Collection Account. The Master Servicer shall
reimburse itself, the Special Servicer, the Trustee or any Fiscal Agent, as
appropriate, for any Servicing Advance made by any such Person as soon as
practicable after funds available for such purpose are deposited in the
Collection Account.
(h) Notwithstanding anything to the contrary set forth
herein, none of the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent shall be required to make any Servicing Advance that it determines
in its reasonable judgment would constitute a Nonrecoverable Servicing Advance.
The determination by any Person with an obligation hereunder to make Servicing
Advances that it has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, shall be made by such Person in its reasonable judgment and shall be
evidenced by an Officer's Certificate delivered promptly to the Depositor, the
Trustee (unless it is the Person making such determination) and the Controlling
Class Representative, setting forth the basis for such determination,
accompanied (in the case of the Controlling Class Representative and otherwise
upon request) by a copy of an Appraisal (if and when available) of the related
Mortgaged Property or REO Property performed within the 12 months preceding such
determination, and further accompanied (in the case of the Controlling Class
Representative and otherwise upon request) by any other information, including
engineers' reports, environmental surveys or similar reports, that such Person
may have obtained and that support such determination. Notwithstanding the
foregoing, the Trustee and any Fiscal Agent shall be entitled to conclusively
rely on any determination of nonrecoverability that may have been made by the
Master Servicer or the Special Servicer with respect to a particular Servicing
Advance, and the Master Servicer and the Special Servicer shall each be entitled
to conclusively rely on any determination of nonrecoverability that may have
been made by the other such party with respect to a particular Servicing
Advance. A copy of any such Officer's Certificate (and, if requested, any such
accompanying information) of the Master Servicer shall also be delivered
promptly to the Special Servicer, a copy of any such Officer's Certificate (and,
if requested, any such accompanying information) of the Special Servicer shall
also be promptly delivered to the Master Servicer, and a copy of any such
Officer's Certificates (and accompanying information) of the Trustee or the
Fiscal Agent shall also be promptly delivered to the Master Servicer, the
Special Servicer and the Controlling Class Representative. In the case of any
Cross-Collateralized Mortgage Loan, any determination regarding whether any
related Servicing Advance constitutes or would constitute a Nonrecoverable
Servicing Advance shall take into account the cross-collateralization of the
related Cross-Collateralized Group.
(i) Notwithstanding anything to the contrary set forth
herein, the Master Servicer may (and, at the direction of the Special Servicer
if a Specially Serviced Mortgage Loan or an
-138-
Administered REO Property is involved, shall) pay directly out of the Collection
Account any servicing expense that, if paid by the Master Servicer or the
Special Servicer, would constitute a Nonrecoverable Servicing Advance; provided
that if the Master Servicer (or the Special Servicer, if a Specially Serviced
Mortgage Loan or an Administered REO Property is involved) has determined in
accordance with the Servicing Standard that making such payment is in the best
interests of the Certificateholders (as a collective whole), as evidenced by an
Officer's Certificate delivered promptly to the Depositor, the Trustee and the
Controlling Class Representative, setting forth the basis for such determination
and, in the case of the Controlling Class Representative and otherwise upon
request, 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 delivered
promptly 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.
(j) If the Master Servicer and the Special Servicer are
responsible for servicing and administering the [Separately Serviced Mortgage
Loan] Loan Group or any [Separately Serviced Mortgage Loan] REO Property under
Article XII, then each of the Master Servicer and the Special Servicer shall be
entitled to such compensation as is provided for in Section 12.09, which shall
be in addition to that provided for in this Section 3.11.
SECTION 3.12. Property Inspections; Collection of
Financial Statements; Delivery of Certain
Reports.
(a) The Special Servicer shall perform or cause to be
performed a physical inspection of a Mortgaged Property as soon as practicable
(but in any event not later than 60 days) after the related Serviced Mortgage
Loan becomes a Specially Serviced Mortgage Loan (and, in cases where the related
Serviced Mortgage Loan has become a Specially Serviced Mortgage Loan, the
Special Servicer shall continue to perform or cause to be performed a physical
inspection of the subject Mortgaged Property at least once per calendar year
thereafter for so long as the related Serviced Mortgage Loan remains a Specially
Serviced Mortgage Loan or if such Mortgaged Property becomes an Administered REO
Property); provided that the Special Servicer shall be entitled to reimbursement
of the reasonable and direct out-of-pocket expenses incurred by it in connection
with each such inspection as Servicing Advances and otherwise as contemplated by
Section 3.05(a). Beginning in ____, the Master Servicer, at its own expense,
shall perform or cause to be performed an inspection of each Mortgaged Property
(other than the [Separately Serviced Mortgage Loan] Mortgaged Property) at least
once every calendar year, in any event if the Special Servicer has not already
done so during that period pursuant to the preceding sentence. The Master
Servicer and the Special Servicer shall each prepare (and, promptly following
preparation, if there has been a material adverse change in the condition of the
subject Mortgaged Property or REO Property, as applicable, deliver to the
Controlling Class Representative) a written report of each such inspection
performed by it or on its behalf that sets forth in detail the condition of the
Mortgaged Property and that specifies the occurrence or existence of: (i) any
sale, transfer or abandonment of the Mortgaged Property the Master Servicer or
the Special Servicer, as applicable, is aware, (ii) any change in the condition,
occupancy or value of the Mortgaged Property of which the Master Servicer or the
Special Servicer, as applicable, is aware and that it considers, in accordance
with the Servicing Standard, material, or (iii) any waste committed on the
Mortgaged Property of which the Master Servicer or the Special Servicer, as the
case may be, is aware and that it considers, in accordance with the Servicing
Standard, material. The Master Servicer and the Special Servicer shall each
deliver to the other such party, to the Controlling Class Representative and,
upon
-139-
request, to the Trustee a copy (or image in suitable electronic media) of each
such written report prepared by the Master Servicer or the Special Servicer, as
applicable, in each case within 30 days following the later of completion of the
related inspection if the inspection is performed by the Master Servicer or
Special Servicer, as appropriate, or receipt of the related inspection report if
the inspection is performed by a third party.
(b) Commencing with respect to the calendar quarter ended
__________, ____, the Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Master Servicer, in the case of each Performing Serviced
Mortgage Loan, shall make reasonable efforts to collect promptly from each
related Borrower quarterly and annual operating statements, budgets and rent
rolls of the related Mortgaged Property, and quarterly and annual financial
statements of such Borrower, whether or not delivery of such items is required
pursuant to the terms of the related Mortgage Loan Documents. In addition, the
Special Servicer shall cause quarterly and annual operating statements, budgets
and rent rolls to be regularly prepared in respect of each Administered REO
Property and shall collect all such items promptly following their preparation.
The Special Servicer shall deliver a copy or images in suitable electronic media
of all of the foregoing items so collected or obtained by it to the Master
Servicer within 30 days of its receipt thereof. The Master Servicer shall
deliver at least quarterly all items required to be delivered to it by the
Special Servicer pursuant to the second preceding sentence to the Controlling
Class Representative and, upon request, the Trustee.
The Master Servicer shall maintain a CMSA Operating Statement
Analysis Report with respect to each Mortgaged Property and REO Property. Within
60 days after receipt by the Master Servicer from the related Borrower or
otherwise, as to a Performing Serviced Mortgage Loan, and within 30 days after
receipt by the Master Servicer from the Special Servicer, the [Separately
Serviced Mortgage Loan] Master Servicer, the [Separately Serviced Mortgage Loan]
Special Servicer or otherwise, as to the [Separately Serviced Mortgage Loan], a
Specially Serviced Mortgage Loan or an REO Property, of any quarterly and annual
operating statements or rent rolls with respect to any Mortgaged Property or REO
Property, the Master Servicer shall, based upon such operating statements or
rent rolls, prepare (or, if previously prepared, update) the CMSA Operating
Statement Analysis Report for the subject Mortgaged Property or REO Property.
The Master Servicer shall remit a copy of each CMSA Operating Statement Analysis
Report prepared or updated by it (promptly following initial preparation and
each update thereof), together with, if so requested, the underlying operating
statements, rent rolls and copies of any leases entered into by each Borrower
during such quarter and received by the Master Servicer, to the Controlling
Class Representative, the Special Servicer and, upon request, the Trustee. The
Trustee shall, upon request, request from the Master Servicer (if necessary)
and, to the extent such items have been delivered to the Trustee by the Master
Servicer, deliver to any Certificateholder or, if the Trustee has in accordance
with Section 5.06(b) confirmed the Ownership Interest in the Certificates held
thereby, any Certificate Owner, a copy of the CMSA Operating Statement Analysis
(or update thereof) for any Mortgaged Property or REO Property and, if
requested, the related operating statement or rent rolls; provided that the
Trustee may direct the Master Servicer to deliver such items directly to the
requesting Certificateholder or Certificate Owner, as the case may be.
Within 60 days (or, in the case of items received from the
Special Servicer, the [Separately Serviced Mortgage Loan] Master Servicer, the
[Separately Serviced Mortgage Loan] Special Servicer or otherwise with respect
to the [Separately Serviced Mortgage Loan], Specially Serviced Mortgage Loans
and REO Properties, 30 days) after receipt by the Master Servicer of any
quarterly or annual operating statements with respect to any Mortgaged Property
or REO Property, the Master
-140-
Servicer shall prepare or update and forward to the Special Servicer, the
Controlling Class Representative and, upon request, the Trustee a CMSA NOI
Adjustment Worksheet using the same format as the CMSA Operating Statement
Analysis Report for such Mortgaged Property or REO Property, together with the
related quarterly or annual operating statements.
(c) Not later than 2:00 p.m. (New York City time) on the
first Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer and, upon
request, the Controlling Class Representative the following reports (or data
files relating to reports of the Master Servicer) with respect to any Specially
Serviced Mortgage Loans and Administered REO Properties that are then part of
the Trust Fund, providing the required information as of such Determination
Date: (i) a CMSA Property File; and (ii) a CMSA Loan Periodic Update File
(which, in each case, if applicable, will identify each subject Mortgage Loan by
loan number and property name). At or before 2:00 p.m. (New York City time) on
the first Business Day following each Determination Date, the Special Servicer
shall prepare and deliver or cause to be delivered to the Master Servicer the
following reports or the related data fields reflected in the reports reasonably
requested with respect to those Specially Serviced Mortgage Loans and
Administered REO Properties that are then part of the Trust Fund, providing the
information required of the Special Servicer pursuant to Section 3.12(e) as of
such Determination Date: (i) a CMSA Delinquent Loan Status Report; (ii) a CMSA
Comparative Financial Status Report; (iii) a CMSA Historical Liquidation Report;
(iv) a CMSA Historical Loan Modification Report; and (v) a CMSA REO Status
Report. In addition, the Special Servicer shall from time to time provide the
Master Servicer with such information in the Special Servicer's possession
regarding any Specially Serviced Mortgage Loan or REO Property as may be
requested by the Master Servicer and is reasonably necessary for the Master
Servicer to prepare each report and any supplemental information required to be
provided by the Master Servicer to the Trustee.
(d) Not later than 3:00 p.m. (New York City time) on the
second Business Day following each Determination Date, the Master Servicer, with
respect to all of the Mortgage Loans and REO Properties, shall prepare (if and
to the extent necessary) and deliver or cause to be delivered to the Trustee, in
a computer-readable medium downloadable by the Trustee (or, at the Trustee's
written request, in a form reasonably acceptable to the recipient, including on
a loan-by-loan basis), each of the files and reports comprising the CMSA
Investor Reporting Package (excluding any CMSA Operating Statement Analysis
Report, any CMSA NOI Adjustment Worksheet, the CMSA Bond Level File and the CMSA
Collateral Summary File), in each case providing the most recent information
with respect to the subject Mortgage Loans and REO Properties as of the related
Determination Date (and which, in each case, if applicable, will identify each
subject Mortgage Loan by loan number and property name); provided that the
Master Servicer shall not be required to prepare and deliver any of the files
and reports comprising the CMSA Investor Reporting Package (other than the CMSA
Loan Periodic Update File) before the second Business Day following the second
Determination Date following the Closing Date.
Notwithstanding any other provision in this Agreement, the
Master Servicer, the Special Servicer and the Trustee shall deliver to the
Controlling Class Representative the reports (including the Payments Received
after Determination Date Report and the Mortgage Loans Delinquent Report) and
information set forth on Exhibit E-3 in the format and at the times set forth
therein.
(e) The Special Servicer shall deliver to the Master
Servicer the reports set forth in Section 3.12(b) and Section 3.12(c), and the
Master Servicer shall deliver to the Trustee the reports set
-141-
forth in Section 3.12(d), in an electronic format reasonably acceptable to the
Special Servicer, 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) and Section 3.12(c). The Trustee
may, absent manifest error, conclusively rely on the reports to be provided by
the Master Servicer pursuant to Section 3.12(d). To the extent that any report
to be prepared and provided to the Trustee and/or the Controlling Class
Representative by the Master Servicer pursuant to Section 3.12(d) is dependent
on information from the Special Servicer (or, in the case of the [Separately
Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Property,
from a party under a [Separately Serviced Mortgage Loan] Servicing Agreement),
and the Special Servicer (or, if applicable, such party under such [Separately
Serviced Mortgage Loan] Servicing Agreement) has not timely provided such
information to the Master Servicer, the Master Servicer shall on a timely basis
provide to the Trustee and/or the Controlling Class Representative, as
applicable, as complete a report as the information provided by the Special
Servicer (or, if applicable, by such party under such [Separately Serviced
Mortgage Loan] Servicing Agreement) permits and shall promptly update and
provide to the Trustee and/or the Controlling Class Representative, as
applicable, a complete report when the Special Servicer (or, if applicable, such
party under such [Separately Serviced Mortgage Loan] Servicing Agreement)
provides the Master Servicer with the requisite missing information; and the
Master Servicer shall not be in breach hereunder for so providing an incomplete
report under Section 3.12(d) under the foregoing circumstances. Furthermore, if
any report to be provided to the Trustee and/or the Controlling Class
Representative by the Master Servicer pursuant to Section 3.12(d) was to be
prepared by the Special Servicer (or, in the case of the [Separately Serviced
Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Property, by a
party under a [Separately Serviced Mortgage Loan] Servicing Agreement) and
delivered to the Master Servicer, the Master Servicer shall not be in breach by
reason of any delay in its delivery of such report to the Trustee and/or the
Controlling Class Representative, as applicable, by reason of a delay on the
part of the Special Servicer (or, if applicable, on the part of such party under
such [Separately Serviced Mortgage Loan] Servicing Agreement) to deliver such
report to the Master Servicer; and the Master Servicer shall deliver as promptly
as reasonably practicable to the Trustee and/or the Controlling Class
Representative, as applicable, any such report that it receives from the Special
Servicer (or, if applicable, from such party under such [Separately Serviced
Mortgage Loan] Servicing Agreement) after the requisite delivery date.
(f) Notwithstanding the foregoing, however, the failure
of the Master Servicer or the Special Servicer to disclose any information
otherwise required to be disclosed by this Section 3.12 shall not constitute a
breach of this Section 3.12 to the extent the Master Servicer or the Special
Servicer so fails because such disclosure, in the reasonable belief of the
Master Servicer or the Special Servicer, as the case may be, would violate any
applicable law or any provision of a Mortgage Loan Document prohibiting
disclosure of information with respect to the Mortgage Loans or Mortgaged
Properties or would constitute a waiver of the attorney-client privilege on
behalf of the Trust. The Master Servicer and the Special Servicer may each
disclose any such information or any additional information to any Person so
long as such disclosure is consistent with applicable law and the Servicing
Standard. The Master Servicer and the Special Servicer may each affix to any
information provided by it any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(g) The Depositor shall provide (or, pursuant to the
respective Mortgage Loan Purchase Agreements shall obligate the Mortgage Loan
Sellers to provide) to the Master Servicer the initial data (as of the Cut-off
Date or the most recent earlier date for which such data is available)
-142-
necessary to complete the CMSA Loan Set-up File, the CMSA Loan Periodic Update
File, the CMSA Operating Statement Analysis Report and the CMSA Property File.
(h) If the Master Servicer or the Special Servicer is
required to deliver any statement, report or information under any provision of
this Agreement, the Master Servicer or the Special Servicer, as the case may be,
may satisfy such obligation by (x) physically delivering a paper copy of such
statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on the Master Servicer's Internet Website or the
Trustee's Internet Website, unless this Agreement expressly specifies a
particular method of delivery. Notwithstanding the foregoing, the Trustee may
request delivery in paper or electronic format of any statement, report or
information required to be delivered to the Trustee, and clause (z) shall not
apply to the delivery of any information required to be delivered to the Trustee
unless the Trustee consents to such delivery. Notwithstanding any other
provision of this Agreement to the contrary, if any portion of the CMSA Investor
Reporting Package is not timely delivered in electronic format to the Trustee,
then the Trustee shall not be in default of its obligations under Section 4.02
of this Agreement so long as it is undertaking commercially reasonable efforts
to perform such obligations.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall
deliver to the Trustee, the Depositor, the Underwriters and the Controlling
Class Representative, on or before May 1 of each year, beginning in ____, 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
and of its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Master Servicer or the Special Servicer, as the case may be, has fulfilled
all of its obligations under this Agreement in all material respects throughout
such year (or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof), and (iii) the Master Servicer or the Special Servicer, as
the case may be, has received no notice regarding the qualification, or
challenging the status, of any REMIC Pool as a REMIC or either Grantor Trust
Pool as a Grantor Trust from the IRS or any other governmental agency or body
(or, if it has received any such notice, specifying the details thereof);
provided that the Master Servicer and the Special Servicer shall each be
required to deliver its Annual Performance Certification by March 15 in ____ or
in any given year thereafter if, in the case of any year subsequent to ____, it
has received written confirmation from the Trustee or the Depositor by January
31 of that year that a Report on Form 10-K is required to be filed in respect of
the Trust for the preceding calendar year.
SECTION 3.14. Reports by Independent Public Accountants.
On or before May 1 of each year, beginning in ____, each of
the Master Servicer and Special Servicer, at its expense, shall cause a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement (the "Annual Accountants'
Report") to the Trustee, the Depositor, the Underwriters and the Controlling
Class Representative, to the effect that such firm has examined the servicing
operations of the Master Servicer or the Special Servicer, as the case may be,
for the previous calendar year and that, on the basis of such examination,
conducted substantially in compliance with USAP, such firm confirms that the
Master Servicer or the
-143-
Special Servicer, as the case may be, has complied during such previous calendar
year with the minimum servicing standards (to the extent applicable to
commercial and multifamily mortgage loans) identified in USAP in all material
respects, except for such significant exceptions or errors in records that, in
the opinion of such firm, USAP requires it to report; provided that the Master
Servicer and the Special Servicer shall each be required to cause the delivery
of its Annual Accountants' Report by March 15 in ____ or in any given year
thereafter if, in the case of any year subsequent to ____, it has received
written confirmation from the Trustee or the Depositor by January 31 of that
year that an Annual Report on Form 10-K is required to be filed in respect of
the Trust for the preceding calendar year. In rendering its report such firm may
rely, as to matters relating to the direct servicing of securitized commercial
and multifamily mortgage loans by sub-servicers, upon comparable reports of
firms of independent certified public accountants rendered on the basis of
examinations conducted in accordance with the same standards (rendered within
one year of such report) with respect to those sub-servicers.
Each of the Master Servicer and the Special Servicer will
reasonably cooperate with the Depositor in providing any other form of
accountants' reports as may be required by the Commission in connection with the
Commission's issuance of a no-action letter relating to the Depositor's
reporting requirements in respect of the Trust pursuant to the Exchange Act, and
the reasonable additional costs of providing such other forms of accountants'
reports shall be borne by the Depositor.
SECTION 3.15. Access to Certain Information.
(a) The Master Servicer and the Special Servicer shall
each provide or cause to be provided to the other such party, the Depositor, the
Trustee, the Controlling Class Representative and the Rating Agencies, and to
the OTS, the FDIC and any other federal or state banking or insurance regulatory
authority that may exercise authority over any Certificateholder or Certificate
Owner, access to any documentation regarding the Mortgage Loans and the other
assets of the Trust Fund that are within its control, except to the extent that
(i) such documentation is subject to a claim of privilege under applicable law
that has been asserted by the Certificateholders and of which the Master
Servicer or the Special Servicer, as applicable, has received written notice or
(ii) the Master Servicer or the Special Servicer, as applicable, is otherwise
prohibited from making such disclosure under applicable law, or may be subject
to liability for making such disclosure in the reasonable opinion of the counsel
for the Master Servicer or the Special Servicer, as applicable, which counsel
may be a salaried employee of the Master Servicer or the Special Servicer. Such
access shall be afforded without charge but 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. However, the
Master Servicer and the Special Servicer each may charge for any copies
requested by said Persons (other than the Rating Agencies and, to the extent
that the requested number of copies is reasonably limited and the request is not
duplicative, the Controlling Class Representative). The Master Servicer and the
Special Servicer each shall be permitted to affix a reasonable disclaimer to any
information provided by it pursuant to this Section 3.15.
(b) Upon the request of the Controlling Class
Representative made not more frequently than once a month (which request may be
a standing, continuing request), or at such mutually acceptable time each month
as the Controlling Class Representative shall reasonably designate, each of the
Master Servicer and Special Servicer shall, without charge, make a knowledgeable
Servicing Officer available, at the option of the Controlling Class
Representative either by telephone or at the office of
-144-
such Servicing Officer, to answer questions from the Controlling Class
Representative regarding the performance and servicing of the Serviced Mortgage
Loans and/or the Administered REO Properties for which the Master Servicer or
Special Servicer, as the case may be, is responsible.
SECTION 3.16. Title to Administered REO Property; REO
Account.
(a) If title to any Mortgaged Property (other than the
[Separately Serviced Mortgage Loan] Mortgaged Property) is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders or, subject to Section 3.09(b), at the option of the
Special Servicer, to a single member limited liability company of which the
Trust is the sole member, which limited liability company is formed or caused to
be formed by the Special Servicer at the expense of the Trust for the purpose of
taking title to one or more Mortgaged Properties (other than the [Separately
Serviced Mortgage Loan] Mortgaged Property) pursuant to this Agreement. Any such
limited liability company formed by the Special Servicer 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 Administered 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 shall sell or cause the sale
of any Administered REO Property by the end of the third taxable year following
the year in which the Trust acquires ownership of such REO Property for purposes
of Section 860G(a)(8) of the Code, unless the Special Servicer either (i)
applies, more than 60 days prior to the expiration of such liquidation period,
and is granted an extension of time (an "REO Extension") by the Internal Revenue
Service to sell such REO Property or (ii) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee, to the effect that the holding by the Trust
of such REO Property subsequent to the end of the third taxable year following
the year in which such acquisition occurred, will not result in the imposition
of taxes on "prohibited transactions" of any REMIC Pool as defined in Section
860F of the Code or cause any REMIC Pool to fail to qualify as a REMIC at any
time that any Certificates are outstanding. Regardless of whether 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
act in accordance with the Servicing Standard to liquidate the subject
Administered REO Property on a timely basis. If the Special Servicer is granted
such REO Extension or obtains such Opinion of Counsel with respect to any
Administered REO Property, the Special Servicer shall (i) promptly forward a
copy of such REO Extension or Opinion of Counsel to the Trustee, and (ii) sell
such REO Property within such extended period as is permitted by such REO
Extension or contemplated by such Opinion of Counsel, as the case may be. Any
reasonable expense incurred by the Special Servicer in connection with its
applying for the REO Extension contemplated by clause (i) of the third preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the third preceding sentence, and for the creation of and the operating of a
limited liability company to hold any Administered REO Property, shall be
covered by and reimbursable as a Servicing Advance. Any REO Extension shall be
requested by the Special Servicer no later than 60 days before the end of the
third taxable year following the year in which the Trust acquired ownership of
the subject Administered REO Property.
(b) The Special Servicer shall segregate and hold all
funds collected and received by it in connection with any Administered REO
Property separate and apart from its own funds and general assets. If an REO
Acquisition shall occur, then the Special Servicer shall establish and maintain
one or more accounts (collectively, the "REO Account"), to be 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
-145-
Administered REO Property. The REO Account shall be an Eligible Account and may
consist of one account for all the Administered REO Properties. The Special
Servicer shall deposit, or cause to be deposited, in the REO Account, within one
(1) Business Day of receipt, all REO Revenues, Liquidation Proceeds (net of all
Liquidation Expenses paid therefrom), Condemnation Proceeds and Insurance
Proceeds received by it in respect of an Administered REO Property. The Special
Servicer is authorized to pay out of related Liquidation Proceeds any
Liquidation Expenses incurred in respect of an Administered REO Property and
outstanding at the time such proceeds are received, as well as any other items
that otherwise may be paid by the Master Servicer out of such Liquidation
Proceeds as contemplated by Section 3.05(a). Funds in the REO Account may be
invested in Permitted Investments in accordance with Section 3.06. The Special
Servicer shall be entitled to make withdrawals from the REO Account to pay
itself, as Additional Special Servicing Compensation, interest and investment
income earned in respect of amounts held in the REO Account as provided in
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to the REO Account for any Collection Period). The Special Servicer
shall give notice to the other parties hereto of the location of the REO Account
when first established and of the new location of the REO Account prior to any
change thereof.
(c) The Special Servicer shall withdraw from the REO
Account funds necessary for the proper operation, management, leasing,
maintenance and disposition of any Administered REO Property, but only to the
extent of amounts on deposit in the REO Account relating to such REO Property.
Five (5) Business Days prior to each Determination Date, and again on the first
Business Day following such Determination Date, the Special Servicer shall
withdraw from the REO Account and deposit into the Collection Account or deliver
to the Master Servicer, which shall deposit such amounts into the Collection
Account, the aggregate of all amounts received in respect of each Administered
REO Property during the Collection Period ending on such Determination Date that
are then on deposit in such REO Account, net of any withdrawals made out of such
amounts pursuant to the preceding sentence; provided that in the case of each
Administered REO Property, the Special Servicer may retain in the REO Account
such portion of such proceeds and collections as may be necessary to maintain a
reserve of sufficient funds for the proper operation, management, leasing,
maintenance and disposition of such REO Property (including the creation of a
reasonable reserve for repairs, replacements, necessary capital improvements and
other related expenses), such reserve not to exceed an amount sufficient to
cover such items reasonably expected to be incurred during the following
twelve-month period.
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, the REO Account pursuant to Section 3.16(b)
or 3.16(c).
SECTION 3.17. Management of Administered REO Property.
(a) Prior to the acquisition of title to any Mortgaged
Property securing a defaulted Serviced Mortgage Loan, 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. 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
-146-
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;
(ii) Directly Operating such Mortgaged Property
as an REO Property could result in income from such property that would
be subject to an REO Tax, but that a lease of such property to another
party to operate such property, or the performance of some services by
an Independent Contractor with respect to such property, or another
method of operating such property would not result in income subject to
an REO Tax, then the Special Servicer may (provided that in the
reasonable judgment of the Special Servicer, it is commercially
reasonable) so lease or operate such REO Property; or
(iii) It would not be commercially reasonable to
operate and manage such property as REO Property without the Trust
incurring or possibly incurring an REO Tax on income from such
property, then the Special Servicer shall deliver to the Trustee and
the Controlling Class Representative, in writing, a proposed plan (the
"Proposed Plan") to manage such property as REO Property. Such plan
shall include potential sources of income, and to the extent reasonably
possible, estimates of the amount of income from each such source.
Within a reasonable period of time after receipt of such plan, the
Trustee shall consult with the Special Servicer and shall advise the
Special Servicer of the Trust's federal income tax reporting position
with respect to the various sources of income that the Trust would
derive under the Proposed Plan. In addition, the Trustee shall (to the
maximum extent reasonably possible and at a reasonable fee) advise the
Special Servicer of the estimated amount of taxes that the Trust would
be required to pay with respect to each such source of income from such
REO Property. After receiving the information described in the two
preceding sentences from the Trustee, the Special Servicer shall either
(A) implement the Proposed Plan (after acquiring the respective
Mortgaged Property as REO Property) or (B) manage and operate such
property in a manner that would not result in the imposition of an REO
Tax on the income derived from such property.
Subject to Sections 3.16(a) and 3.17(b), the Special
Servicer's decision as to how each REO Property shall be managed and operated
shall be in accordance with the Servicing Standard. Both the Special Servicer
and the Trustee may consult with counsel knowledgeable in such matters at (to
the extent reasonable) the expense of the Trust in connection with
determinations required under this Section 3.17(a) with respect to any
Administered REO Property. Neither the Special Servicer nor the Trustee shall be
liable to the Certificateholders, the Trust, the other parties hereto or each
other for errors in judgment made in good faith in the reasonable exercise of
their discretion or in reasonable and good faith reliance on the advice of
knowledgeable counsel while performing their respective responsibilities under
this Section 3.17(a) or, to the extent it relates to federal income tax
consequences for the Trust, Section 3.17(b) below. Nothing in this Section
3.17(a) is intended to prevent the sale of an Administered REO Property pursuant
to the terms and subject to the conditions of Section 3.18(d).
(b) If title to any Mortgaged Property (other than
the[Separately Serviced Mortgage Loan] Mortgaged Property) is acquired, the
Special Servicer shall manage, conserve, protect and operate such Mortgaged
Property for the benefit of the Certificateholders solely for the purpose of its
prompt disposition and sale in a manner that does not cause such Mortgaged
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or, except as contemplated by Section 3.17(a),
result in the receipt by any REMIC Pool of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or in an Adverse
REMIC Event in respect of
-147-
any REMIC Pool. Except as provided in Section 3.17(a), the Special Servicer
shall not enter into any lease, contract or other agreement with respect to any
Administered REO Property that causes any REMIC Pool to receive, and (unless
required to do so under any lease, contract or agreement to which the Special
Servicer or the Trust may become a party or successor to a party due to a
foreclosure, deed-in-lieu of foreclosure or other similar exercise of a
creditor's rights or remedies with respect to a Serviced Mortgage Loan) shall
not cause or allow any REMIC Pool to receive any "net income from foreclosure
property" with respect to any Administered REO Property that is subject to
taxation under the REMIC Provisions. Subject to the foregoing, Section 3.16(a)
and Section 3.17(a), however, the Special Servicer shall have full power and
authority to do any and all things in connection with the administration of any
Administered REO Property as are consistent with the Servicing Standard and,
consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, maintenance and disposition of such REO
Property, including:
(i) all insurance premiums due and payable in
respect of such REO Property;
(ii) all real estate taxes and assessments in
respect of such REO Property that may result in the imposition of a
lien thereon;
(iii) any ground rents in respect of such REO
Property; and
(iv) all other costs and expenses necessary to
maintain, lease, sell, protect, manage, operate and restore such REO
Property.
To the extent that amounts on deposit in the 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 Special Servicer shall
(in accordance with Section 3.19(b)) direct the Master Servicer to make (and the
Master Servicer shall so make), Servicing Advances in such amounts as are
necessary for such purposes unless (as evidenced in the manner contemplated by
Section 3.11(h)) the Special Servicer or the Master Servicer determines, in its
reasonable judgment, that such payment would be a Nonrecoverable Servicing
Advance.
(c) The Special Servicer may (and, except as otherwise
permitted by Section 3.17(a), shall if it would avoid an Adverse REMIC Event)
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 may not be inconsistent herewith and shall reflect an
agreement reached at arm's length;
(ii) the fees of such Independent Contractor
(which shall be expenses of the Trust) shall be reasonable and
customary in consideration of the nature and locality of such REO
Property;
(iii) any such contract shall be consistent with
the provisions of Treasury regulation section 1.856-4(b)(5) and, to the
extent consistent therewith, shall be administered to require that the
Independent Contractor, in a timely manner, (A) to the extent of
available revenue from such REO Property, pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed in Section 3.17(b)
-148-
above, and (B) remit all related revenues collected (net of its fees
and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section
3.17(c) relating to any such contract or to actions taken through any
such Independent Contractor shall be deemed to relieve the Special
Servicer of any of its duties and obligations hereunder with respect to
the operation and management of any such REO Property; and
(v) the Special Servicer shall be obligated 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, and the Special Servicer shall comply with the
Servicing Standard in monitoring such Independent Contractor.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
SECTION 3.18. Fair Value Option; Sale of Administered REO
Properties.
(a) The parties hereto may sell or purchase, or permit
the sale or purchase of, a Mortgage Loan or Administered REO Property only on
the terms and subject to the conditions set forth in this Section 3.18 or as
otherwise expressly provided in or contemplated by Section 2.03, Section 9.01
and/or the related Mortgage Loan Documents (including, in the case of the
[Separately Serviced Mortgage Loan], the [Separately Serviced Mortgage Loan]
Intercreditor Agreements).
(b) If any Serviced Mortgage Loan becomes a Specially
Designated Defaulted Mortgage Loan, then the Special Servicer shall promptly so
notify in writing the Trustee, the Controlling Class Representative and the
Master Servicer, and shall concurrently, or as soon as reasonably practical
(and, in any event, within 30 days) thereafter, make a Fair Value Determination
with respect to such Mortgage Loan based on the most recent Appraisal in respect
of the related Mortgaged Property then in the Special Servicer's possession,
together with such other third-party reports and other information then in the
Special Servicer's possession that the Special Servicer reasonably believes to
be relevant to the Special Servicer's Fair Value Determination with respect to
such Mortgage Loan, including information regarding any change in circumstances
regarding the related Mortgaged Property known to the Special Servicer that has
occurred subsequent to, and that would materially affect the value of the
related Mortgaged Property reflected in, the most recent Appraisal of the
related Mortgaged Property in the related Servicing File; provided that, if the
Special Servicer is then in the process of obtaining a new Appraisal with
respect to the related Mortgaged Property pursuant to Section 3.19(c), then the
Special Servicer shall make its Fair Value Determination with respect to such
Mortgage Loan in accordance with the Servicing Standard as soon as reasonably
practicable (but in any event within 30 days) after the Special Servicer's
receipt of such new Appraisal. In determining the Fair Value of any Specially
Designated Defaulted Mortgage Loan, the Special Servicer shall take into
account, among other factors, the period and amount of the delinquency on such
Mortgage Loan, the occupancy level and physical condition of the related
Mortgaged Property, the state of the local economy and the commercial real
estate market in the area where the related Mortgaged Property is located, and
the time and expense associated with and the expected recovery from a
purchaser's foreclosing on the related Mortgaged Property or working out such
Mortgage Loan, but shall ignore the purchase option provided for in
-149-
Section 3.18(c). In addition, the Special Servicer shall refer to all relevant
information contained in the Servicing File, including the most recent Appraisal
obtained or conducted with respect to the related Mortgaged Property in the
preceding 12-month period in accordance with this Agreement, and shall not
determine the Fair Value of any Specially Designated Defaulted Mortgage Loan
without such an Appraisal; provided that the Special Servicer shall take account
of any change in circumstances regarding the related Mortgaged Property known to
the Special Servicer that has occurred subsequent to, and that would, in the
Special Servicer's reasonable judgment, materially affect the value of the
related Mortgaged Property reflected in, such Appraisal. Furthermore, the
Special Servicer shall consider available objective third-party information
obtained from generally available sources, as well as information obtained from
vendors providing real estate services to the Special Servicer, concerning the
market for distressed real estate loans and the real estate market for the
subject property type in the area where the related Mortgaged Property is
located. The Special Servicer may, to the extent it is reasonable to do so in
accordance with the Servicing Standard, conclusively rely on any opinions or
reports of qualified Independent experts in real estate or commercial mortgage
loan matters with at least five years' experience in valuing or investing in
loans similar to the subject Specially Designated Defaulted Mortgage Loan,
selected with reasonable care by the Special Servicer, in making such
determination. All reasonable costs and expenses incurred by the Special
Servicer pursuant to this Section 3.18(b) shall constitute, and be reimbursable
as, Servicing Advances. The other parties to this Agreement shall cooperate with
all reasonable requests for information made by the Special Servicer in order to
allow the Special Servicer to perform its duties pursuant to this Section
3.18(b).
Notwithstanding the foregoing, in the event that the Special
Servicer or any Affiliate of the Special Servicer exercises the purchase option
described in Section 3.18(c) with respect to any Specially Designated Defaulted
Mortgage Loan, including as a Controlling Class Certificateholder or as the
assignee of another option holder, then the Master Servicer will be required to
confirm that the Special Servicer's Fair Value Determination of such Specially
Designated Defaulted Mortgage Loan is no less than the amount that the Master
Servicer considers to be the fair value of such Specially Designated Defaulted
Mortgage Loan (such confirmation to be made within 10 days (or, if an
Independent expert is to be retained as contemplated below, 20 days) after
receipt of the Special Servicer's Fair Value Determination, together with the
Appraisal and other information contemplated in the next sentence); provided
that, if the Master Servicer is also acting as, or is an Affiliate of, the
Special Servicer, then the Trustee, instead of the Master Servicer, shall so
confirm the Special Servicer's Fair Value Determination. In such event, the
Special Servicer shall promptly deliver to the Master Servicer or the Trustee,
as applicable in accordance with the foregoing sentence, the most recent
Appraisal in respect of the related Mortgaged Property then in the Special
Servicer's possession, together with such other third-party reports (including
any determination of an Independent real estate expert) and other information
then in the Special Servicer's possession that the Master Servicer or Trustee
reasonably believes to be relevant to the Master Servicer's or Trustee's, as the
case may be, confirmation of the Special Servicer's Fair Value Determination
with respect to such Mortgage Loan, including information regarding any change
in circumstances regarding the related Mortgaged Property known to the Special
Servicer that has occurred subsequent to, and that would materially affect the
value of the related Mortgaged Property reflected in, the most recent Appraisal
of the related Mortgaged Property in the related Servicing File. Notwithstanding
the foregoing, and if the Special Servicer has not already done so, the Master
Servicer or the Trustee, as the case may be, may (at its option) designate a
qualified Independent expert in real estate or commercial mortgage loan matters
with at least five years' experience in valuing or investing in loans similar to
the subject Specially Designated Defaulted Mortgage Loan, selected with
reasonable care by the Master Servicer or the Trustee, as the case may be,
-150-
to confirm that the Special Servicer's Fair Value Determination is consistent
with or greater than what the Independent expert considers to be the fair value
of such Mortgage Loan. If the Master Servicer, the Trustee or the Special
Servicer designates such an Independent expert to make such determination in
accordance with this paragraph, the Master Servicer or Trustee, as the case may
be, shall be entitled to rely upon such Independent expert's determination. The
reasonable costs of all third party opinions of value and any appraisals and
inspection reports incurred by the Master Servicer or Trustee, as the case may
be, pursuant to this paragraph shall be advanced by the Master Servicer or
Trustee, as the case may be, and shall constitute, and be reimbursable as,
Servicing Advances. In addition, the Master Servicer or the Trustee, as the case
may be, shall be entitled to receive out of the Collection Account a $__________
fee for the initial confirmation of the Special Servicer's Fair Value
Determination (but no fee for any subsequent confirmation of the Special
Servicer's Fair Value Determination required by Section 3.18(c)(vi) below) that
is made by it with respect to any Specially Designated Defaulted Mortgage Loan,
in accordance with this Section 3.18(b).
(c) Promptly following its determination of the Fair
Value of any Specially Designated Defaulted Mortgage Loan in accordance with
Section 3.18(b), the Special Servicer shall deliver to the Master Servicer and
the Trustee an Officer's Certificate setting forth such Fair Value
Determination. Within five Business Days of the Special Servicer's providing the
Trustee with the Special Servicer's determination of the Fair Value of any
Specially Designated Defaulted Mortgage Loan in accordance with Section 3.18(b),
the Trustee shall promptly notify all of the Controlling Class
Certificateholders of such Fair Value Determination. Upon being informed of the
Special Servicer's initial Fair Value Determination with respect to any
Specially Designated Defaulted Mortgage Loan, any single Holder or group of
Holders of Certificates representing a majority of the Voting Rights allocated
to the Controlling Class may, at its or their option, purchase such Mortgage
Loan from the Trust, at a cash price equal to the Special Servicer's
determination of Fair Value for such Mortgage Loan; provided that:
(i) the foregoing purchase option will last only
until the earliest of (A) the date on which such Mortgage Loan becomes
a Corrected Serviced Mortgage Loan or otherwise ceases to be at least
60 days' delinquent, (B) the date on which a Liquidation Event occurs
with respect to such Mortgage Loan or the related Mortgaged Property
becomes an REO Property, and (C) the second anniversary of the date on
which such Mortgage Loan first became a Specially Designated Defaulted
Mortgage Loan (the period during which any Specially Designated
Defaulted Mortgage Loan is eligible for purchase pursuant to this
Section 3.18(c) is herein referred to as the "Purchase Option Period"
for such Mortgage Loan);
(ii) any single Holder or group of Holders of
Certificates representing a majority of the Voting Rights allocated to
the Controlling Class may assign the foregoing option to any third
party;
(iii) if the foregoing purchase option has not
been exercised by any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the
Controlling Class or any assignee thereof by the 60th day of the
applicable Purchase Option Period, then the foregoing purchase option
shall automatically be assigned, for a 30-day period only, to the
Special Servicer;
-151-
(iv) at any time during the 30-day period
referred to in the immediately preceding clause (iii), the Special
Servicer may exercise the foregoing purchase option or, for the
remainder of such 30-day period, may assign the foregoing purchase
option to any third party;
(v) if the foregoing purchase option has not
been exercised by the Special Servicer or any assignee thereof during
the 30-day period referred to in the immediately preceding clauses
(iii) and (iv), then the foregoing purchase option shall automatically
revert to the Holder or group of Holders of Certificates representing a
majority of the Voting Rights allocated to the Controlling Class, who
will again have the option of assigning the foregoing purchase option
to any third party;
(vi) if any single Holder or group of Holders of
Certificates representing a majority of the Voting Rights allocated to
the Controlling Class or any assignee thereof desires to exercise the
foregoing purchase option more than three months after the Special
Servicer's most recent Fair Value Determination with respect to the
subject Specially Designated Defaulted Mortgage Loan, then the Special
Servicer shall, in accordance with Section 3.18(b), redetermine (and
the Master Servicer or Trustee, as applicable, shall, in accordance
with Section 3.18(b), if necessary, reconfirm the Special Servicer's
determination of) the Fair Value of the subject Specially Designated
Defaulted Mortgage Loan, which redetermined (and, if necessary,
reconfirmed) Fair Value shall thereafter become the new price for the
foregoing purchase option; and
(vii) if, and for so long as, the Depositor and/or
its Affiliates and agents, or any Mortgage Loan Seller and/or its
Affiliates and agents, shall at any time be the Majority Controlling
Class Certificateholder(s), then the Depositor or such Mortgage Loan
Seller may, solely as to itself and its Affiliates and agents, waive
the right to exercise the foregoing purchase option as to any
particular Serviced Mortgage Loan by delivering written notice to that
effect to the Trustee, the Master Servicer and the Special Servicer at
any time prior to, or within 15 days following, such Mortgage Loan's
becoming a Specially Designated Defaulted Mortgage Loan (it being
understood and agreed that such waiver shall be made on a loan-by-loan
basis, shall not affect the right of the Depositor and/or its
Affiliates and agents, or such Mortgage Loan Seller and/or its
Affiliates and agents, as the case may be, to assign the foregoing
purchase option with respect to the subject Mortgage Loan to an
independent third party and shall remain in effect only until the
Depositor and/or its Affiliates and agents, or such Mortgage Loan
Seller and/or its Affiliates and agents, as the case may be, are no
longer the Majority Controlling Class Certificateholder(s).
Exercise of the purchase option in respect of any Specially
Designated Defaulted Mortgage Loan in accordance with this Section 3.18(c) shall
be effected by giving written notice to that effect to the Trustee, the Master
Servicer and, unless it is the party exercising such purchase option, the
Special Servicer. The price payable for any Specially Designated Defaulted
Mortgage Loan purchased under this Section 3.18(c) must be delivered to the
Master Servicer within 15 days of the prospective purchaser's delivery of such
notice (or, if later, within 15 days of the determination and, if necessary,
confirmation of, any updated Fair Value of such Specially Designated Defaulted
Mortgage Loan in accordance with Section 3.18(c)(vi) above) or such exercise of
the purchase option for such Specially Designated Defaulted Mortgage Loan shall
be void. The Special Servicer shall act on behalf of the Trust in taking all
actions necessary and appropriate in connection with the sale of any Specially
-152-
Designated Defaulted Mortgage Loan pursuant to this Section 3.18(c) and the
collection of all amounts payable in connection therewith. The price payable for
any Specially Designated Defaulted Mortgage Loan purchased under this Section
3.18(c) shall be deposited into the Collection Account. Upon its receipt of an
Officer's Certificate from the Master Servicer to the effect that such deposit
has been made, the Trustee shall release or cause to be released to or at the
direction of the purchaser, the related Mortgage File, and the Trustee or the
Master Servicer on behalf of the Trustee shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it by the purchaser and are reasonably necessary to vest in the
purchaser or any designee thereof the ownership of such Mortgage Loan. In
connection with any such purchase by any Person other than it, the Special
Servicer shall deliver the related Servicing File to or at the direction of the
purchaser. Any sale of a Specially Designated Defaulted Mortgage Loan pursuant
to this Section 3.18(c) shall be on a servicing released basis.
Nothing in this Section 3.18(c) is intended to prevent, impair
or delay the Special Servicer or the Master Servicer from taking any action
permitted to be taken thereby with respect to any Specially Designated Defaulted
Mortgage Loan pursuant to, and the Master Servicer and the Special Servicer
shall proceed concurrently with respect to a Specially Designated Defaulted
Mortgage Loan (without regard to this Section 3.18(c)) in accordance with,
Section 3.09 and/or Section 3.20.
(d) The Special Servicer shall use its reasonable
efforts, consistent with the Servicing Standard, to solicit bids for each
Administered REO Property in such manner as will be reasonably likely to realize
a fair price (determined pursuant to Section 3.18(e) below) as soon as
reasonably practicable (in light of the use and location of such REO Property)
and, in any event, within the time period provided for by Section 3.16(a).
Subject to Section 3.24 hereof, the Special Servicer shall accept the first
(and, if multiple bids are received by a specified bid date, the highest) cash
bid received from any Person that constitutes a fair price (determined pursuant
to Section 3.18(e) below) for any Administered REO Property; provided that, if
the Special Servicer receives more than two bids from Independent third parties,
it may also submit a bid. If the Special Servicer reasonably believes that it
will be unable to realize a fair price (determined pursuant to Section 3.18(e)
below) for any Administered REO Property within the time constraints imposed by
Section 3.16(a), then the Special Servicer shall, consistent with the Servicing
Standard, 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. 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 and agents may bid for or purchase any
Administered REO Property pursuant hereto.
The Special Servicer shall act on behalf of the Trust in
negotiating with independent third parties and taking any other action necessary
or appropriate in connection with the sale of any Administered REO Property, and
the collection of all amounts payable in connection therewith. In connection
therewith, the Special Servicer may charge prospective bidders, and may retain,
fees that approximate the Special Servicer's actual costs in the preparation and
delivery of information pertaining to such sales or evaluating bids without
obligation to deposit such amounts into the Collection Account or the REO
Account. Any sale of any Administered REO Property shall be final and without
recourse (except for warranties of title and condition) 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
-153-
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(e) Whether any cash bid constitutes a fair price for any
Administered REO Property for purposes of Section 3.18(d) shall be determined by
the Special Servicer (or, if such cash bid is from the Special Servicer or an
Affiliate thereof, by the Master Servicer (or, if the Master Servicer or an
Affiliate thereof is also bidding, by the Trustee)). In determining whether any
bid received from the Special Servicer or an Affiliate thereof represents a fair
price for any Administered REO Property, the Master Servicer or Trustee, as
applicable, shall be supplied with and shall be entitled to rely on the most
recent Appraisal with respect to such REO Property obtained or 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 a Qualified Appraiser that is (i) selected by the Special Servicer if neither
the Special Servicer nor any Affiliate thereof is bidding with respect to an
Administered REO Property and (ii) selected by the Master Servicer (or, if the
Master Servicer or an Affiliate thereof is also bidding, 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
(or, if the Special Servicer or an Affiliate thereof is bidding, shall be
submitted by it to the Master Servicer (or, if the Master Servicer or an
Affiliate thereof is also bidding, to the Trustee)) in writing and be
accompanied by a refundable deposit of cash in an amount equal to __% of the bid
amount. In determining whether any bid from a Person other than the Special
Servicer or an Affiliate thereof 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 preceding 12-month period, and any
Qualified 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 commercial real estate market
in the area where the subject REO Property is located 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(e), 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 thereof) have been received. Any
bid by the Special Servicer shall be unconditional; and, if accepted, the
subject 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 real property.
(f) Any sale of a Specially Designated Defaulted Mortgage
Loan or any REO Property shall be for cash only.
(g) The parties hereto acknowledge the right of the
holder of the [Separately Serviced Mortgage Loan] Subordinate Companion Loan to
purchase the [Separately Serviced Mortgage Loan] as and when provided in the
[Separately Serviced Mortgage Loan] A/B Intercreditor Agreement.
-154-
SECTION 3.19. Additional Obligations of the Master
Servicer and the Special Servicer.
(a) The Master Servicer shall deliver to the Trustee for
deposit in the Distribution Account by 1:00 p.m. (New York City time) on each
Master Servicer Remittance Date, without any right of reimbursement therefor, a
cash payment (a "Compensating Interest Payment") in an amount equal to the sum
of :
(i) the lesser of (A) the aggregate amount of
Prepayment Interest Shortfalls incurred in connection with Principal
Prepayments received (including, in the case of the [Separately
Serviced Mortgage Loan], by the [Separately Serviced Mortgage Loan]
Master Servicer or the [Separately Serviced Mortgage Loan] Special
Servicer on behalf of the Trust) during the most recently ended
Collection Period with respect to the Mortgage Loans, and (B) the
aggregate of (1) that portion of the Master Servicer's Master Servicing
Fees for the most recently ended Collection Period that is, in the case
of each and every Mortgage Loan and REO Loan for which such Master
Servicing Fees are being paid in such Collection Period, calculated at
___% per annum, (2) all Prepayment Interest Excesses received by the
Master Servicer during the most recently ended Collection Period and
(3) all Net Investment Earnings earned on such Principal Prepayments;
provided, however, that if such a Prepayment Interest Shortfall occurs
as a result of the Master Servicer's allowing the Borrower under any
Serviced Mortgage Loan to deviate from the terms of the related
Mortgage Loan Documents regarding Principal Prepayments (other than (S)
subsequent to a material default under the related Mortgage Loan
Documents, (T) pursuant to applicable law or a court order, or (U) at
the request or with the consent of the Controlling Class
Representative), then, for purposes of calculating the Compensating
Interest Payment for the subject Collection Period, the rate referred
to in clause (B)(1) above shall be ___% per annum (except as to the
Mortgage Loans that are, as of the Closing Date, Primary Serviced
Mortgage Loans, for which it shall in each case be ___% per annum); and
(ii) the lesser of (A) the aggregate amount of
Prepayment Interest Shortfalls incurred in connection with Insurance
Proceeds and Condemnation Proceeds received (including, in the case of
the [Separately Serviced Mortgage Loan], by the [Separately Serviced
Mortgage Loan] Master Servicer or the [Separately Serviced Mortgage
Loan] Special Servicer on behalf of the Trust) during the most recently
ended Collection Period with respect to the Mortgage Loans, and (B) all
Net Investment Earnings earned on the portion of such Insurance
Proceeds and Condemnation Proceeds that represents an early recovery of
principal.
The rights of the Certificateholders to offset the aggregate
Prepayment Interest Shortfalls shall not be cumulative from Collection Period to
Collection Period.
(b) No later than 1:00 p.m. New York City time on the
first Determination Date that follows the date on which the Special Servicer
makes any Servicing Advance, the Special Servicer shall provide the Master
Servicer an Officer's Certificate (via facsimile) setting forth the details of
the Servicing Advance upon which the Master Servicer shall conclusively rely in
reimbursing the Special Servicer. The Master Servicer shall be obligated, out of
the Master Servicer's own funds, to reimburse the Special Servicer for any
unreimbursed Servicing Advance (other than a Nonrecoverable Servicing Advance)
made by the Special Servicer with respect to any Specially Serviced Mortgage
Loan or
-155-
Administered REO Property, together with interest thereon at the Reimbursement
Rate from the date made to, but not including, the date of reimbursement. Any
such reimbursement, together with any accompanying payment of interest, shall be
made by the Master Servicer, by wire transfer of immediately available funds to
an account designated by the Special Servicer, no later than the first Master
Servicer Remittance Date that is at least three (3) Business Days after the date
on which the Master Servicer receives the corresponding Officer's Certificate
contemplated by the prior sentence; provided that any such Officer's Certificate
received after 1:00 p.m., New York City time, on any particular date shall, for
purposes of any such reimbursement, be deemed received on the next succeeding
Business Day. Upon the Master Servicer's reimbursement to the Special Servicer
of any Servicing Advance and payment to the Special Servicer of interest
thereon, all in accordance with this Section 3.19(b), the Master Servicer shall
for all purposes of this Agreement be deemed to have made such Servicing Advance
at the same time as the Special Servicer actually made such Servicing Advance,
and accordingly, the Master Servicer shall be entitled to reimbursement for such
Servicing Advance, together with interest thereon in accordance with Sections
3.05(a) and 3.11(g), at the same time, in the same manner and to the same extent
as the Master Servicer would otherwise have been entitled if it had actually
made such Servicing Advance at the time the Special Servicer did.
Notwithstanding anything to the contrary contained in any
other Section of this Agreement, the Special Servicer shall notify the Master
Servicer whenever a Servicing Advance is required to be made with respect to any
Specially Serviced Mortgage Loan or Administered REO Property, and the Master
Servicer shall thereupon make such Servicing Advance; provided that the Special
Servicer may make any Servicing Advance on a Specially Serviced Mortgage Loan or
Administered REO Property only as may be required on an urgent or emergency
basis. Each such notice and request shall be made, in writing, in a timely
manner that does not adversely affect the interests of any Certificateholder
(and, in any event, to the extent reasonably practicable, at least five Business
Days in advance of the date on which the subject Servicing Advance is to be
made) and shall be accompanied by such information and documentation regarding
the subject Servicing Advance as the Master Servicer may reasonably request;
provided, however, that the Special Servicer shall not be entitled to make such
a request (other than for emergency Servicing Advances) more frequently than
once per calendar month (although such request may relate to more than one
Servicing Advance). The Master Servicer shall have the obligation to make any
such Servicing Advance (other than a Nonrecoverable Servicing Advance) that it
is so requested by the Special Servicer to make, within five 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
with respect to any Specially Serviced Mortgage Loan or Administered REO
Property (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 Advance Interest in accordance with Sections 3.05(a) and 3.11(g),
at the same time, in the same manner and to the same extent as the Master
Servicer is entitled with respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section
3.19(b), the Master Servicer shall not be required to reimburse the Special
Servicer for, or to make at the direction of the Special Servicer, any Servicing
Advance if the Master Servicer determines in its reasonable 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
-156-
Servicer in writing of such determination and, if applicable, such
Nonrecoverable Servicing Advance shall be reimbursed to the Special Servicer
pursuant to Section 3.05(a).
(c) Promptly following the occurrence of an Appraisal
Trigger Event with respect to any Serviced Mortgage Loan, the Special Servicer
shall obtain (or, if such Mortgage Loan has a Stated Principal Balance of
$2,000,000 or less, at the Special Servicer's option, conduct) an Appraisal of
the related Mortgaged Property, unless an Appraisal thereof had previously been
obtained (or, if applicable, conducted) within the preceding 12-month period and
there has been no subsequent material change in the circumstances surrounding
the related Mortgaged Property that, in the judgment of the Special Servicer,
would materially affect the value of the property, and shall deliver a copy of
such Appraisal to the Master Servicer, the Controlling Class Representative and,
upon request, the Trustee. If such Appraisal is obtained from a Qualified
Appraiser, the cost thereof shall be covered by, and be reimbursable as, a
Servicing Advance. Promptly following the receipt of, and based upon, such
Appraisal, the Special Servicer, in consultation with the Controlling Class
Representative, shall determine and report to the Trustee and the Master
Servicer the then applicable Appraisal Reduction Amount, if any, with respect to
the subject Required Appraisal Loan.
For so long as any Serviced Mortgage Loan or any REO Loan that
relates to an Administered REO Property remains a Required Appraisal Loan, the
Special Servicer shall, within 30 days of each anniversary of such loan's having
become a Required Appraisal Loan, obtain (or, if such Required Appraisal Loan
has a Stated Principal Balance of $2,000,000 or less, at the Special Servicer's
option, conduct) an update of the prior Appraisal. If such update is obtained
from a Qualified Appraiser, the cost thereof shall be covered by, and be
reimbursable as, a Servicing Advance. Promptly following the receipt of, and
based upon, such update, the Special Servicer shall redetermine, in consultation
with the Controlling Class Representative, and report to the Trustee and the
Master Servicer the then applicable Appraisal Reduction Amount, if any, with
respect to the subject Required Appraisal Loan.
The Controlling Class Representative shall have the right at
any time within six months of the date of the receipt of any Appraisal to
require that the Special Servicer obtain a new Appraisal of the subject
Mortgaged Property in accordance with MAI standards, at the expense of the
Controlling Class Certificateholders, and upon receipt of such Appraisal the
Special Servicer shall redetermine the Appraisal Reduction Amount.
The Trustee shall disclose the existence of an Appraisal
Reduction Amount with respect to any Mortgage Loan or REO Loan on the Statement
to Certificateholders.
(d) The Master Servicer shall not be required to pay
without reimbursement the fees charged by any Rating Agency for a (i)
confirmation as to the lack of an Adverse Rating Event with respect to any Class
of Rated Certificates or (ii) in connection with any other particular matter,
unless the Master Servicer has failed to use efforts consistent with the
Servicing Standard to collect such fees from the Borrower, which shall include,
if it has the right to do so under the applicable Mortgage Loan Documents,
conditioning its consent or approval on such payment by the related Borrower
unless such condition would be a violation of applicable law or the Servicing
Standard.
(e) In connection with each prepayment of principal
received hereunder, the Master Servicer shall calculate any applicable
Prepayment Premium payable under the terms of the related Mortgage Note or loan
agreement. Upon written request of any Certificateholder, the Master Servicer
shall disclose to such Certificateholder its calculation of any such Prepayment
Premium.
-157-
(f) The Master Servicer shall not permit defeasance of
any Serviced Mortgage Loan (x) before the earliest date on which defeasance is
permitted under the terms of such Mortgage Loan, or (y) subject to the terms of
such Mortgage Loan, unless (i) the defeasance collateral consists of government
securities (as defined in Section 2(a)(16) of the Investment Company Act), (ii)
the Master Servicer has determined that the defeasance will not result in an
Adverse REMIC Event in respect of any REMIC Pool, (iii) the Master Servicer has
notified the Rating Agencies, (iv) the Master Servicer has confirmed that such
defeasance will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (provided that the requirement to obtain such confirmation
will be a precondition to the defeasance only if the Master Servicer is able
under the related Mortgage Loan Documents and applicable law to prevent the
defeasance if such confirmation is not obtained and either (A) the subject
Serviced Mortgage Loan is one of the ten largest Mortgage Loans by balance or
has a Stated Principal Balance in excess of the lesser of $__________ and 5.0%
of the then aggregate Stated Principal Balance of the Mortgage Pool or (B) in
the case of all Serviced Mortgage Loans not covered by (A) above, the Master
Servicer is unable to execute and deliver the certification attached hereto as
Exhibit M in connection with the subject defeasance), and (v) the Master
Servicer has requested and received from the related Borrower (A) an Opinion of
Counsel generally to the effect that the Trustee will have a perfected, first
priority security interest in such defeasance collateral and (B) written
confirmation from a firm of Independent accountants stating that payments made
on such defeasance collateral in accordance with the terms thereof will be
sufficient to pay the subject Serviced Mortgage Loan in full on or before its
Stated Maturity Date (or, in the case of a Serviced Mortgage Loan that is an ARD
Mortgage Loan, on or before its Anticipated Repayment Date) and to timely pay
each Monthly Payment scheduled to be due prior thereto but after the defeasance;
provided that, if under the terms of the related Mortgage Loan Documents, the
related Borrower delivers cash to purchase the defeasance collateral rather than
the defeasance collateral itself, the Master Servicer shall purchase the
government securities contemplated by the related Mortgage Loan Documents.
Subsequent to the second anniversary of the Startup Day for the REMIC Pool that
holds the subject Serviced Mortgage Loan, to the extent that the Master Servicer
can, in accordance with the related Mortgage Loan Documents, require defeasance
of any Serviced Mortgage Loan in lieu of accepting a prepayment of principal
thereunder, including a prepayment of principal accompanied by a Prepayment
Premium, the Master Servicer shall, to the extent it is consistent with the
Servicing Standard, require such defeasance, provided that the conditions set
forth in clauses (i) through (v) of the preceding sentence have been satisfied.
The Master Servicer and the Special Servicer each shall, consistent with the
Servicing Standard, enforce the provisions of the Serviced Mortgage Loans it is
obligated to service hereunder relating to defeasance and prepayment
restrictions; provided that, if at any time a court with jurisdiction in the
matter shall hold that the related Borrower may obtain a release of the subject
Mortgaged Property but is not obligated to deliver the full amount of the
defeasance collateral contemplated by the related Mortgage Loan Documents (or
cash sufficient to purchase such defeasance collateral), then the Master
Servicer shall (i) if consistent with such court holding and the related
Mortgage Loan Documents, refuse to allow the defeasance of the Serviced Mortgage
Loan or (ii) if the Master Servicer cannot so refuse and if the related Borrower
has delivered cash to purchase the defeasance collateral, the Master Servicer
shall either (A) buy such defeasance collateral or (B) prepay the Serviced
Mortgage Loan, in either case, in accordance with the Servicing Standard.
(g) The Master Servicer shall, as to each Serviced
Mortgage Loan which is secured by the interest of the related Borrower under a
Ground Lease as listed on the Mortgage Loan Schedule, in accordance with the
related Mortgage Loan Documents, promptly (and, in any event, within 45 days)
after the Closing Date notify the related ground lessor of the transfer of such
Mortgage Loan to the Trust
-158-
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
(h) If a Serviced Mortgage Loan provides or allows that
the related Borrower's failure to make any Monthly Payment due thereunder on the
applicable Due Date will not result in an event of default for which such
Mortgage Loan may be accelerated and/or the accrual of Default Charges unless
and until the Master Servicer notifies such Borrower of the failure or the
elapse of a specified number of days following the Master Servicer's delivery of
such notice, then the Master Servicer shall promptly (and in any event within
two Business Days following the applicable Due Date) notify the related Borrower
of such a failure.
(i) The Master Servicer shall maintain at its Primary
Servicing Office and shall, upon reasonable advance written notice, make
available during normal business hours for review by the Trustee, the Depositor,
each Rating Agency, the Controlling Class Representative and, subject to the
succeeding paragraph, any Certificateholder or Certificate Owner, or any Person
identified to the Master Servicer by any Certificateholder or Certificate Owner,
as a prospective transferee of a Certificate or an interest therein, originals
and/or copies of the following items (to the extent such items were prepared by
or delivered to the Master Servicer): (i) the most recent inspection report
prepared by the Master Servicer or the Special Servicer in respect of each
Mortgaged Property pursuant to Section 3.12(a); (ii) the most recent quarterly
and annual operating statement and rent roll (together with any new leases
entered into by the related Borrower and received by the Master Servicer) of
each related Mortgaged Property and financial statements of the related Borrower
collected by the Master Servicer or the Special Servicer pursuant to Section
3.12(b); (iii) any of the foregoing reports, statements and/or rent rolls which
contain information related to the [Separately Serviced Mortgage Loan], the
[Separately Serviced Mortgage Loan] Mortgaged Property and/or the [Separately
Serviced Mortgage Loan] Borrower, to the extent such items were received by the
Master Servicer from the [Separately Serviced Mortgage Loan] Master Servicer;
(iv) all files and reports comprising the CMSA Investor Reporting Package
prepared by the Master Servicer or the Special Servicer since the Closing Date
pursuant to Sections 3.12 and 4.02; (v) all Sub-Servicing Agreements (including
exhibits thereto) entered into by, or delivered by the Special Servicer to, the
Master Servicer that remain in effect and any amendments thereof and supplements
thereto; and (vi) all of the Servicing Files in its possession; provided that,
if the Master Servicer reasonably determines that any item of information
contained in such Servicing Files or relating to the [Separately Serviced
Mortgage Loan] is of a nature that it should be conveyed to all
Certificateholders at the same time, it shall, as soon as reasonably possible
following its receipt of any such item of information, disclose such item of
information to the Trustee as part of the reports to be delivered to the Trustee
by the Master Servicer pursuant to Section 3.12 and/or Section 4.02, and until
the Trustee has either disclosed such information to all Certificateholders in a
Statement to Certificateholders or has properly filed such information with the
Commission on behalf of the Trust under the Exchange Act, the Master Servicer
shall be entitled to withhold such item of information from any
Certificateholder or Certificate Owner or prospective transferee of a
Certificate or an interest therein; and provided, further, that the Master
Servicer shall not be required to make particular items of information contained
in the Servicing File for any Serviced Mortgage Loan available to any Person if
the disclosure of such particular items of information is expressly prohibited
by applicable law or the provisions of any related Mortgage Loan Documents or if
such documentation is subject to claim of privilege under applicable law that
can be asserted by the Master Servicer; and provided, further, that, except in
the case of the Rating Agencies and the Controlling Class Representative, the
Master Servicer shall be entitled to recover from any Person reviewing the
Servicing Files pursuant to this Section
-159-
3.19(i) its reasonable "out-of-pocket" expenses incurred in connection with
making the Servicing Files available at its offices to such Person. Except as
set forth in the provisos to the preceding sentence, copies of any and all of
the foregoing items are to be made available by the Master Servicer upon
request; provided that the Master Servicer shall be permitted to require, except
from the Rating Agencies and the Controlling Class Representative, payment of a
sum sufficient to cover the reasonable out-of-pocket costs and expenses of
providing such service; and provided, further, that the Master Servicer shall be
permitted to require from the Controlling Class Representative payment of a sum
sufficient to cover the reasonable costs and expenses of providing such services
with respect to the items described in clause (v) of this sentence to the extent
that such request is excessive or duplicative. The Special Servicer shall, as to
each Specially Serviced Mortgage Loan and Administered REO Property, promptly
deliver to the Master Servicer a copy of each document or instrument added to
the related Servicing File, and the Master Servicer shall in no way be in
default under this Section 3.19(i) solely by reason of the Special Servicer's
failure to do so. The Master Servicer shall not be liable for the dissemination
of information in accordance with this Section 3.19(i).
In connection with providing access to or copies of the items
described in the preceding paragraph, the Master Servicer may require, (i) in
the case of Certificateholders and Certificate Owners, a written confirmation
executed by the requesting Person, in form reasonably satisfactory to the Master
Servicer, generally to the effect that such Person is a Holder or Certificate
Owner of Certificates and, subject to the last sentence of this paragraph, will
otherwise keep such information confidential (except that such Certificateholder
or Certificate Owner may provide such information to its auditors, legal counsel
and regulators and to any other Person that holds or is contemplating the
purchase of any Certificate or interest therein, provided that such other Person
has signed and delivered the written confirmation described in this clause (i)
or in the immediately succeeding clause (ii), as applicable), and (ii) in the
case of a prospective purchaser, written confirmation executed by the requesting
Person, in form reasonably satisfactory to the Master Servicer, generally to the
effect that such Person is a prospective purchaser of a Certificate or an
interest therein, is requesting the information for use in evaluating a possible
investment in Certificates and, subject to the last sentence of this paragraph,
will otherwise keep such information confidential. Notwithstanding the
foregoing, no Certificateholder, Certificate Owner or prospective
Certificateholder or Certificate Owner need keep confidential any information
received from the Master Servicer pursuant to this Section 3.19(i) that has
previously been filed with the Commission, and the Master Servicer shall not
require either of the certifications contemplated by the preceding sentence in
connection with providing any information pursuant to this Section 3.19(i) that
has previously been filed with the Commission.
SECTION 3.20. Modifications, Waivers, Amendments and
Consents.
(a) The Special Servicer (solely as to any Specially
Serviced Mortgage Loan) and the Master Servicer (solely as to any Performing
Serviced Mortgage Loan) each may (consistent with the Servicing Standard), agree
to any modification, waiver or amendment of any term of, extend the maturity of,
defer or forgive interest (including Default Interest and Post-ARD Additional
Interest) on and principal of, defer or forgive late payment charges and
Prepayment Premiums on, permit the release, addition or substitution of
collateral securing, and/or permit the release, addition or substitution of the
Borrower on or any guarantor of, any Serviced Mortgage Loan and/or provide
consents with respect to any leasing activity at a Mortgaged Property securing
any Serviced Mortgage Loan; provided that the Master Servicer's and the Special
Servicer's respective rights to do so shall be subject to Sections 3.08 and 3.24
of this Agreement and, further, to each of the following limitations, conditions
and restrictions:
-160-
(i) other than as provided in Sections 2.03(b), 3.02,
3.07, 3.08, 3.20(f) and 3.20(g), the Master Servicer shall not agree to
any modification, waiver, forbearance, or amendment of any term of, or
take any of the other acts referenced in this Section 3.20(a) with
respect to, any Serviced Mortgage Loan, that would affect the amount or
timing of any related payment of principal, interest or other amount
payable under such Mortgage Loan or materially impair the security for
such Mortgage Loan, unless the Master Servicer has obtained the consent
of the Special Servicer (it being understood and agreed that (A) the
Master Servicer shall promptly provide the Special Servicer with (1)
notice of any Borrower request for such modification, waiver or
amendment, (2) the Master Servicer's recommendations and analysis, and
(3) all information reasonably available to the Master Servicer that
the Special Servicer may reasonably request in order to withhold or
grant any such consent, (B) the Special Servicer shall decide whether
to withhold or grant such consent in accordance with the Servicing
Standard and (C) if any such consent has not been expressly denied
within 10 Business Days (or, in the case of consents relating to
leasing activities at Mortgaged Properties securing [Seller No. 2]
Mortgage Loans, three Business Days) of the Special Servicer's receipt
from the Master Servicer of the Master Servicer's recommendations and
analysis and all information reasonably requested by the Special
Servicer and reasonably available to the Master Servicer in order to
make an informed decision (or, if the Special Servicer did not request
any information, within 10 Business Days (or, in the case of consents
relating to leasing activities at Mortgaged Properties securing [Seller
No. 2] Mortgage Loans, three Business Days) from such notice), such
consent shall be deemed to have been granted);
(ii) other than as provided in Sections 3.02, 3.07, 3.08
and 3.20(f), the Special Servicer shall not agree to (or, in the case
of a Performing Serviced Mortgage Loan, consent to the Master
Servicer's agreeing to) any modification, waiver or amendment of any
term of, or take (or, in the case of a Performing Serviced Mortgage
Loan, consent to the Master Servicer's taking) any of the other acts
referenced in this Section 3.20(a) with respect to, any Serviced
Mortgage Loan that would affect the amount or timing of any related
payment of principal, interest or other amount payable thereunder or,
in the Special Servicer's reasonable judgment, would materially impair
the security for such Mortgage Loan, unless a material default on such
Mortgage Loan has occurred or, in the Special Servicer's reasonable
judgment, a default in respect of payment on such Mortgage Loan is
reasonably foreseeable, and such modification, waiver, amendment or
other action is reasonably likely to produce a greater recovery to
Certificateholders (as a collective whole) on a present value basis
(the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be done at the related Net
Mortgage Rate), than would liquidation;
(iii) the Special Servicer shall not extend (or, in the
case of a Performing Serviced Mortgage Loan, consent to the Master
Servicer's extending) the date on which any Balloon Payment is
scheduled to be due on any Serviced Mortgage Loan to a date beyond the
earliest of (A) the fifth anniversary of such Mortgage Loan's Stated
Maturity Date, (B) two years prior to the Rated Final Distribution
Date, (C) if such Mortgage Loan is secured by a Mortgage solely or
primarily on the related Borrower's leasehold interest in the related
Mortgaged Property (but not by the corresponding fee interest), 20
years (or, to the extent consistent with the Servicing Standard, giving
due consideration to the remaining term of the Ground Lease, 10 years)
prior to the end of the then current term of the related Ground Lease
(plus any unilateral options to extend), and (D) if such Mortgage Loan
is covered by an environmental insurance
-161-
policy, two years prior to the expiration of the term of such policy
unless the Special Servicer shall have first determined in its
reasonable judgment, based upon a Phase I Environmental Assessment (and
any additional environmental testing that the Special Servicer deems
necessary and prudent) conducted by an Independent Person who regularly
conducts Phase I Environmental Assessments, and at the expense of the
Borrower, that there are no circumstances or conditions present at the
related Mortgaged Property for which investigation, testing,
monitoring, containment, clean-up or remediation would be required
under any then applicable environmental laws or regulations;
(iv) neither the Special Servicer nor the Master Servicer
shall make or permit any modification, waiver or amendment of any term
of, or take any of the other acts referenced in this Section 3.20(a)
with respect to, any Serviced Mortgage Loan that would result in an
Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool;
(v) subject to applicable law, the related Mortgage Loan
Documents and the Servicing Standard, neither the Master Servicer nor
the Special Servicer shall permit any modification, waiver or amendment
of any term of any Performing Serviced Mortgage Loan unless all related
fees and expenses are paid by the Borrower;
(vi) neither the Special Servicer nor the Master Servicer
shall permit (and, in the case of a Performing Serviced Mortgage Loan,
the Special Servicer shall not consent to the Master Servicer's
permitting) any Borrower to add or substitute any real estate
collateral for any Serviced Mortgage Loan unless the Special Servicer
shall have first (A) determined, in its reasonable judgment, based upon
a Phase I Environmental Assessment (and any additional environmental
testing that the Special Servicer deems necessary and prudent)
conducted by an Independent Person who regularly conducts Phase I
Environmental Assessments, at the expense of the Borrower, that such
additional or substitute real estate collateral is in compliance with
applicable environmental laws and regulations and that there are no
circumstances or conditions present with respect to such new real
estate collateral relating to the use, management or disposal of any
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation would be required under any then
applicable environmental laws or regulations and (B) received written
confirmation from each Rating Agency that such addition or substitution
of such real estate collateral will not, in and of itself, result in an
Adverse Rating Event with respect to any Class of Rated Certificates;
and
(vii) neither the Special Servicer nor the Master Servicer
shall release (and, in the case of a Performing Serviced Mortgage Loan,
the Special Servicer shall not consent to the Master Servicer's
releasing), including in connection with a substitution contemplated by
clause (vi) above, any real property collateral securing an outstanding
Serviced Mortgage Loan, except as provided in Section 3.09(d) or
Section 3.20(g), or except in connection with a permitted defeasance,
or except where a Serviced Mortgage Loan (or, in the case of a
Cross-Collateralized Group, where such entire Cross-Collateralized
Group) is satisfied, or except in the case of a release of real
property collateral where (A) the Rating Agencies have been notified in
writing, (B) either (1) such release will not, in the Special
Servicer's reasonable judgment, materially and adversely affect the net
operating income being generated by or the then current principal use
of the related Mortgaged Property, or (2) there is a corresponding
principal pay down of such
-162-
Mortgage Loan in an amount at least equal to the appraised value of the
collateral to be released (or substitute real property collateral with
an appraised value at least equal to that of the collateral to be
released, is delivered), (C) the remaining Mortgaged Property (together
with any substitute real property collateral) is, in the Special
Servicer's reasonable judgment, adequate security for the remaining
Mortgage Loan and (D) if the real property collateral that is being
released has an appraised value in excess of $1,500,000, such release
would not, in and of itself, result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to
the Trustee by each Rating Agency);
provided that (x) the limitations, conditions and restrictions set forth in
clauses (i) through (vii) above shall not apply to any act or event (including,
without limitation, a release, substitution or addition of collateral) in
respect of any Serviced Mortgage Loan that either occurs automatically by its
terms, or results from the exercise of a unilateral option by the related
Borrower within the meaning of Treasury regulation section 1.1001-3(c)(2)(iii),
in any event under the terms of such Mortgage Loan in effect on the Closing
Date, (y) notwithstanding clauses (i) through (vii) above, neither the Master
Servicer nor the Special Servicer shall be required to oppose the confirmation
of a plan in any bankruptcy or similar proceeding involving a Borrower, if in
its reasonable judgment, such opposition would not ultimately prevent the
confirmation of such plan or one substantially similar, and (z) notwithstanding
clause (vii) above, neither the Master Servicer nor the Special Servicer shall
be required to obtain any confirmation of the Certificate ratings from the
Rating Agencies in order to grant easements or rights of way that do not
materially affect the use or value of a Mortgaged Property or the Borrower's
ability to make any payments with respect to the related Serviced Mortgage Loan.
(b) Neither the Special Servicer nor the Master Servicer
shall have any liability to the Trust, the Certificateholders or any other
Person if the Special Servicer's analysis and determination that the
modification, waiver, amendment or other action contemplated by Section 3.20(a)
is reasonably likely to produce a greater recovery to Certificateholders (as
collective whole) on a present value basis than would liquidation, should prove
to be wrong or incorrect, so long as the analysis and determination were made on
a reasonable basis by the Special Servicer or the Master Servicer, as
applicable, and the Special Servicer or the Master Servicer, as the case may be,
has acted reasonably and complied with the Servicing Standard in ascertaining
the pertinent facts. Each such determination shall be evidenced by a statement
to such effect in the Officer's Certificate contemplated by Section 3.20(e) to
be delivered by the Special Servicer or the Master Servicer, as applicable.
(c) Any payment of interest, which is deferred pursuant
to Section 3.20(a), shall not, for purposes of calculating monthly distributions
and reporting information to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Serviced Mortgage
Loan, notwithstanding that the terms of such Mortgage Loan so permit or that
such interest may actually be capitalized; provided, however, that this sentence
shall not limit the rights of the Master Servicer or the Special Servicer on
behalf of the Trust to enforce any obligations of the related Borrower under
such Mortgage Loan.
(d) The Master Servicer and the Special Servicer each
may, as a condition to its granting any request by a Borrower for consent,
modification, waiver or indulgence or any other matter or thing, the granting of
which is within the discretion of the Master Servicer or the Special Servicer,
as the case may be, pursuant to the terms of the related Mortgage Loan Documents
and is permitted by the terms of this Agreement, require that such Borrower pay
to it a reasonable or customary fee (which shall
-163-
in no event exceed 1.0% of the unpaid principal balance of the related Serviced
Mortgage Loan) for the additional services performed in connection with such
request, together with any related costs and expenses incurred by it. All such
fees collected by the Master Servicer or the Special Servicer shall constitute
Additional Special Servicing Compensation or Additional Master Servicing
Compensation, as applicable, as provided in Section 3.11.
(e) All modifications, amendments, material waivers and
other material actions entered into or taken in respect of the Serviced Mortgage
Loans pursuant to this Section 3.20 (other than waivers of Default Charges), and
all consents, shall be in writing. The Master Servicer (in the case of a
Performing Serviced Mortgage Loan) and the Special Servicer (in the case of a
Specially Serviced Mortgage Loan) shall notify the other such party, each Rating
Agency, the Trustee and the Controlling Class Representative, in writing, of any
modification, waiver, amendment or other action entered into or taken thereby in
respect of any Mortgage Loan pursuant to this Section 3.20 (other than waivers
of Default Charges) and the date thereof, and shall deliver to the Trustee for
deposit in the related Mortgage File (with a copy to the other such party), an
original counterpart of the agreement relating to such modification, waiver,
amendment or other action, promptly (and in any event within ten Business Days)
following the execution thereof. In addition, following the execution of any
modification, waiver or amendment agreed to by the Master Servicer (in the case
of a Performing Serviced Mortgage Loan) and the Special Servicer (in the case of
a Specially Serviced Mortgage Loan) pursuant to Section 3.20(a) above, the
Master Servicer or the Special Servicer, as the case may be, shall deliver to
the other such party, the Trustee and the Rating Agencies an Officer's
Certificate describing such modification, waiver or amendment, certifying that
all of the requirements of Section 3.20(a) have been met and, in the case of the
Special Servicer, setting forth in reasonable detail the basis of the
determination made by it pursuant to Section 3.20(a)(ii); provided that, if such
modification, waiver or amendment involves an extension of the maturity of any
Serviced Mortgage Loan, such Officer's Certificate shall be delivered to the
other such party, the Trustee and the Rating Agencies before the modification,
waiver or amendment is agreed to.
(f) With respect to any ARD Mortgage Loan that is a
Performing Serviced Mortgage Loan, after its Anticipated Repayment Date, the
Master Servicer shall be permitted, with the consent of the Special Servicer
(which consent shall be granted or withheld in a manner consistent with the
Servicing Standard), to waive (such waiver to be in writing addressed to the
related Borrower, with a copy to the Trustee) all or any portion of the accrued
Post-ARD Additional Interest in respect of such ARD Mortgage Loan if, prior to
the related maturity date, the related Borrower has requested the right to
prepay such ARD Mortgage Loan in full, together with all payments required by
the related Mortgage Loan Documents in connection with such prepayment, except
for such accrued Post-ARD Additional Interest, provided that the Master Servicer
has determined, in its reasonable judgment, that the waiver of the Trust's right
to receive such accrued Post-ARD Additional Interest is in accordance with the
Servicing Standard.
(g) Notwithstanding anything in this Section 3.20 or
Section 3.24 to the contrary, the Master Servicer shall not be required to seek
the consent of the Special Servicer or any Certificateholder or obtain any
confirmation of the Certificate ratings from the Rating Agencies in order to
approve the following modifications, waivers or amendments of the Serviced
Mortgage Loans (but, in the case of the actions described in clauses (ii) and
(iii) of this sentence, shall notify the Controlling Class Representative
thereof): (i) waivers of minor covenant defaults (other than financial
covenants), including late financial statements; (ii) releases of parcels of a
Mortgaged Property (provided that any
-164-
such releases (A) are releases as to which the related Mortgage Loan Documents
expressly require the mortgagee thereunder to make such releases upon the
satisfaction of certain conditions and such releases shall be made as required
by the related Mortgage Loan Documents, or (B) are related to any pending or
threatened condemnation action); (iii) grants of easements or rights of way that
do not materially affect the use or value of a Mortgaged Property or the
Borrower's ability to make any payments with respect to the subject Serviced
Mortgage Loan; (iv) if the subject Mortgage Loan is a CGMRC Mortgage Loan or a
[Seller No. 3] Mortgage Loan, approval of routine leasing activities that affect
less than the lesser of ___% of the net rentable area of the related Mortgaged
Property or ________ square feet of the related Mortgaged Property; (v) if the
subject Mortgage Loan is a [Seller No. 2] Mortgage Loan with an unpaid principal
balance of greater than $__________, approval of routine leasing activities that
affect less than ________ square feet of the related Mortgaged Property, (vi) if
the subject Mortgage Loan is a [Seller No. 2] Mortgage Loan with an unpaid
principal balance of $__________ or less, approval of any routine leasing
activity, and (vii) approval of annual budgets to operate the Mortgaged
Property; provided that any such modification, waiver or amendment, or agreeing
to any such modification, waiver or amendment, (w) would not in any way affect a
payment term of the subject Serviced Mortgage Loan, (x) would not constitute a
"significant modification" of such Mortgage Loan pursuant to Treasury regulation
section 1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event
with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
either Grantor Trust Pool, (y) would be consistent with the Servicing Standard,
and (z) shall not violate the terms, provisions or limitations of this Agreement
or any other document contemplated hereby.
(h) The Master Servicer shall not terminate or replace,
or consent to the termination or replacement of, any property manager with
respect to any Mortgaged Property, in any event without the prior written
consent of the Special Servicer (it being understood and agreed that (A) the
Master Servicer shall promptly provide the Special Servicer with its analysis,
recommendations and all information that the Special Servicer may reasonably
request and which information is in the possession of the Master Servicer, in
order to withhold or grant any such consent, (B) subject to Section 3.24, the
Special Servicer shall decide whether to withhold or grant such consent in
accordance with the Servicing Standard and (C) if any such consent has not been
expressly denied within 10 Business Days of the Special Servicer's receipt from
the Master Servicer of such analysis, recommendation and all information
reasonably requested thereby in order to make an informed decision (or, if the
Special Servicer did not request any information, within 10 Business Days from
such notice), such consent shall be deemed to have been granted). Furthermore,
the Master Servicer shall not take any such action with respect to any Serviced
Mortgage Loan with an unpaid principal balance in excess of $__________ unless
(subject to the related Mortgage Loan Documents) the Master Servicer has
obtained written confirmation from each Rating Agency that such action will not
result in an Adverse Rating Event.
(i) In connection with granting an extension of the
maturity date of any Serviced Mortgage Loan in accordance with Section 3.20(a),
the Special Servicer, in the case of a Specially Serviced Mortgage Loan, and the
Master Servicer, in the case of a Performing Serviced Mortgage Loan, shall each
cause the related Borrower to agree, if it has not already done so pursuant to
the existing Mortgage Loan Documents, to thereafter deliver to the Special
Servicer, the Controlling Class Representative and, upon request, the Trustee
annual audited operating statements and quarterly unaudited operating statements
with respect to the related Mortgaged Property, provided that the Special
Servicer or the Master Servicer, as the case may be, may, in its sole
discretion, waive the requirement that such statements be audited.
-165-
(j) Notwithstanding anything in this Agreement, including
this Section 3.20, to the contrary, for so long as the Master Servicer and the
Special Servicer are the same Person, the Master Servicer shall not be obligated
to obtain the consent or approval of the Special Servicer as otherwise required
in this Agreement but shall instead be required to request the consent or
approval of the Controlling Class Representative (in respect of any matter as to
which such consent is otherwise required hereunder) to the extent, and on the
same terms, subject to the same limitations, restrictions and exclusions and
within the same time periods as, the Special Servicer is required to request
such consent or approval of the Controlling Class Representative pursuant to
Section 3.24 or any other section or provision of this Agreement.
(k) None of the Master Servicer, the Special Servicer or
the Trustee shall agree to any amendment or supplement to or modification or
termination of either [Separately Serviced Mortgage Loan] Intercreditor
Agreement or any [Separately Serviced Mortgage Loan] Servicing Agreement unless
(i) it shall have obtained (A) the consent of the Controlling Class
Representative and (B) written confirmation from each Rating Agency that such
amendment, supplement or modification will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates and (ii) it shall have received
an Opinion of Counsel to the effect that such amendment, supplement or
modification will not result in an Adverse REMIC Event or an Adverse Grantor
Trust Event.
SECTION 3.21. Transfer of Servicing Between Master Servicer
and Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has
occurred with respect to any Serviced Mortgage Loan, if the Master Servicer is
not also the Special Servicer, the Master Servicer shall immediately give notice
thereof, and shall deliver the related Servicing File, to the Special Servicer
and shall use its 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
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its functions hereunder with respect thereto without acting through a
Sub-Servicer. Without regard to whether the Master Servicer and the Special
Servicer are the same Person, the Master Servicer shall immediately give notice
of a Servicing Transfer Event in respect of any Serviced Mortgage Loan to the
Controlling Class Representative. The Master Servicer shall use its reasonable
efforts to comply with the preceding two sentences within five Business Days of
the occurrence of each related Servicing Transfer Event. The Special Servicer
may, as to any delinquent Serviced Mortgage Loan, prior to the occurrence of a
Servicing Transfer Event with respect thereto, request and obtain the foregoing
documents and information in order to perform its duties described in Section
3.02.
Upon determining that a Specially Serviced Mortgage Loan has
become a Corrected Serviced Mortgage Loan, the Special Servicer shall
immediately give notice thereof to the Controlling Class Representative. In
addition, if the Master Servicer is not also the Special Servicer, the Special
Servicer shall immediately give notice thereof, and shall return the related
Servicing File within five Business Days, to the Master Servicer; and, upon
giving such notice and returning such Servicing File to the Master Servicer, the
Special Servicer's obligation to service such Mortgage Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such
Mortgage Loan, shall terminate, and the obligations of the Master Servicer to
service and administer such Mortgage Loan shall resume.
-166-
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 Serviced
Mortgage 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 Serviced Mortgage Loan at anytime that a continuing
Servicing Transfer Event exists with respect to another Cross-Collateralized
Mortgage Loan in the same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Mortgage Loan,
the Special Servicer shall provide to the Trustee originals of documents
contemplated by the definition of "Mortgage File" and generated while such
Mortgage Loan is a Specially Serviced Mortgage Loan, for inclusion in the
related Mortgage File (with a copy of each such original to the Master
Servicer), and copies of any additional related Mortgage Loan information,
including correspondence with the related Borrower generated while such Mortgage
Loan is a Specially Serviced Mortgage Loan.
(c) The Master Servicer and the Special Servicer shall
furnish to each other, upon reasonable request, such reports, documents,
certifications and information in its possession, and access to such books and
records maintained thereby, as may relate to any Mortgage Loan or REO Property
and as shall be reasonably required by the requesting party in order to perform
its duties hereunder.
(d) In connection with the performance of its obligations
hereunder, each of the Master Servicer and the Special Servicer shall be
entitled to rely upon written information provided to it by the other.
(e) Notwithstanding anything in this Agreement to the
contrary, in the event that the Master Servicer and the Special Servicer are the
same Person, all notices, certificates, information, consents and documents
required to be given or delivered by the Master Servicer to the Special Servicer
or vice versa shall be deemed to be given or delivered, as the case may be,
without the necessity of any action on such Person's part.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and, subject to Section 3.22(f),
the Special Servicer may each enter into Sub-Servicing Agreements to provide for
the performance by third parties of any or all of its obligations hereunder,
provided that, in each case, the Sub-Servicing Agreement: (i) is not
inconsistent with this Agreement and does not subject the Trust to any
liability; (ii) expressly or effectively 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), any
successor to the Master Servicer or the Special Servicer, as the case may be,
hereunder (including the Trustee if the Trustee has become such successor
pursuant to Section 7.02) may thereupon either 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, subject to the provisions of Section 3.22(d), terminate such
rights and obligations, in either case without payment of any fee except as set
forth in Section 3.22(d); (iii) prohibits the Sub-Servicer from modifying any
Serviced Mortgage Loan or commencing any foreclosure or similar proceedings with
respect to any Mortgaged Property without the consent of the Master Servicer or
the Special Servicer, as the case may
-167-
be; (iv) in the case of a Sub-Servicing Agreement entered into by the Master
Servicer, expressly or effectively provides (unless the Special Servicer agrees
otherwise) that such agreement shall be suspended or terminated with respect to
any Serviced Mortgage Loan serviced thereunder at the time such Mortgage Loan
becomes a Specially Serviced Mortgage Loan, and also expressly or effectively
provides (unless the Special Servicer agrees otherwise) that the Sub-Servicer
shall not receive or accrue an entitlement to any sub-servicing compensation in
respect of a Specially Serviced Mortgage Loan or an REO Loan that relates to an
Administered REO Property; and (v) in the case of a Sub-Servicing Agreement
entered into by the Special Servicer, relates only to Specially Serviced
Mortgage Loans or Administered REO Properties and expressly or effectively
provides that such agreement shall terminate with respect to any such Mortgage
Loan that becomes a Corrected Serviced Mortgage Loan. References in this
Agreement to actions taken or to be taken by the Master Servicer or the Special
Servicer, as the case may be, include actions taken or to be taken by a
Sub-Servicer on behalf of the Master Servicer or the Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer or the Special
Servicer, as the case may be, hereunder to make Advances shall be deemed to have
been advanced by the Master Servicer or the Special Servicer, as the case may
be, out of its own funds. Accordingly, such Advances shall be recoverable by
such Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were the Master Servicer or the Special Servicer, as the case may
be; and, for so long as they are outstanding, such Advances shall accrue
interest in accordance with Section 3.11(g) and/or Section 4.03(d), such
interest to be allocable between the Master Servicer or the Special Servicer, as
the case may be, and such Sub-Servicer as they may agree. For purposes of this
Agreement, the Master Servicer and the Special Servicer each shall be deemed to
have received any payment when a Sub-Servicer retained by it receives such
payment. The Master Servicer and the Special Servicer each shall deliver to the
other such party, the Trustee and the Depositor, promptly following the
appointment by it of any Sub-Servicer, an Officer's Certificate disclosing such
appointment and confirming that the related Sub-Servicing Agreement complies
with this Section 3.22(a).
(b) Each Sub-Servicer shall be authorized to transact
business in the state or states in which the related Mortgaged Properties it is
to service are situated, if and to the extent required by applicable law.
(c) The Master Servicer and the Special Servicer, for the
benefit of the Trustee and the Certificateholders, each shall (at no expense to
the other parties hereto or to the Trustee, the Certificateholders or the Trust)
monitor the performance and enforce the obligations of their respective
Sub-Servicers under the related Sub-Servicing Agreements. Such enforcement,
including the legal prosecution of claims, termination of Sub-Servicing
Agreements in accordance with their respective terms and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer or the Special Servicer, as applicable,
in its reasonable judgment, would require were it the owner of the subject
Serviced Mortgage Loans. Subject to the terms of the related Sub-Servicing
Agreement, the Master Servicer and the Special Servicer shall each have the
right to remove a Sub-Servicer retained by it at any time it considers such
removal to be in the best interests of Certificateholders.
(d) If the Master Servicer or the Special Servicer ceases
to serve as such under this Agreement for any reason (including by reason of an
Event of Default), then the Trustee or other successor Master Servicer or
Special Servicer, as the case may be, shall succeed to the rights and assume the
obligations of the Master Servicer or the Special Servicer, as the case may be,
under any Sub-
-168-
Servicing Agreement unless the Trustee or other successor Master Servicer or
Special Servicer elects to terminate any such Sub-Servicing Agreement in
accordance with its terms and Section 3.22(a)(ii) hereof; provided that a
Designated Sub-Servicer Agreement may not be so terminated except for cause. In
any event, if a Sub-Servicing Agreement is to be assumed by the Trustee or other
successor Master Servicer or Special Servicer, then the resigning or terminated
Master Servicer or Special Servicer, as applicable, at its expense shall, upon
request of the Trustee, deliver to the assuming party all documents and records
relating to such Sub-Servicing Agreement and the Serviced Mortgage Loans then
being serviced thereunder and an accounting of amounts collected and held on
behalf of it thereunder, and otherwise use its reasonable efforts to effect the
orderly and efficient transfer of the Sub-Servicing Agreement to the assuming
party.
(e) Notwithstanding any Sub-Servicing Agreement entered
into by it, each of the Master Servicer and the Special Servicer shall remain
obligated and liable to the Trustee and the Certificateholders for the
performance of their respective obligations and duties under this Agreement in
accordance with the provisions hereof to the same extent and under the same
terms and conditions as if each alone were servicing and administering the
Serviced Mortgage Loans and/or Administered REO Properties for which it is
responsible. No appointment of a Sub-Servicer shall result in any additional
expense to the Trustee, the Certificateholders or the Trust other than those
contemplated herein, and the fees of such Sub-Servicer shall be payable by the
Master Servicer or the Special Servicer, whichever retained it, regardless of
whether the Master Servicer's or the Special Servicer's, as the case may be,
compensation hereunder is sufficient to cover such fees.
(f) The Special Servicer shall not enter into any
Sub-Servicing Agreement unless either: (i) the Rating Agencies have confirmed in
writing that entering into such agreement will not result in an Adverse Rating
Event; or (ii) such agreement relates to one or more Specially Serviced Mortgage
Loans that (together with any other Specially Serviced Mortgage Loan or Loans
sub-serviced in accordance with this Section 3.22) represent less than 25% of
the aggregate outstanding principal balance of all Specially Serviced Mortgage
Loans.
(g) Each successor Master Servicer hereunder shall,
except as provided in Section 7.01(c), agree to assume the responsibilities and
obligations of the Master Servicer under the applicable Designated Sub-Servicer
Agreement.
SECTION 3.23. Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry
Certificates, the Certificate Owners) of Certificates representing more than 50%
of the Class Principal Balance of the Controlling Class shall be entitled in
accordance with this Section 3.23 to select a representative (the "Controlling
Class Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a successor Controlling Class Representative from
the Holders (or, in the case of Book-Entry Certificates, the Certificate Owners)
of Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the Trustee shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry Certificates, to the
extent actually known to a Responsible Officer of the Trustee or identified
thereto by the Depository or the Depository Participants, at the expense of the
-169-
Certificateholder or Certificate Owner requesting information with respect to
clause (i) and clause (iii) above if the Depository charges a fee for such
identification, the Certificate Owners) of the Controlling Class that they may
select a Controlling Class Representative. Such notice shall set forth the
process established by the Trustee for selecting a Controlling Class
Representative, which process may include the designation of the Controlling
Class Representative by the Majority Controlling Class Certificateholder(s) by a
writing delivered to the Trustee. No appointment of any Person as a successor
Controlling Class Representative shall be effective until such Person provides
the Trustee with written confirmation of its acceptance of such appointment,
written confirmation that it will keep confidential all information received by
it as Controlling Class Representative hereunder or otherwise with respect to
the Certificates, the Trust Fund and/or this Agreement, an address and telecopy
number for the delivery of notices and other correspondence and a list of
officers or employees of such Person with whom the parties to this Agreement may
deal (including their names, titles, work addresses and telecopy numbers).
(b) Within 10 Business Days (or as soon thereafter as
practicable if the Controlling Class consists of Book-Entry Certificates) of any
change in the identity of the Controlling Class Representative of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee shall
deliver to the Holders or Certificate Owners, as applicable, of the Controlling
Class, the Master Servicer and the Special Servicer the identity of the new
Controlling Class Representative and a list of each Holder (or, in the case of
Book-Entry Certificates, to the extent actually known to a Responsible Officer
of the Trustee or identified thereto by the Depository or the Depository
Participants, each Certificate Owner) of the Controlling Class, including, in
each case, names and addresses. With respect to such information, the Trustee
shall be entitled to conclusively rely on information provided to it by the
Holders (or, in the case of Book-Entry Certificates, subject to Section 5.06, by
the Depository or the Certificate Owners) of such Certificates, and the Master
Servicer and the Special Servicer shall be entitled to rely on such information
provided by the Trustee with respect to any obligation or right hereunder that
the Master Servicer or the Special Servicer, as the case may be, may have to
deliver information or otherwise communicate with the Controlling Class
Representative or any of the Holders (or, if applicable, Certificate Owners) of
the Controlling Class. In addition to the foregoing, within two Business Days of
the selection, resignation or removal of a Controlling Class Representative, the
Trustee shall notify the other parties to this Agreement of such event.
(c) A Controlling Class Representative may at any time
resign as such by giving written notice to the Trustee and to each Holder (or,
in the case of Book-Entry Certificates, Certificate Owner) of the Controlling
Class. The Holders (or, in the case of Book-Entry Certificates, the Certificate
Owners) of Certificates representing more than 50% of the Class Principal
Balance of the Controlling Class shall be entitled to remove any existing
Controlling Class Representative by giving written notice to the Trustee and to
such existing Controlling Class Representative.
(d) Once a Controlling Class Representative has been
selected pursuant to this Section 3.23, each of the parties to this Agreement
and each Certificateholder (or Certificate Owner, if applicable) shall be
entitled to rely on such selection unless a majority of the Holders (or, in the
case of Book-Entry Certificates, the Certificate Owners) of the Controlling
Class, by aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
party to this Agreement and each Holder (or, in the case of Book-Entry
Certificates, Certificate Owner) of the Controlling Class, in writing, of the
resignation or removal of such Controlling Class Representative.
-170-
(e) Any and all expenses of the Controlling Class
Representative shall be borne by the Holders (or, if applicable, the Certificate
Owners) of Certificates of the Controlling Class, pro rata according to their
respective Percentage Interests in such Class, and not by the Trust.
Notwithstanding the foregoing, if a claim is made against the Controlling Class
Representative by a Borrower with respect to this Agreement or any particular
Mortgage Loan, the Controlling Class Representative shall immediately notify the
Trustee, the Master Servicer and the Special Servicer, whereupon (if the Special
Servicer, the Master Servicer, the Trustee or the Trust are also named parties
to the same action and, in the reasonable judgment of the Special Servicer, (i)
the Controlling Class Representative had acted in good faith, without negligence
or willful misfeasance, with regard to the particular matter at issue, and (ii)
there is no potential for the Special Servicer, the Master Servicer, the Trustee
or the Trust to be an adverse party in such action as regards the Controlling
Class Representative) the Special Servicer on behalf of, and at the expense of,
the Trust shall, subject to Section 6.03, assume the defense of any such claim
against the Controlling Class Representative; provided that the Controlling
Class Representative shall be liable for any damages or judgment against it
arising solely from its actions. This provision shall survive the termination of
this Agreement and the termination or resignation of the Controlling Class
Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling
Class Representative.
(a) The Special Servicer shall prepare a report (the
"Asset Status Report") recommending the taking of certain actions for each
Serviced Mortgage Loan that becomes a Specially Serviced Mortgage Loan and
deliver such Asset Status Report to the Controlling Class Representative and the
Master Servicer not later than 45 days after the servicing of such Mortgage Loan
is transferred to the Special Servicer. If (i) after 10 Business Days from
receipt of an Asset Status Report the Controlling Class Representative does not
object to such Asset Status Report or (ii) within 10 Business Days after receipt
of an Asset Status Report the Controlling Class Representative objects to such
Asset Status Report and the Special Servicer makes a determination in accordance
with the Servicing Standard that such objection is not in the best interest of
all the Certificateholders, the Special Servicer shall take the recommended
actions described in the Asset Status Report. If within 10 Business Days after
receipt of an Asset Status Report the Controlling Class Representative objects
to such Asset Status Report and the Special Servicer does not make a
determination in accordance with the Servicing Standard that such objection is
not in the best interest of all the Certificateholders, the Special Servicer
shall revise such Asset Status Report as soon as practicable thereafter, but in
no event later than 30 days after the objection to the Asset Status Report by
the Controlling Class Representative. The Special Servicer shall continue to
revise the Asset Status Report until, as provided above, (i) the Controlling
Class Representative fails to object to the revised Asset Status Report or (ii)
the Controlling Class Representative objects to the revised Asset Status Report
and the Special Servicer makes a determination in accordance with the Servicing
Standard that such objection is not in the best interest of all the
Certificateholders; provided, however, that if the Special Servicer has not
taken the recommended actions described in an Asset Status Report in accordance
with this paragraph within 90 days of the Controlling Class Representative's
receipt of the initial Asset Status Report, the Special Servicer shall take the
recommended actions described in the most recent Asset Status Report submitted
to the Controlling Class Representative, which Asset Status Report shall be
deemed to have been approved by the Controlling Class Representative.
In addition, notwithstanding anything in any other Section of
this Agreement to the contrary, but in all cases subject to Section 3.24(b), the
Special Servicer will not be permitted to take, or
-171-
consent to the Master Servicer's taking, any of the actions identified in
clauses (i) through (xii) of this sentence not otherwise specifically covered by
an approved Asset Status Report, unless and until the Special Servicer has
notified the Controlling Class Representative in writing of the Special
Servicer's intent to take or permit the particular action and the Controlling
Class Representative has consented (or has failed to object) thereto in writing
within ten Business Days (or, in the case of any consent to leasing activity at
a Mortgaged Property securing a [Seller No. 2] Mortgage Loan as contemplated by
clause (viii) below, three Business Days) of having been notified thereof in
writing and having been provided with all reasonably requested information with
respect thereto:
(i) any foreclosure upon or comparable conversion (which
may include acquisitions of an Administered REO Property) of the
ownership of the property or properties securing any Specially Serviced
Mortgage Loan as comes into and continues in default;
(ii) any modification, amendment or waiver of a monetary
term (including a change in the timing of payments but excluding the
waiver of Default Charges) or any material non-monetary term of a
Serviced Mortgage Loan (excluding the waiver of any "due-on-sale" or
"due-on-encumbrance" clause, which clauses are addressed in clause (ix)
below) of (A) any Performing Serviced Mortgage Loan with a principal
balance of $2,500,000 or more (or, if the proposed modification/waiver
is an extension of maturity or a waiver of Post-ARD Additional Interest
under the circumstances contemplated by Section 3.20(f), any Performing
Serviced Mortgage Loan without regard to balance) or (B) any Specially
Serviced Mortgage Loan;
(iii) any acceptance of a discounted payoff with respect to
any Specially Serviced Mortgage Loan;
(iv) any determination to bring an Administered REO
Property into compliance with applicable environmental laws or to
otherwise address Hazardous Materials located at an Administered REO
Property;
(v) any release of real property collateral for any
Serviced Mortgage Loan (other than in circumstances (A) involving a
Performing Serviced Mortgage Loan with a principal balance of less than
$2,500,000 or (B) where the release of collateral is not conditioned on
obtaining the consent of the lender under the related Mortgage Loan
Documents, and other than upon satisfaction of the subject Serviced
Mortgage Loan);
(vi) any acceptance of substitute or additional real
property collateral for a Serviced Mortgage Loan (other than in
circumstances (A) involving a Performing Serviced Mortgage Loan with a
principal balance of less than $2,500,000 or (B) where the acceptance
of the substitute or additional collateral is not conditioned on
obtaining the consent of the lender);
(vii) any releases of Earn-Out Reserve Funds or related
Letters of Credit with respect to a Mortgaged Property securing a
Serviced Mortgage Loan (other than in circumstances (A) involving a
Performing Serviced Mortgage Loan with a principal balance of less than
$2,500,000 or (B) where the release of Earn-Out Reserve Funds or
related Letters of Credit is not conditioned on obtaining the consent
of the lender);
(viii) any termination or replacement, or consent to the
termination or replacement, of a property manager with respect to any
Mortgaged Property securing a Serviced
-172-
Mortgage Loan, or any consent to leasing activity that affects at least
30,000 square feet at any Mortgaged Property securing a Serviced
Mortgage Loan that is a [Seller No. 2] Mortgage Loan, or any consent to
leasing activity that affects at least the lesser of 30% of the net
rentable area of any Mortgaged Property securing a Serviced Mortgage
Loan that is a CGMRC Mortgage Loan or a [Seller No. 3] Mortgage Loan or
30,000 square feet of such Mortgaged Property (other than, in each such
case, (A) in circumstances involving a Performing Serviced Mortgage
Loan with a principal balance of less than $2,500,000 (or, in the case
of a [Seller No. 2] Mortgage Loan and a situation involving leasing
activity, $3,000,000) or (B) where the action is not conditioned on
obtaining the consent of the lender);
(ix) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause in any Serviced Mortgage Loan (other than in circumstances
involving a Performing Serviced Mortgage Loan with a principal balance
of less than $2,500,000);
(x) any determination with respect to a Serviced Mortgage
Loan with a principal balance of $2,500,000 or more as to whether a
default under the related Mortgage Loan Documents arising by reason of
any failure on the part of the related Borrower to maintain specific
insurance coverage with respect to, or an all-risk casualty insurance
policy that does not specifically exclude, terrorist or similar acts,
and/or any failure on the part of the related Borrower to maintain
insurance coverage with respect to terrorist or similar acts upon terms
no less favorable than those in place as of the Closing Date,
constitutes an Acceptable Insurance Default;
(xi) any waiver of Default Charges with respect to a
Serviced Mortgage Loan where there is no Additional Master Servicing
Compensation or Additional Special Servicing Compensation, as
applicable, to offset the outstanding Advance Interest, property
inspection costs or other Additional Trust Fund Expenses with respect
to such Mortgage Loan that would otherwise be offset by such Default
Charges; provided that this clause (xi) shall not apply to the first
such waiver with respect to any Serviced Mortgage Loan; and
(xii) any approval of a Borrower incurring unsecured debt
in addition to (A) trade receivables, (B) equipment financing and (C)
other debt incurred in the ordinary course of business (other than, in
each case, (X) in circumstances involving a Mortgage Loan with a
principal balance of less than $2,500,000 or (Y) where the action is
not conditioned on obtaining the consent of the lender);
provided that, with respect to Performing Serviced Mortgage Loans, the 10
Business Days (or, if applicable, three Business Days) within which the
Controlling Class Representative must object shall coincide with the Special
Servicer's 10-Business Day (or, if applicable, the three-Business Day) period to
object set forth in Sections 3.03(d), 3.08, 3.20(a)(i), 3.20(f) and 3.20(h); and
provided, further, that, in the event that the Special Servicer determines that
immediate action is necessary to protect the interests of the Certificateholders
(as a collective whole), the Special Servicer may take any such action without
waiting for the Controlling Class Representative's response; and provided,
further, that the foregoing rights of the Controlling Class Representative shall
not relate to the [Separately Serviced Mortgage Loan] or any [Separately
Serviced Mortgage Loan] REO Property; and provided, further, that the Special
Servicer shall notify the Controlling Class Representative (but shall not
require the consent or deemed consent thereof) with regard to any action
identified in clauses (v) through (vii) of this sentence
-173-
that the Master Servicer or the Special Servicer proposes to take that does not
require the consent of the Controlling Class Representative pursuant to the
terms of such clause.
In addition, subject to Section 3.24(b), the Controlling Class
Representative may direct the Special Servicer to take, or to refrain from
taking, such actions with respect to any Serviced Mortgage Loan or Administered
REO Property as the Controlling Class Representative may deem advisable or as to
which provision is otherwise made herein. Upon reasonable request, the Special
Servicer shall provide the Controlling Class Representative with any information
in the Special Servicer's possession with respect to such matters, including,
without limitation, its reasons for determining to take a proposed action;
provided that such information shall also be provided, in an electronic format,
to the Trustee, who shall make it available for review pursuant to Section
8.12(b) unless making it so available would cause material harm to the interests
of the Trust.
(b) Notwithstanding anything herein to the contrary, (i)
neither the Special Servicer nor the Master Servicer shall have any right or
obligation to consult with or to seek and/or obtain consent or approval from any
Controlling Class Representative prior to acting, and provisions of this
Agreement requiring such shall be of no effect, during the period following any
resignation or removal of a Controlling Class Representative until a replacement
is selected, and (ii) no advice, direction or objection from or by the
Controlling Class Representative, as contemplated by Section 3.24(a) or any
other provision of this Agreement, may (and the Special Servicer shall ignore
and act without regard to any such advice, direction or objection that the
Special Servicer has determined, in its reasonable, good faith judgment, would)
(A) require or cause the Special Servicer or the Master Servicer to violate
applicable law, the terms of any Mortgage Loan or any other Section of this
Agreement, including the Special Servicer's and Master Servicer's respective
obligations to act in accordance with the Servicing Standard, (B) result in an
Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust
Event with respect to either Grantor Trust Pool, (C) expose the Trust, the
Depositor, the Underwriters, the Master Servicer, the Special Servicer, any
Fiscal Agent or the Trustee, or any of their respective Affiliates, officers,
directors, members, managers, employees or agents, to any material claim, suit
or liability, or (D) materially expand the scope of the Special Servicer's or
the Master Servicer's responsibilities under this Agreement. Furthermore, no
Asset Status Report shall provide for or contemplate the taking of any action
that would have any of the effects described in clause (ii)(A), clause (ii)(B),
clause (ii)(C) and/or clause (ii)(D) of the preceding sentence.
(c) Each Certificateholder acknowledges and agrees, by
its acceptance of its Certificates or an interest therein that: (i) the
Controlling Class Representative may have special relationships and interests
that conflict with those of Holders of one or more Classes of Certificates; (ii)
the Controlling Class Representative may act solely in the interests of the
Holders of the Controlling Class; (iii) the Controlling Class Representative
does not have any duties to the Holders and Certificate Owners of any Class of
Certificates other than the Controlling Class; (iv) the Controlling Class
Representative may take actions that favor interests of the Holders of the
Controlling Class over the interests of the Holders of one or more other Classes
of Certificates; and (v) the Controlling Class Representative shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Controlling Class Representative or any director,
officer, employee, agent or principal thereof for having so acted.
(d) If the [Separately Serviced Mortgage Loan] Group
becomes specially serviced in accordance with the terms of a [Separately
Serviced Mortgage Loan] Servicing Agreement and, pursuant
-174-
to the [Separately Serviced Mortgage Loan] A/A Intercreditor Agreement, the
[Other CMBS Series] Trustee or other holder of the [Separately Serviced Mortgage
Loan] Pari Passu Companion Loan or its servicing agent notifies the Trustee or
the Master Servicer that the Trustee, as holder of the [Separately Serviced
Mortgage Loan], or its designee, is entitled to certain consultation rights with
respect to the [Separately Serviced Mortgage Loan] or any [Separately Serviced
Mortgage Loan] REO Loan and/or forwards a copy of its "Asset Status Report" (as
defined in the [Separately Serviced Mortgage Loan] A/A Intercreditor Agreement)
to the Trustee or the Master Servicer, then the Trustee or the Master Servicer,
as applicable, shall promptly within one Business Day so notify, and shall
forward the copy of such Asset Status Report to, the Special Servicer and the
Controlling Class Representative. For so long as the Trustee or its designee is
entitled to such consultation rights under the terms of the [Separately Serviced
Mortgage Loan] A/A Intercreditor Agreement, the Trustee hereby delegates such
consultation rights to the Special Servicer, who shall exercise them in
consultation with the Controlling Class Representative.
In addition, if pursuant to the terms of the [Separately
Serviced Mortgage Loan] A/A Intercreditor Agreement, upon the occurrence of an
event of default under the [Separately Serviced Mortgage Loan] Loan Group, the
Trustee, as holder of the [Separately Serviced Mortgage Loan], has the right to
purchase the [Separately Serviced Mortgage Loan] Pari Passu Companion Loan at
the price set forth in the [Separately Serviced Mortgage Loan] A/A Intercreditor
Agreement, then the Trustee shall promptly so notify all of the Controlling
Class Certificateholders. Any single Certificateholder or group of
Certificateholders entitled to a majority of the Voting Rights allocated to the
Controlling Class may indicate to the Trustee in writing its or their intent to
purchase the [Separately Serviced Mortgage Loan] Pari Passu Companion Loan in
accordance with Section 3.6 of the [Separately Serviced Mortgage Loan] A/A
Intercreditor Agreement and/or any corresponding provision of a [Separately
Serviced Mortgage Loan] Servicing Agreement, whereupon the Trustee shall
designate such Certificateholder or group of Certificateholders as its designee
to so purchase the [Separately Serviced Mortgage Loan] Pari Passu Companion
Loan, in its or their individual capacity and not on behalf of the Trust, in
accordance with such Section 3.6 of the [Separately Serviced Mortgage Loan] A/A
Intercreditor Agreement and/or any corresponding provision of a [Separately
Serviced Mortgage Loan] Servicing Agreement. Any such purchase will be subject
to all applicable provisions of, and at the price set forth in, the [Separately
Serviced Mortgage Loan] A/A Intercreditor Agreement (including those provisions
that mandate who may be a permitted transferee of the [Separately Serviced
Mortgage Loan] Pari Passu Companion Loan). Upon any such purchase, such
Certificateholder or group of Certificateholders shall constitute the "A-1
Noteholder" under the [Separately Serviced Mortgage Loan] A/A Intercreditor
Agreement, and the [Separately Serviced Mortgage Loan] shall be serviced and
administered in accordance with Article XII of this Agreement. The Trustee shall
reasonably cooperate with such Certificateholder or Certificateholders in
effecting such purchase.
-175-
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall withdraw
from the Distribution Account the Standard Available Distribution Amount for
such Distribution Date and shall apply the withdrawn funds for the following
purposes and in the following order of priority, in each case to the extent of
the remaining portion of such Standard Available Distribution Amount:
first, to make distributions of interest to the Holders of the
Class A-1 Certificates, the Holders of the Class A-2 Certificates, the
Holders of the Class A-3 Certificates, the Holders of the Class X-1
Certificates and the Holders of the Class X-2 Certificates, up to, and
pro rata as among such Classes of Certificateholders based on, their
respective Interest Distribution Amounts for such Distribution Date;
second, to make distributions of principal to the Holders of
the Class A-1 Certificates, the Holders of the Class A-2 and/or the
Holders of the Class A-3 Certificates as follows--
(i) prior to the occurrence of the Final
Distribution Date or any Senior Principal Distribution
Cross-Over Date, sequentially to the Holders of the Class A-1
Certificates, up to their Principal Distribution Amount for
such Distribution Date, then to the Holders of the Class A-2
Certificates, up to their Principal Distribution Amount for
such Distribution Date, and then to the Holders of the Class
A-3 Certificates, up to their Principal Distribution Amount
for such Distribution Date; and
(ii) on and after the occurrence of any Senior
Principal Distribution Cross-Over Date, and in any event on
the Final Distribution Date, to the Holders of the Class A-1
Certificates, the Holders of the Class A-2 Certificates and
the Holders of the Class A-3 Certificates, up to, and pro rata
as between such Classes of Certificateholders based on, their
respective Principal Distribution Amounts for such
Distribution Date; and
third, to reimburse the Holders of the Class A-1 Certificates,
the Holders of the Class A-2 Certificates and the Holders of the Class
A-3 Certificates for any Unfunded Principal Balance Reductions
previously incurred thereby, up to, and pro rata as between such
Classes of Certificateholders based on, their respective Loss
Reimbursement Amounts for such Distribution Date.
Any distributions of interest made with respect to the Class
X-2 Certificates on any Distribution Date pursuant to clause first of the prior
paragraph of this Section 4.01(a) shall be deemed allocated among the respective
Group X-2 REMIC III Regular Interests on a pro rata basis in accordance with the
respective Interest Distribution Amounts of the Group X-2 REMIC III Regular
Interests for such Distribution Date.
(b) On each Distribution Date, following the
distributions on the Senior Certificates to be made on such date pursuant to
Section 4.01(a), the Trustee shall apply any remaining portion of the
-176-
Standard Available Distribution Amount for such Distribution Date to make
distributions to the Holders of the respective Classes of the Subordinate
Principal Balance Certificates, in the following order and, in the case of each
such Class of Subordinate Principal Balance Certificates, up to the lesser of
(i) the total of the Interest Distribution Amount, the Principal Distribution
Amount and the Loss Reimbursement Amount with respect to such Class of
Certificates for such Distribution Date and (ii) the remaining portion of the
Standard Available Distribution Amount for such Distribution Date (after taking
into account all prior distributions made on such Distribution Date pursuant to
Section 4.01(a) and this Section 4.01(b)): first, to the Holders of the Class B
Certificates; second, to the Holders of the Class C Certificates; third, to the
Holders of the Class D Certificates; fourth, to the Holders of the Class E
Certificates; fifth, to the Holders of the Class F Certificates; sixth, to the
Holders of the Class H Certificates; seventh, to the Holders of the Class J
Certificates; eighth, to the Holders of the Class K Certificates; ninth, to the
Holders of the Class L Certificates; tenth, to the Holders of the Class M
Certificates; eleventh, to the Holders of the Class N Certificates; twelfth, to
the Holders of the Class P Certificates; thirteenth, to the Holders of the Class
Q Certificates; fourteenth, to the Holders of the Class S Certificates; and
fifteenth, to the Holders of the Class T Certificates;.
Amounts distributable to the Holders of any Class of
Subordinate Principal Balance Certificates on any Distribution Date pursuant to
this Section 4.01(b) shall be applied:
first, to make distributions of interest to the Holders of
such Class of Certificates, up to their Interest Distribution Amount
for such Distribution Date;
second, to make distributions of principal to the Holders of
such Class of Certificates, up to their Principal Distribution Amount
for such Distribution Date; and
third, to reimburse the Holders of such Class of Certificates
for any Unfunded Principal Balance Reductions previously incurred
thereby, up to their Loss Reimbursement Amount for such Distribution
Date.
(c) On each Distribution Date, following the
distributions on the REMIC III Regular Interest Certificates to be made on such
date pursuant to Sections 4.01(a) and 4.01(b), the Trustee shall pay any
remaining portion of the Standard Available Distribution Amount for such
Distribution Date to the Holders of the Class R Certificates.
(d) On each Distribution Date, the Trustee shall apply,
for the following purposes and in the following order of priority, any amount
then on deposit in the Distribution Account that represents a Prepayment Premium
collected (including, in the case of the [Separately Serviced Mortgage Loan] or
any [Separately Serviced Mortgage Loan] REO Loan, by the [Separately Serviced
Mortgage Loan] Master Servicer or the [Separately Serviced Mortgage Loan]
Special Servicer on behalf of the Trust) with respect to any Mortgage Loan or
successor REO Loan as of the end of the Collection Period for such Distribution
Date:
first, to make distributions of additional interest to the
Holders of the respective Classes of the Yield Maintenance
Certificates, up to, and pro rata as among such Classes of
Certificateholders based on, their respective applicable Additional
Yield Amounts; and
second, to make distributions of additional interest to the
Holders of the Class X-1 Certificates, up to the remaining portion, if
any, of such Prepayment Premiums.
-177-
For purposes of determining the portion of any Prepayment
Premium that is distributable to the Holders of any Class of Yield Maintenance
Certificates on any Distribution Date, the applicable "Additional Yield Amount"
shall be an amount equal to the product of: (i) the amount of such Prepayment
Premium; multiplied by (ii) a fraction (not greater than one or less than zero),
the numerator of which is equal to the excess, if any, of (A) the Pass-Through
Rate applicable to such Class of Yield Maintenance Certificates for the
corresponding Interest Accrual Period, over (B) the relevant Discount Rate (as
defined below), and the denominator of which is equal to the excess, if any, of
(X) the Mortgage Rate for the Mortgage Loan (or any successor REO Loan) in
respect of which such Prepayment Premium was received, over (Y) the relevant
Discount Rate; multiplied by (iii) a fraction (not greater than one or less than
zero), the numerator of which is equal to the Principal Distribution Amount with
respect to such Class of Yield Maintenance Certificates for such Distribution
Date, and the denominator of which is equal to the Total Principal Distribution
Amount for such Distribution Date.
For purposes of determining the portion of any Prepayment
Premium that is distributable to the Holders of any Class of Yield Maintenance
Certificates on any Distribution Date, the relevant "Discount Rate" shall equal
the Yield Maintenance Interest Rate for the prepaid Mortgage Loan (or any
successor REO Loan); provided that, if a "No" is indicated with respect to the
prepaid Mortgage Loan (or any successor REO Loan) on the Mortgage Loan Schedule
under the heading "Yield Maintenance Interest Rate Converted to Monthly Mortgage
Rate", then the relevant "Discount Rate" shall be the nominal interest rate that
when compounded monthly would have an annual yield that is equivalent to the
annual yield obtained by compounding the Yield Maintenance Interest Rate for the
prepaid Mortgage Loan (or any successor REO Loan) on a semi-annual basis; and
the relevant Yield Maintenance Interest Rate for any prepaid Mortgage Loan (or
any successor REO Loan) shall be determined by the Trustee, in good faith, in
accordance with the definition of "Yield Maintenance Interest Rate".
(e) On each Distribution Date, the Trustee shall withdraw
from the Distribution Account any amounts then on deposit in the Class Y
Sub-Account of the Distribution Account that represent Post-ARD Additional
Interest collected in respect of the ARD Mortgage Loans or any successor REO
Loans during or prior to the Collection Period for such Distribution Date and
shall distribute such amounts to the Holders of the Class Y Certificates.
(f) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
Holders of such Certificates based on their respective Percentage Interests.
Except as otherwise provided below, all such distributions made with respect to
each Class of Certificates on each Distribution Date shall be made to the
Holders of such Certificates of record at the close of business on the related
Record Date and, in the case of each such Holder, shall be made by wire transfer
of immediately available funds to the account thereof at a bank or other entity
having appropriate facilities therefor, if such Holder shall have provided the
Trustee with wiring instructions no later than the related Record Date (which
wiring instructions may be in the form of a standing order applicable to all
subsequent Distribution Dates), and otherwise shall be made by check mailed to
the address of such Holder 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 portion
of a previously incurred Unfunded Principal Balance Reduction allocable to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution. Any distribution that is to be made
-178-
with respect to a Principal Balance Certificate in reimbursement of any portion
of an Unfunded Principal Balance Reduction allocable to such Certificate, 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 Holder that surrendered such Certificate at the last address set
forth for such Holder in the Certificate Register or at any other address of
which the Trustee was subsequently notified in writing.
(g) 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 such
indirect participating brokerage firm shall be responsible for disbursing funds
to the related Certificate Owners that it represents. None of the parties hereto
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 the Letters of Representations among the Depositor,
the Trustee and the initial Depository, copies of which Letters of
Representations are attached hereto as Exhibit C.
(h) The rights of the Certificateholders to receive
distributions from the proceeds of the Trust Fund in respect of their
Certificates, and all rights and interests of the Certificateholders in and to
such distributions, shall be as set forth in this Agreement. Neither the Holders
of any Class of Certificates nor any party hereto shall in any way be
responsible or liable to the Holders of any other Class of Certificates in
respect of amounts previously distributed on the Certificates in accordance with
this Agreement.
(i) Except as otherwise provided in Section 9.01,
whenever the Trustee expects that the final distribution with respect to any
Class of Certificates will be made on the next Distribution Date (such final
distribution to be determined, in the case of a Class of Principal Balance
Certificates, without regard to any possible future reimbursement of any portion
of a previously incurred Unfunded Principal Balance Reduction in respect of such
Class), the Trustee shall, as promptly as possible (and, in any event, no later
than two Business Days) after the related Determination Date, mail to each
Holder of such Class of Certificates of record 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 credited to, and
shall be held uninvested in trust in, 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(i) 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
-179-
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 Certificateholders following the first anniversary
of the delivery of such second notice to the non-tendering Certificateholders
shall be paid out of such funds. No interest shall accrue or be payable to any
former Holder on any amount held in trust pursuant to this paragraph. If any
Certificates as to which notice has been given pursuant to this Section 4.01(i),
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, then, subject to applicable escheat laws, the
Trustee shall distribute to the Class R Certificateholders all unclaimed funds.
(j) 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 payments or advances of interest or original issue
discount to any Certificateholder pursuant to federal withholding requirements,
the Trustee shall indicate the amount withheld to such Certificateholder.
(k) All distributions of accrued interest made with
respect to the Class X-1 Certificates on each Distribution Date pursuant to
clause first of Section 4.01(a) shall be deemed to have first been distributed
from REMIC II to REMIC III on such Distribution Date as accrued interest with
respect to the various REMIC II Regular Interests, up to, and pro rata as among
the REMIC II Regular Interests based on, the aggregate of the Class X-1 Portion
of the Current Interest Distribution Amount and the Class X-1 Portion of the
Carryforward Interest Distribution Amount with respect to each such REMIC II
Regular Interest for such Distribution Date. In addition, all distributions of
additional interest (in the form of Prepayment Premiums) made with respect to
the Class X-1 Certificates on each Distribution Date pursuant to Section 4.01(d)
shall be deemed to have first been distributed from REMIC II to REMIC III on
such Distribution Date as additional interest (in the form of Prepayment
Premiums) with respect to the various REMIC II Regular Interests, pro rata in
accordance with the respective amounts of principal deemed distributed with
respect to each such REMIC II Regular Interest for such Distribution Date as
provided below in this Section 4.01(k).
All distributions of accrued interest made with respect to the
Class X-2 Certificates on each Distribution Date pursuant to clause first of
Section 4.01(a), and allocable to any particular Group X-2 REMIC III Regular
Interest, shall be deemed to have first been distributed from REMIC II to REMIC
III on such Distribution Date as accrued interest with respect to the
Corresponding REMIC II Regular Interest in respect of such Group X-2 REMIC III
Regular Interest as part of such REMIC II Regular Interest's Interest
Distribution Amount for such Distribution Date.
All distributions made with respect to each Class of Principal
Balance Certificates on each Distribution Date pursuant to Section 4.01(a),
Section 4.01(b) or Section 4.01(d) shall be deemed to have first been
distributed from REMIC II to REMIC III on such Distribution Date with respect to
the Corresponding REMIC II Regular Interest(s) for such Class of Certificates.
In each case, if such distribution on any such Class of Principal Balance
Certificates was a distribution of accrued interest (as part of the related
Interest Distribution Amount for the subject Distribution Date), of principal,
of additional interest (in the form of Prepayment Premiums) or in reimbursement
of any related Unfunded
-180-
Principal Balance Reductions with respect to such Class of Certificates, then
the corresponding distribution deemed to be made on the Corresponding REMIC II
Regular Interest(s) for such Class of Certificates pursuant to the preceding
sentence shall be deemed also to be a distribution of accrued interest (as part
of the Interest Distribution Amount(s) in respect of such REMIC II Regular
Interest(s) for the subject Distribution Date), of principal, of additional
interest (in the form of Prepayment Premiums) or in reimbursement of any related
Unfunded Principal Balance Reductions with respect to such REMIC II Regular
Interest(s).
Each Class of Principal Balance Certificates shall have one
Corresponding REMIC II Regular Interest, except for the Class A-2 Certificates,
which shall have two Corresponding REMIC II Regular Interests. Deemed
distributions of accrued interest made on REMIC II Regular Interest A-2A and
REMIC II Regular Interest A-2B shall be allocated between those two REMIC II
Regular Interests on a pro rata basis in accordance with their respective
Interest Distribution Amounts for the subject Distribution Date. Deemed
distributions of principal made on REMIC II Regular Interest A-2A and REMIC II
Regular Interest A-2B shall be allocated first to REMIC II Regular Interest
A-2A, until its Uncertificated Principal Balance is reduced to zero, and then to
REMIC II Regular Interest A-2B. Deemed distributions of additional interest (in
the form of Prepayment Premiums) made on REMIC II Regular Interest A-2A and
REMIC II Regular Interest A-2B shall be allocated entirely to REMIC II Regular
Interest A-2A, for so long as its Uncertificated Principal Balance is greater
than zero, and then to REMIC II Regular Interest A-2B. Deemed distributions in
reimbursement of Unfunded Principal Balance Reductions made on REMIC II Regular
Interest A-2A and REMIC II Regular Interest A-2B shall be allocated between
those two REMIC II Regular Interests on a pro rata basis in accordance with
their respective Loss Reimbursement Amounts for the subject Distribution Date.
The actual distributions made by the Trustee on each
Distribution Date with respect to the Certificates pursuant to Section 4.01(a),
Section 4.01(b), Section 4.01(c) (to the extent such distributions relate to the
REMIC III Residual Interest) or Section 4.01(d), as applicable, shall be deemed
to have been so made from the amounts deemed distributed with respect to the
REMIC II Regular Interests on such Distribution Date pursuant to this Section
4.01(k). Notwithstanding the deemed distributions on the REMIC II Regular
Interests described in this Section 4.01(k), actual distributions of funds from
the Distribution Account shall be made only in accordance with Section 4.01(a),
Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 4.01(e), as
applicable.
(l) On each Distribution Date, immediately prior to
making any actual distributions on the Certificates pursuant to Section 4.01(a),
Section 4.01(b) or Section 4.01(c), or the corresponding deemed distributions on
the REMIC II Regular Interests pursuant to Section 4.01(k), the Trustee shall be
deemed to have made out of the Standard Available Distribution Amount for such
Distribution Date, the following distributions to REMIC II in the following
order of priority, in each case to the extent of the remaining portion of such
Standard Available Distribution Amount:
first, distributions of interest with respect to all of the
REMIC I Regular Interests, up to, and pro rata as among such REMIC I
Regular Interests based on, their respective Interest Distribution
Amounts for such Distribution Date;
second, distributions of principal with respect to all of the
REMIC I Regular Interests, up to, and pro rata as among such REMIC I
Regular Interests based on, their respective Principal Distribution
Amounts for such Distribution Date; and
-181-
third, reimbursements of Unfunded Principal Balance Reductions
with respect to all of the REMIC I Regular Interests (including any
REMIC I Regular Interests whose Uncertificated Principal Balances have
previously been reduced to zero), up to, and pro rata as among such
REMIC I Regular Interests based on, their respective Loss Reimbursement
Amounts for such Distribution Date.
Furthermore, on each Distribution Date, immediately prior to
making any actual distributions on the REMIC III Regular Interest Certificates
pursuant to Section 4.01(d), or the corresponding deemed distributions on the
REMIC II Regular Interests pursuant to Section 4.01(k), the Trustee shall be
deemed to have distributed to REMIC II each Prepayment Premium then on deposit
in the Distribution Account that was received (including, in the case of the
[Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan]
REO Loan, by the [Separately Serviced Mortgage Loan] Master Servicer or the
[Separately Serviced Mortgage Loan] Special Servicer on behalf of the Trust) on
or with respect to any Mortgage Loan or successor REO Loan during or prior to
the Collection Period for such Distribution Date, such distribution to be deemed
made with respect to the REMIC I Regular Interest that relates to such Mortgage
Loan or REO Loan, as the case may be.
The distributions deemed made by the Trustee on each
Distribution Date with respect to the REMIC II Regular Interests pursuant to
Section 4.01(k), as well as the distributions actually made by the Trustee on
each Distribution Date with respect to the Certificates pursuant to Section
4.01(a), Section 4.01(b), Section 4.01(c) (to the extent such distributions
relate to the REMIC II Residual Interest or the REMIC III Residual Interest) or
Section 4.01(d), shall be deemed to have been so made from the amounts deemed
distributed with respect to the REMIC I Regular Interests on such Distribution
Date pursuant to this Section 4.01(l). Notwithstanding the deemed distributions
on the REMIC I Regular Interests described in this Section 4.01(l), actual
distributions of funds from the Distribution Account shall be made only in
accordance with Section 4.01(a), Section 4.01(b), Section 4.01(c), Section
4.01(d) or Section 4.01(e), as applicable.
SECTION 4.02. Statements to Certificateholders; Certain
Other Reports.
(a) Based solely on information provided to the Trustee
by the Master Servicer and the Special Servicer pursuant to Sections 3.12,
4.02(b) and 4.02(c), the Trustee shall prepare (or cause to be prepared) and, on
each Distribution Date, provide or make available electronically (or, upon
request, by first class mail) to the Depositor, the Master Servicer, the Special
Servicer, the Underwriters, the Rating Agencies, the Controlling Class
Representative, Charter Research Corporation, The Xxxxx Group, Intex Solutions,
Inc., each Certificateholder and, to the extent that the Trustee has in
accordance with Section 5.06(b) confirmed the Ownership Interest in the
Certificates held thereby, each Certificate Owner a statement substantially in
the form of, and containing the information set forth in, Exhibit E-1 hereto
(the "Statement to Certificateholders"), detailing the distributions on such
Distribution Date and the performance, both in the aggregate and individually to
the extent available, of the Mortgage Loans and the Mortgaged Properties;
provided that the Trustee need not deliver to the Depositor, the Master
Servicer, the Special Servicer, the Mortgage Loan Sellers, the Underwriters,
Charter Research Corporation, The Xxxxx Group, Intex Solutions, Inc., the Rating
Agencies or the Controlling Class Representative any Statement to
Certificateholders that has been made available via the Trustee's Internet
Website as provided below; and provided, further, that the Trustee has no
affirmative obligation to discover the identities of Certificate Owners and need
only react to Persons claiming to be Certificate Owners in accordance with
Section 5.06; and provided, further, that the Trustee shall not provide
-182-
Charter Research Corporation, The Xxxxx Group and Intex Solutions, Inc. any
information regarding the Certificates until the Depositor confirms to the
Trustee that CGMI has sold all of its Non-Registered Certificates to
unaffiliated third parties; and provided, further, that during any period that
reports are required to be filed with the Commission with respect to the Trust
pursuant to Section 15(d) of the Exchange Act, each recipient of the Statement
to Certificateholders shall be deemed to have agreed to keep confidential the
information therein until such Statement to Certificateholders is filed with the
Commission, and the Statement to Certificateholders (or, if presented via the
Trustee's Internet Website, such website) shall bear a legend to the following
effect:
No recipient shall use or disclose the information contained
in this statement/report/file in any manner which could result
in a violation of any provision of the Securities Act of 1933
or the Securities Exchange Act of 1934 or would require
registration of any Non-Registered Certificates pursuant to
Section 5 of the Securities Act of 1933.
On each Distribution Date, the Trustee shall also provide or
make available electronically (or, upon request, by first class mail) to the
Depositor, the Master Servicer, the Special Servicer, the Underwriters, the
Rating Agencies, the Controlling Class Representative, each Certificateholder
(and each Certificate Owner that is receiving a Statement to Certificateholders
on such Distribution Date), at the same time that the Statement to
Certificateholders is delivered thereto, the CMSA Collateral Summary File, the
CMSA Bond Level File and, to the extent received by the Trustee since the prior
Distribution Date (or, in the case of the initial Distribution Date, since the
Closing Date), each other file and report comprising the CMSA Investor Reporting
Package; provided that during any period that reports are required to be filed
with the Commission with respect to the Trust pursuant to Section 15(d) of the
Exchange Act, each recipient of such CMSA Investor Reporting Package files and
reports shall be deemed to have agreed to keep confidential the information in
any such file or report until such particular file or report is filed with the
Commission, and each such file and report (or, if presented via the Trustee's
Internet Website, such website) shall bear a legend to the following effect:
No recipient shall use or disclose the information contained
in this statement/report/file in any manner which could result
in a violation of any provision of the Securities Act of 1933
or the Securities Exchange Act of 1934 or would require
registration of any Non-Registered Certificates pursuant to
Section 5 of the Securities Act of 1933.
The Trustee shall have no obligation to provide the
information or reports described in this Section 4.02(a) until it has received
the requisite information or reports from the Master Servicer, and the Trustee
shall not be in default hereunder due to a delay in providing the
Certificateholder Reports caused by the Master Servicer's failure to timely
deliver any information or reports hereunder. 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 Borrower or third party, and
accepted by it in good faith, 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. 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 Borrower, a third
party or each other.
-183-
The Trustee shall make available each month, to
Certificateholders, Certificate Owners, prospective investors and any other
interested party, via the Trustee's Internet Website, in a downloadable format,
all Statements to Certificateholders, the CMSA Bond Level File, the CMSA
Collateral Summary File, the Unrestricted Servicer Reports (to the extent
received) (which in each case, if applicable will identify each Mortgage Loan by
mortgage loan number and property name, if any) and, with the consent or at the
direction of the Depositor, such other information regarding the Certificates
and/or the Mortgage Loans as the Trustee may have in its possession; provided
that, unless (i) the particular report or information has been filed with the
Commission pursuant to Section 8.15 or (ii) the Depositor has notified the
Trustee that CGMI has sold the Non-Registered Certificates to unaffiliated third
parties, access to such reports and information on the Trustee's Internet
Website will be restricted to the same extent, and limited to the same Persons,
as the Restricted Servicer Reports. The Trustee shall, to the extent received,
make the Restricted Servicer Reports available each month, via the Trustee's
Internet Website, to any Certificateholder, Certificate Owner, any Person
identified by any Certificateholder or Certificate Owner as a prospective
transferee of a Certificate or interest therein, the other parties hereto, the
Underwriters, the Controlling Class Representative or any Rating Agency, on a
restricted basis upon receipt by the Trustee from such Person of a certification
substantially in the form of Exhibit K-1 or Exhibit K-2, as applicable; provided
that the Trustee shall provide such access to each party hereto, the
Underwriters, the Controlling Class Representative and each Rating Agency
without requiring such certification. In addition, the Trustee is hereby
directed and authorized to make available, as a convenience to interested
parties (and not in furtherance of the distribution of the Prospectus or the
Prospectus Supplement under the securities laws), this Agreement, the Prospectus
and the Prospectus Supplement via the Trustee's Internet Website. The Trustee
will make no representations or warranties as to the accuracy or completeness of
such documents and will assume no responsibility therefor.
The Trustee's Internet Website shall be located at
"__________" or at such other address as shall be specified by the Trustee from
time to time in the Statement to Certificateholders and in one or more written
notices delivered to the other parties hereto, the Controlling Class
Representative (if any), the Certificateholders and the Rating Agencies. In
connection with providing access to the Trustee's Internet Website and
electronic bulletin board, the Trustee may require registration and the
acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement. 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, access to information
regarding the Trust on the Trustee's Internet Website will be conditioned to the
party attempting to gain such access electronically agreeing to keep
confidential any such information that has not been filed with the Commission.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Statement to Certificateholders and may
affix thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
(b) The Master Servicer may maintain an Internet Website
which may, subject to applicable law, contain the information and reports
required to be produced by the Master Servicer. Access by Certificateholders,
Certificate Owners, the Controlling Class Representative, the Depositor and the
Rating Agencies may be subject to registration, using a password and user name.
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, access to
information regarding the Trust on the Master Servicer's
-184-
Internet Website will be conditioned to the party attempting to gain such access
electronically agreeing to keep confidential any such information that has not
been filed with the Commission.
(c) Within a reasonable period of time after the end of
each calendar year, the Trustee shall prepare, or cause to be prepared, and mail
to each Person who at any time during the calendar year was a Certificateholder
(i) a statement containing the aggregate information set forth on page 2 of the
Statement to Certificateholders, a form of which is attached hereto as Exhibit
E-1, for such calendar year or applicable portion thereof during which such
person was a Certificateholder and (ii) such other customary information as the
Trustee deems necessary or desirable for Certificateholders to prepare their
federal, state and local income tax returns, including the amount of original
issue discount accrued on the Certificates, if applicable. The obligations of
the Trustee in the immediately preceding sentence shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code. As soon as
practicable following the request of any Certificateholder in writing, the
Trustee shall furnish to such Certificateholder such information regarding the
Mortgage Loans and the Mortgaged Properties as such Certificateholder may
reasonably request and, as has been furnished to, or may otherwise be in the
possession of, the Trustee. The Master Servicer and the Special Servicer each
shall promptly provide to the Depositor and the Trustee such information
regarding the Mortgage Loans and the Mortgaged Properties as such party may
reasonably request and at the requesting party's expense, and that has been
furnished to, or may otherwise be in the possession of, the Master Servicer or
the Special Servicer, as the case may be.
SECTION 4.03. P&I Advances.
(a) On or before 1:00 p.m., New York City time, on each
Master Servicer Remittance Date, the Master Servicer shall, subject to Section
4.03(c), either (i) deposit into the Distribution Account from its own funds an
amount equal to the aggregate amount of P&I Advances, if any, to be made in
respect of the Mortgage Pool for the related Distribution Date, (ii) apply
amounts held in the Collection Account for future distribution to
Certificateholders in subsequent months in discharge of any such obligation to
make such P&I Advances, or (iii) make such P&I Advances in the form of any
combination of (i) and (ii) aggregating the total amount of such P&I Advances to
be made; provided that if Late Collections of any of the delinquent principal
and/or interest in respect of which it is to make such P&I Advances on any
Master Servicer Remittance Date are then on deposit in the Collection Account,
the Master Servicer shall use such Late Collections (net of any Master Servicing
Fees payable therefrom) to make such P&I Advances. Any amounts held in the
Collection Account for future distribution and so used to make P&I Advances
pursuant to the preceding sentence (other than the Late Collections of the
delinquent principal and/or interest contemplated by the proviso to the
preceding sentence) shall be appropriately reflected in the Master Servicer's
records and replaced by the Master Servicer by deposit in the Collection 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/or interest in respect of which such P&I Advances were made).
Unless and until the [Separately Serviced Mortgage Loan] Loan
Group or any [Separately Serviced Mortgage Loan] REO Property is being serviced
and administered in accordance with Article XII, all P&I Advances with respect
to the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage
Loan] REO Loan are required to be made by the [Separately Serviced Mortgage
Loan] Master Servicer (or in the event the [Separately Serviced Mortgage Loan]
Master Servicer fails to do so, and if the [Other CMBS Series PSA] is the
[Separately Serviced Mortgage Loan] Servicing
-185-
Agreement, by the [Other CMBS Series] Trustee), pursuant to, and as and when
required by, a [Separately Serviced Mortgage Loan] Servicing Agreement. If, as
of 1:00 p.m., New York City time, on any Master Servicer Remittance Date,
neither the [Separately Serviced Mortgage Loan] Master Servicer nor any other
party under the [Separately Serviced Mortgage Loan] Servicing Agreement shall
have made the portion of any P&I Advance required to be made pursuant to a
[Separately Serviced Mortgage Loan] Servicing Agreement that is allocable to the
[Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan]
REO Loan (and shall not have delivered to the Master Servicer an officer's
certificate and documentation related to a determination of nonrecoverability of
a P&I Advance as contemplated by a [Separately Serviced Mortgage Loan] Servicing
Agreement), then (subject to Section 4.03(c) below) the Master Servicer shall
make the portion of such P&I Advance that was required to be, but was not, made
by the [Separately Serviced Mortgage Loan] Master Servicer or any other party
under a [Separately Serviced Mortgage Loan] Servicing Agreement by such Master
Servicer Remittance Date pursuant to the [Separately Serviced Mortgage Loan]
Servicing Agreement and that is allocable to the [Separately Serviced Mortgage
Loan] or any [Separately Serviced Mortgage Loan] REO Loan. If the Master
Servicer fails to make any such P&I Advance on the related Master Servicer
Remittance Date, then the Trustee shall make such P&I Advance on the related
Distribution Date in accordance with the last paragraph of this Section 4.03(a).
If the Master Servicer shall not have received, by 1:00 p.m.
(New York City time) on any Master Servicer Remittance Date, any remittance
required to be made under a [Separately Serviced Mortgage Loan] Servicing
Agreement with respect to the [Separately Serviced Mortgage Loan] or any
[Separately Serviced Mortgage Loan] REO Loan on or before such date in the
subject calendar month (whether in the form of a P&I Advance or the pass-through
of collections), then the Master Servicer shall, subject to a determination of
recoverability, advance the amount of such required remittance on such Master
Servicer Remittance Date insofar as such remittance constitutes or relates to a
Monthly Payment or Assumed Monthly Payment with respect to the [Separately
Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan.
Such advance shall be deemed to be a P&I Advance for all purposes hereunder;
provided that no interest shall accrue with respect to such P&I Advance pursuant
to Section 4.03(d) so long as the required remittance is received by the Master
Servicer on such Master Servicer Remittance Date in time for the Master Servicer
to reinvest the funds from such remittance.
If, as of 1:00 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 with respect to any Mortgage Loan or successor REO
Loan 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 pursuant to Section
4.03(c)) or shall not have remitted any portion of the Master Servicer
Remittance Amount required to be remitted on such date, then the Trustee shall
provide notice of such failure to the Master Servicer, 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 Advances by 11:00 a.m.
(New York City time) on the related Distribution Date, then the Trustee, unless
it determines that such Advance would be a Nonrecoverable P&I Advance if made,
shall (from its own funds) deposit in the Distribution Account 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.
(b) The aggregate amount of P&I Advances to be made by
the Master Servicer with respect to the Mortgage Pool for any Distribution Date
(subject to Section 4.03(c) below and, in the case
-186-
of the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage
Loan] REO Loan, further subject to the second paragraph of Section 4.03(a)
above) shall equal the aggregate of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments, in each case net of any related
Master Servicing Fees, due or deemed due, as the case may be, in respect of the
Serviced Mortgage Loans (including Serviced Mortgage Loans that are Balloon
Mortgage Loans delinquent as to their respective Balloon Payments) and any
successor REO Loans on their respective Due Dates in the calendar month in which
such Distribution Date occurs, in each case to the extent such amount was not
paid by or on behalf of the related Borrower or otherwise collected as of the
close of business on the Determination Date in such calendar month; provided
that, if an Appraisal Reduction Amount exists with respect to any Required
Appraisal Loan in the Mortgage Pool, then the interest portion of any P&I
Advance required to be made in respect of such Required Appraisal Loan during
any calendar month shall be reduced (it being herein acknowledged that there
shall be no reduction in the principal portion of such P&I Advance) to equal the
product of (i) the amount of the interest portion of such P&I Advance that would
otherwise be required to be made in respect of such Required Appraisal Loan
during such calendar month without regard to this proviso, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which shall equal the
Stated Principal Balance of such Required Appraisal Loan as of the commencement
of such calendar month, net of the related Appraisal Reduction Amount, and the
denominator of which shall equal the Stated Principal Balance of such Required
Appraisal Loan as of the commencement of such calendar month.
(c) Notwithstanding anything herein to the contrary, no
P&I Advance shall be required to be made hereunder if such P&I Advance would, if
made, constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer (or, if applicable, the Trustee or any Fiscal Agent) that it has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be made by such Person in its
reasonable judgment and shall be evidenced by an Officer's Certificate delivered
to the Depositor, to the Special Servicer, to the Controlling Class
Representative and, if made by the Master Servicer, to the Trustee (on or before
the date on which the proposed P&I Advance is to be made), setting forth the
basis for such determination, accompanied (in the case of the Controlling Class
Representative and otherwise upon request) by a copy of an Appraisal of the
related Mortgaged Property or REO Property performed within the 12 months
preceding such determination by a Qualified Appraiser, if available, and further
accompanied (in the case of the Controlling Class Representative and otherwise
upon request) by any other information, including engineers' reports,
environmental surveys or similar reports, that the Person making such
determination may have obtained and that support such determination. The Trustee
and any Fiscal Agent shall be entitled to conclusively rely on any
nonrecoverability determination made by the Master Servicer with respect to a
particular P&I Advance. With respect to P&I Advances on the [Separately Serviced
Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan, the Master
Servicer and the Trustee shall be entitled to conclusively rely on any
nonrecoverability determination made by the [Separately Serviced Mortgage Loan]
Master Servicer or any other party with advancing obligations under a
[Separately Serviced Mortgage Loan] Servicing Agreement with respect to a
particular P&I Advance. The Special Servicer shall promptly furnish any party
required to make P&I Advances hereunder with any information in its possession
regarding the Specially Serviced Mortgage Loans and Administered REO Properties
as such party required to make P&I Advances may reasonably request. In the case
of any Cross-Collateralized Mortgage Loan, any determination regarding whether
any related P&I Advance constitutes or would constitute a Nonrecoverable P&I
Advance shall take into account the cross-collateralization of the related
Cross-Collateralized Group.
-187-
(d) The Master Servicer, the Trustee and any Fiscal Agent
shall each be entitled to receive interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of each P&I Advance made thereby (with
its own funds), for so long as such P&I Advance is outstanding (or, if the P&I
Advance was made prior to the end of the grace period applicable to the subject
delinquent Monthly Payment, for so long as such P&I Advance is outstanding after
the end of that grace period). Such interest with respect to any P&I Advance
shall be payable: (i) first, in accordance with Section 3.05(a) and/or Section
1.04, out of any Default Charges collected (including, in the case of the
[Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan]
REO Loan, by the [Separately Serviced Mortgage Loan] Master Servicer or the
[Separately Serviced Mortgage Loan] Special Servicer on behalf of the Trust)
with respect to the particular Mortgage Loan or REO Loan as to which such P&I
Advance was made; and (ii) then, after such P&I Advance is reimbursed, but only
if and to the extent that such Default Charges described in the immediately
preceding clause (i) are and have been insufficient to cover such Advance
Interest, out of general collections on the Mortgage Loans and REO Properties on
deposit in the Collection Account. As and to the extent provided in Section
3.05(a), the Master Servicer shall reimburse itself, the Trustee or any Fiscal
Agent, as applicable, for any outstanding P&I Advance made thereby as soon as
practicable after funds available for such purpose are deposited in the
Collection Account, and in no event shall interest accrue in accordance with
this Section 4.03(d) on any P&I Advance as to which the corresponding Late
Collection was received as of the related Master Servicer Remittance Date. The
Master Servicer shall not be entitled to Advance Interest on any particular P&I
Advance made thereby to the extent the payment as to which such P&I Advance was
made, is received but is being held by or on behalf of the Master Servicer in
suspense.
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 Sections
4.01(a) and 4.01(b), 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 T, Class S, Class Q, Class P, Class N, Class M, Class L, Class K,
Class J, Class H, Class F, Class E, Class D, Class C and Class B Certificates
shall be reduced sequentially, in that order, until such excess is reduced to
zero; provided that, no such Class of Certificates shall have its Class
Principal Balance reduced unless and until the Class Principal Balance of each
other Class of Certificates, if any, listed in front of it has been reduced to
zero; and provided, further, that if after the foregoing reductions, the amount
described in clause (i) of the preceding sentence still exceeds the amount
described in clause (ii) of such sentence, then the respective Class Principal
Balances of the Class A-1, Class A-2 and Class A-3 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 to be made in respect of the REMIC II Regular Interests on such
date pursuant to Section 4.01(k), the Trustee shall determine the amount, if
any, by which (i) the then aggregate Uncertificated Principal Balance of all the
REMIC II Regular Interests, 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
-188-
the Uncertificated Principal Balances of REMIC II Regular Interest T, REMIC II
Regular Interest S, REMIC II Regular Interest Q, REMIC II Regular Interest P,
REMIC II Regular Interest N, REMIC II Regular Interest M, REMIC II Regular
Interest L, REMIC II Regular Interest K, REMIC II Regular Interest J, REMIC II
Regular Interest H, REMIC II Regular Interest F, REMIC II Regular Interest E,
REMIC II Regular Interest D, REMIC II Regular Interest C and REMIC II Regular
Interest B shall be reduced sequentially, in that order, until such excess is
reduced to zero; provided that no such REMIC II Regular Interest shall have its
Uncertificated Principal Balance reduced unless and until the Uncertificated
Principal Balance of each other REMIC II Regular Interest, if any, listed in
front of it has been reduced to zero; and provided, further, that if after the
foregoing reductions, the amount described in clause (i) of the preceding
sentence still exceeds the amount described in clause (ii) of such sentence,
then the respective Uncertificated Principal Balances of (A) REMIC II Regular
Interest A-1, (B) REMIC II Regular Interest A-3 and (C) REMIC II Regular
Interest A-2A and REMIC II Regular Interest A-2B, as a collective matter in the
order described in the next sentence, shall be reduced on a pro rata basis in
accordance with the relative sizes of such Uncertificated Principal Balances,
until any such remaining excess is reduced to zero. Any reductions in the
Uncertificated Principal Balances of the REMIC II Regular Interest A-2A and
REMIC II Regular Interest A-2B pursuant to the prior sentence shall be made:
first, to the Uncertificated Principal Balance of REMIC II Regular Interest
A-2A, until such Uncertificated Principal Balance is reduced to zero; and
second, to the Uncertificated Principal Balance of REMIC II Regular Interest
A-2B. All such reductions in the Uncertificated Principal Balances of the
respective REMIC II Regular Interests shall be deemed to constitute allocations
of Realized Losses and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC I Regular Interests pursuant to
Section 4.01(l), the Uncertificated Principal Balance of each REMIC I Regular
Interest (after taking account of such deemed distributions) shall be reduced to
the extent necessary (if at all) to equal the Stated Principal Balance of the
related Mortgage Loan or successor REO Loan, as the case may be, that will be
outstanding immediately following such Distribution Date. All such reductions in
the Uncertificated Principal Balances of the respective REMIC I Regular
Interests shall be deemed to constitute allocations of Realized Losses and
Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
Provided that the Trustee receives the necessary information
from the Master Servicer and/or the Special Servicer, the Trustee shall be
responsible for performing all calculations necessary in connection with the
actual and deemed distributions to be made pursuant to Section 4.01, the
preparation of the Statements to Certificateholders pursuant to Section 4.02(a)
and the actual and deemed allocations of Realized Losses and Additional Trust
Fund Expenses to be made pursuant to Section 4.04. The Trustee shall calculate
the Standard Available Distribution Amount for each Distribution Date and shall
allocate such amount among Certificateholders in accordance with this Agreement.
Absent actual knowledge of an error therein, the Trustee shall have no
obligation to recompute, recalculate or otherwise verify any information
provided to it by the Master Servicer. The calculations by the Trustee
contemplated by this Section 4.05 shall, in the absence of manifest error, be
presumptively deemed to be correct for all purposes hereunder.
-189-
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates shall consist of twenty-two (22
Classes with the following alphabetic or alphanumeric Class designations: "X-1",
"X-2", "X-0", "X-0", "X-0", "X", "C", "D", "E", "F", "H", "J", "K", "L", "M",
"N", "P", "Q", "R", "S", "T" and "Y", respectively. Any reference in any other
section or subsection of this Agreement to any Certificate or Certificates
preceded by a Class designation shall be to a Certificate or Certificates of the
Class so designated in this Section 5.01(a).
(b) The Certificates will be substantially in the
respective forms attached hereto as Exhibits A-1 through A-5; provided, however,
that any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03 beneficial ownership interests in all of
the Principal Balance and Interest Only Certificates shall initially be held and
transferred through the book-entry facilities of the Depository. The REMIC III
Regular Interest Certificates will be issuable only in denominations
corresponding to initial Certificate Principal Balances (or, in the case of the
Interest Only Certificates, initial Certificate Notional Amounts) as of the
Closing Date of: (i) in the case of the Interest Only Certificates, $1,000,000
and any whole dollar denomination in excess thereof; (ii) in the case of the
Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E and Class F
Certificates, $10,000 and any whole dollar denomination in excess thereof; and
(iii) in the case of the other REMIC III Regular Interest Certificates, $100,000
and any whole dollar denomination in excess thereof. The Class R and Class Y
Certificates will be issuable only in denominations representing Percentage
Interests in the related Class of not less than 10%.
(c) The Certificates shall be executed by manual or
facsimile signature by an authorized officer or signatory of the Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized officers or signatories of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
-190-
SECTION 5.02. Registration of Transfer and Exchange of
Certificates.
(a) At all times during the term of this Agreement, there
shall be maintained at the office of the Certificate Registrar a Certificate
Register in which, subject to such reasonable regulations as the Certificate
Registrar (located as of the Closing Date at _______________) may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Trustee is
hereby initially appointed (and hereby agrees to act in accordance with the
terms hereof) as Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided. The
Trustee may appoint, by a written instrument delivered to the other parties
hereto, any other bank or trust company to act as Certificate Registrar under
such conditions as the Trustee may prescribe, provided that the Trustee shall
not be relieved of any of its duties or responsibilities hereunder as
Certificate Registrar by reason of such appointment. If the Trustee resigns or
is removed in accordance with the terms hereof, the successor trustee shall
immediately succeed to its predecessor's duties as Certificate Registrar. The
Depositor, the Master Servicer and the Special Servicer shall each have the
right to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register.
If any Certificateholder makes a written request to the
Trustee, and such request states that such Certificateholder desires to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication that such requesting Certificateholder proposes 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
Certificateholder access during normal business hours to, or deliver to the
requesting Certificateholder a copy of, the most recent list of
Certificateholders held by the Certificate Registrar (which list shall be
current as of a date no earlier than 30 days prior to the Trustee's receipt of
such request). Every Certificateholder, by receiving such access, acknowledges
that neither the Certificate Registrar nor the Trustee will be held accountable
in any way by reason of the disclosure of any information as to the names and
addresses of any Certificateholder regardless of the source from which such
information was derived.
(b) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a transfer of any Non-Registered Certificate (other than a
Book-Entry Non-Registered Certificate) is to be made without registration under
the Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or an Affiliate of the Depositor or, in the case of a Rule 144A Global
Certificate, any transfer of such Certificate to a successor Depository or, in
the case of a Definitive Certificate issued with respect to a Rule 144A Global
Certificate, any transfer of such Certificate to the applicable Certificate
Owner in accordance with Section 5.03(c)), then the Certificate Registrar shall
refuse to register such transfer unless it receives (and, upon receipt, may
conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached hereto as
Exhibit F-1A; or (ii) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached hereto as Exhibit F-1B
and a certificate from such Certificateholder's prospective
-191-
Transferee substantially in the form attached hereto either as Exhibit F-2A or
as Exhibit F-2B; or (iii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust or of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective Transferee on which such
Opinion of Counsel is based.
Each Global Certificate shall be deposited with the Trustee as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository.
If a transfer of an interest in any Rule 144A Global
Certificate is to be made without registration under the Securities Act (other
than in connection with the initial issuance of the Certificates or a transfer
of an interest in such Rule 144A Global Certificate by the Depositor or an
Affiliate of the Depositor), then (except as otherwise provided in the next
succeeding paragraph or in Section 5.03 the Certificate Owner desiring to effect
such transfer shall require from its prospective Transferee: (i) a certificate
substantially in the form attached either as Exhibit F-2C hereto; or (ii) an
Opinion of Counsel to the effect that the prospective Transferee is a Qualified
Institutional Buyer and such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust or
of the Depositor, the Master Servicer, the Special Servicer, the Trustee, any
Fiscal Agent or the Certificate Registrar in their respective capacities as
such). Except as otherwise provided in the next paragraph or in Section 5.03,
any interest in a Rule 144A Global Certificate shall not be transferred to any
Person other than a Qualified Institutional Buyer that takes delivery in the
form of an interest in such Rule 144A Global Certificate. If any Transferee of
an interest in a Rule 144A Global Certificate does not, in connection with the
subject transfer, deliver to the Transferor the Opinion of Counsel or one of the
certifications described in the second preceding sentence, then such Transferee
shall be deemed to have represented and warranted that all the certifications
set forth in Exhibit F-2C hereto are, with respect to the subject transfer, true
and correct.
Notwithstanding the foregoing, any interest in a Rule 144A
Global Certificate 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
Trustee and the Certificate Registrar of (i) a certificate from the Certificate
Owner desiring to effect such transfer substantially in the form attached hereto
as Exhibit F-1C, (ii) such transferee certification and/or opinion as is
contemplated by the second paragraph of this Section 5.02(b) and (iii) 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 a denomination of the transferred interests in such Rule 144A
Global Certificate. Upon delivery to the Trustee and 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, and 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.
-192-
None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify any Class of Non-Registered
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer, sale, pledge or other disposition of any Non-Registered Certificate or
interest therein shall, and does hereby agree to, indemnify the Depositor, CGMI,
the Trustee, any Fiscal Agent, the Master Servicer, the Special Servicer and the
Certificate Registrar against any liability that may result if such transfer,
sale, pledge or other disposition is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
(c) No transfer of any Certificate or interest therein
shall be made to any Plan or 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.
Except in connection with the initial issuance of the
Certificates or any transfer of a Non-Registered Certificate by the Depositor or
an Affiliate of the Depositor or, in the case of a Rule 144A Global Certificate,
any transfer of such Certificate to a successor Depositary or, in the case of a
Definitive Certificate issued with respect to a Rule 144A Global Certificate,
any transfer of such Certificate to the applicable Certificate Owner in
accordance with Section 5.03(c), the Certificate Registrar shall refuse to
register the transfer of a Non-Registered Certificate unless it has received
from the prospective Transferee one of the following: (i) a certification to the
effect that such prospective Transferee is not a Plan and is not directly or
indirectly purchasing such Certificate or interest therein 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 continued holding of such
Certificate by such prospective Transferee is exempt from the prohibited
transaction provisions of Sections 406 and 407 of ERISA and Section 4975 of the
Code by reason of Sections I and III of Prohibited Transaction Class Exemption
95-60; or (iii) in the case of a Non-Registered Certificate (other than a Class
R or Class V Certificate) that is rated investment grade by at least one of the
Rating Agencies and is being acquired by or on behalf of a Plan in reliance on
the Underwriter Exemption, a certification to the effect that such Plan (X) is
an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)(B) of
ERISA) by the Trustee, any Exemption-Favored Party, the Depositor, any Mortgage
Loan Seller, the Master Servicer, the Special Servicer, any Sub-Servicer, any
Person responsible for servicing the [Separately Serviced Mortgage Loan] or any
[Separately Serviced Mortgage Loan] REO Property or any Borrower with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
of all the Mortgage Loans determined as of the Closing Date, or by any Affiliate
of any such Person, and (Z) agrees that it will obtain from each of its
Transferees a written representation that such Transferee, if a Plan, satisfies
the requirements of the immediately preceding clauses (iii)(X) and (iii)(Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y); or (iv) a certification of facts and an Opinion of Counsel (which
Opinion of Counsel shall not be an expense of the Trustee, the Certificate
Registrar or the Trust) which otherwise establish to the reasonable satisfaction
of the Certificate Registrar that such transfer will not result in a violation
of Section 406 or 407 of ERISA or
-193-
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-1 is acceptable for purposes of the
preceding sentence.
Except in connection with the initial issuance of the
Certificates or any transfer of an interest in a Book-Entry Non-Registered
Certificate by the Depositor or an Affiliate of the Depositor, the Certificate
Owner desiring to effect a transfer of an interest in a Book-Entry
Non-Registered Certificate shall obtain from its prospective Transferee one of
the following: (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing such
interest in such Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan; or (ii) a certification to the effect that the
purchase and continued holding of an interest in such Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Sections 406 and 407 of ERISA and Section 4975 of the Code by reason of Sections
I and III of Prohibited Transaction Class Exemption 95-60; or (iii) if such
Certificate is not a Class R or Class Y Certificate, if such Certificate is
rated investment grade by at least one of the Rating Agencies and if the
interest in such Certificate is being acquired by or on behalf of a Plan in
reliance on the Underwriter Exemption, a certification to the effect that such
Plan (X) is an accredited investor as defined in Rule 501(a)(1) of Regulation D
of the Securities Act, (Y) is not sponsored (within the meaning of Section
3(16)(B) of ERISA) by the Trustee, the Depositor, any Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any Sub-Servicer, any Person responsible
for servicing the [Separately Serviced Mortgage Loan] or any [Separately
Serviced Mortgage Loan] REO Property or any Borrower with respect to Mortgage
Loans constituting more than 5% of the aggregate unamortized principal of all
the Mortgage Loans determined as of the Closing Date, or by any Affiliate of any
such Person, and (Z) agrees that it will obtain from each of its Transferees a
written representation that such Transferee, if a Plan, satisfies the
requirements of the immediately preceding clauses (ii)(X) and (ii)(Y), together
with a written agreement that such Transferee will obtain from each of its
Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (ii)(X)
and (ii)(Y); or (iv) a certification of facts and an Opinion of Counsel to the
effect that such transfer will not result in a violation of Section 406 or 407
of ERISA or Section 4975 of the Code or 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-2 is acceptable for purposes of the
preceding sentence.
Each Transferee of any Registered Certificate or interest
therein or of an interest in any Book-Entry Non-Registered Certificate shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) the purchase and continued holding of such Certificate or interest
therein by such Transferee is exempt from the prohibited transaction provisions
of Sections 406 and 407 of ERISA and Section 4975 of the Code.
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Class R Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under clause
(ii)(A) below to deliver or cause the delivery of 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 Class R Certificate are expressly subject to the following
provisions:
-194-
(A) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall be a
Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its
status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Class R Certificate (other
than in connection with a transfer of a Class R
Certificate by the Depositor to an Affiliate of the
Depositor), the Certificate Registrar shall require
delivery to it, and shall not register the Transfer
of any Class R 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 Class R
Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for
so long as it retains its Ownership Interest in a
Class R 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 Class R Certificate to such proposed
Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall agree (1) to
require a Transfer Affidavit and Agreement from any
prospective Transferee (other than in connection with
a transfer of a Class R Certificate by the Depositor
to an Affiliate of the Depositor) to whom such Person
attempts to transfer its Ownership Interest in such
Class R Certificate and (2) not to transfer its
Ownership Interest in such Class R Certificate (other
than in connection with a transfer of a Class R
Certificate by the Depositor or an Affiliate of the
Depositor) unless it provides to the Certificate
Registrar and the Trustee a certificate substantially
in the form attached hereto as Exhibit H-2 stating
that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted
Transferee.
(E) Each Person holding or acquiring an Ownership
Interest in a Class R Certificate, by purchasing such
Ownership Interest, agrees to give the Trustee
written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury
regulation section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring an Ownership Interest in a Class R
Certificate if it is, or is holding an Ownership
Interest in a Class R Certificate on behalf of, a
"pass-through interest holder".
-195-
(ii) (A) If any purported Transferee shall become a
Holder of a Class R Certificate in violation of the
provisions of this Section 5.02(d), then the last
preceding Holder of such Class R Certificate that was
in compliance with the provisions of this Section
5.02(d) shall be restored, to the extent permitted by
law, to all rights as Holder thereof retroactive to
the date of registration of such Transfer of such
Class R Certificate. None of the Depositor, the
Trustee or the Certificate Registrar shall be under
any liability to any Person for any registration of
Transfer of a Class R 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 Class R Certificate in violation of the
restrictions in this Section 5.02(d), then, to the
extent that retroactive restoration of the rights of
the preceding Holder of such Class R 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 Class R Certificate to a Permitted Transferee
selected by the Trustee on such terms as the Trustee
may choose, and the Trustee shall not be liable to
any Person having an Ownership Interest in such Class
R Certificate or any other Person as a result of its
exercise of such discretion. Such purported
Transferee shall promptly endorse and deliver such
Class R Certificate in accordance with the
instructions of the Trustee. Such Permitted
Transferee may be the Trustee itself or any Affiliate
of the Trustee.
(iii) The Trustee shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information
furnished to it by the other parties hereto necessary to compute any
tax imposed (A) as a result of the Transfer of an Ownership Interest in
a Class R Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury regulation sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of the Loan REMIC Residual Interests, the REMIC I Residual
Interest, the REMIC II Residual Interest and the REMIC III Residual
Interest 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 Class R 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 Trustee all
information in its possession necessary for the Trustee to discharge
such obligation. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the Trustee for
providing such information.
-196-
(iv) The provisions of this Section 5.02(d) set forth
prior to this clause (iv) may be modified, added to or eliminated,
provided that there shall have been delivered to the Trustee the
following:
(A) written confirmation from each Rating Agency to the
effect that the modification of, addition to or
elimination of such provisions will not result in an
Adverse Rating Event with respect to any Class of
Rated Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, obtained at the expense
of the party seeking such modification of, addition
to or elimination of such provisions (but in no event
at the expense of the Trustee or the Trust), to the
effect that doing so will not (1) cause any REMIC
Pool to cease to qualify as a REMIC or be subject to
an entity-level tax caused by the Transfer of any
Class R Certificate to a Person which is not a
Permitted Transferee or (2) cause a Person other than
the prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a Class R
Certificate to a Person that is not a Permitted
Transferee.
(e) If a Person is acquiring any Non-Registered
Certificate or any 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 a Book-Entry Certificate, the Transferor) a certification to
the effect that, and such other evidence as may be reasonably required by the
Certificate Registrar (or, in the case of a Book-Entry Certificate, the
Transferor) to confirm that, it has (i) sole investment discretion with respect
to each such account and (ii) full power to make the applicable foregoing
acknowledgments, representations, warranties, certifications and/or agreements
with respect to each such account as set forth in subsections (b), (c) and/or
(d), as appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section
5.02, upon surrender for registration of transfer of any Certificate at the
offices of the Certificate Registrar maintained for such purpose, the Trustee
shall execute, and the Certificate Registrar shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of authorized denominations of the same Class evidencing a like
aggregate Percentage Interest.
(g) At the option of any Holder, its Certificates may be
exchanged for other Certificates of authorized denominations of the same Class
evidencing a like aggregate Percentage Interest, upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute, and the Certificate Registrar shall
authenticate and deliver, the Certificates which the Certificateholder making
the exchange is entitled to receive.
(h) Every Certificate presented or surrendered for
transfer or exchange shall (if so required by the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
-197-
(i) No service charge shall be imposed for any transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
(j) All Certificates surrendered for transfer and
exchange shall be physically canceled by the Certificate Registrar, and the
Certificate Registrar shall dispose of such canceled Certificates in accordance
with its standard procedures.
(k) The Certificate Registrar shall provide to each of
the other parties hereto, upon reasonable written request and at the expense of
the requesting party, an updated copy of the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) The Principal Balance Certificates and the Interest
Only Certificates shall, in the case of each Class thereof, initially be issued
as one or more Certificates registered in the name of the Depository or its
nominee and, except as provided in Section 5.02(b) or Section 5.03(c), transfer
of such Certificates may not be registered by the Certificate Registrar unless
such transfer is to a successor Depository that agrees to hold such Certificates
for the respective Certificate Owners with Ownership Interests therein. Such
Certificate Owners shall hold and, subject to Section 5.02(c), transfer their
respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository; and, except as provided in Section
5.02(b) or Section 5.03(c) below, such Certificate Owners shall not be entitled
to fully registered, physical Certificates ("Definitive Certificates") in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or indirect participating brokerage firm representing each such Certificate
Owner. Each Depository Participant shall only transfer the Ownership Interests
in the Book-Entry Certificates of Certificate Owners it represents or of
indirect participating brokerage firms for which it acts as agent in accordance
with the Depository's normal procedures.
(b) Except as expressly provided to the contrary herein,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, any
Fiscal Agent and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. Except as expressly provided to the contrary herein, the rights of
Certificate Owners with respect to the Book-Entry Certificates shall be limited
to those established by law and agreements between such Certificate Owners and
the Depository Participants and indirect participating brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the
Certificate Registrar in writing that the Depository is no longer willing or
able to discharge properly its responsibilities as depository with respect to
any Class of Book-Entry Certificates, and (B) the Depositor is unable to locate
a
-198-
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 any Class of Book-Entry
Certificates (or any portion of such Class), the Certificate Registrar shall
notify all affected Certificate Owners, through the Depository, of the
occurrence of any such event and of the availability of Definitive Certificates
to such Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of any Class of Book-Entry Certificates (or any portion of
such Class) by the Depository, accompanied by registration instructions from the
Depository for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the Definitive
Certificates in respect of such Class (or portion thereof) to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar shall
be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates for purposes of evidencing ownership of any
Book-Entry Certificates, the registered holders of such Definitive Certificates
shall be recognized as Certificateholders hereunder and, accordingly, shall be
entitled directly to receive payments on, to exercise Voting Rights with respect
to, and to transfer and exchange such Definitive Certificates.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be reasonably required by them to save each of them harmless,
then, in the absence of actual notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute, and the Certificate Registrar shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the reasonable
fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any replacement Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the Trust Fund, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent, the Certificate Registrar and any agent of any of them may treat the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever, and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, any Fiscal Agent, the Certificate
Registrar or any agent of any of them shall be affected by notice to the
contrary.
SECTION 5.06. Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of
its acquisition of an Ownership Interest in the Book-Entry Certificates to agree
to comply with the transfer requirements of Section 5.02(c).
-199-
(b) To the extent that under the terms of this Agreement,
it is necessary to determine whether any Person is a Certificate Owner, the
Trustee shall make such determination based on a certificate of such Person,
which certificate shall be substantially in the form of paragraph 1 of Exhibit
K-1 hereto (or such other form as shall be reasonably acceptable to the Trustee)
and shall specify the Class and Certificate Principal Balance or Certificate
Notional Amount, as the case may be, of the Book-Entry Certificate beneficially
owned; provided, however, that neither the Trustee nor the Certificate Registrar
shall knowingly recognize such Person as a Certificate Owner if such Person, to
the actual knowledge of a Responsible Officer of the Trustee or the Certificate
Registrar, as the case may be, acquired its Ownership Interest in a Book-Entry
Certificate in violation of Section 5.02(c), or if such Person's certification
that it is a Certificate Owner is in direct conflict with information actually
known by a Responsible Officer of the Trustee or the Certificate Registrar, as
the case may be, with respect to the identity of a Certificate Owner. The
Trustee and the Certificate Registrar shall each exercise its reasonable
discretion in making any determination under this Section 5.06(b) and shall
afford any Person providing information with respect to its beneficial ownership
of any Book-Entry Certificate an opportunity to resolve any discrepancies
between the information provided and any other information available to the
Trustee or the Certificate Registrar, as the case may be.
-200-
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Master
Servicer and the 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.
SECTION 6.02. Merger, Consolidation or Conversion of the
Depositor, the Master Servicer or the Special
Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a corporation, bank, trust company, partnership,
limited liability company, association or other legal entity under the laws of
the jurisdiction wherein it was organized, and each shall obtain and preserve
its qualification to do business as a foreign entity in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The Depositor, the Master Servicer and the Special Servicer
each may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets 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 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 such succession will not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee by each Rating Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the
Master Servicer, and the Special Servicer.
None of the Depositor, the Master Servicer, the Special
Servicer or any director, manager, member, officer, employee or agent of any of
the foregoing shall be under any liability to the Trust, the Trustee or the
Certificateholders for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer, the Special
Servicer or any such other Person against any liability to the Trust, the
Trustee or the Certificateholders for the breach of a representation or warranty
made herein, or against any expense or liability specifically required to be
borne thereby without right of reimbursement pursuant to the terms hereof, or
against any liability which would otherwise be imposed by reason of misfeasance,
bad faith or negligence in the performance of obligations or duties hereunder,
or by reason of negligent disregard of such obligations and duties. The
Depositor, the Master Servicer, the Special
-201-
Servicer and any director, officer, manager, member, employee or agent of any of
the foregoing 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, officer, manager, member, employee or agent of any of the
foregoing shall be indemnified and held harmless by the Trust out of the
Collection Account, as provided in Section 3.05(a), against any loss, liability
or reasonable out-of-pocket cost or expense (including reasonable legal fees and
expenses) incurred in connection with any legal action or claim relating to this
Agreement, the Certificates or any asset of the Trust, other than any such loss,
liability, cost or expense: (i) specifically required to be borne thereby
pursuant to the terms hereof, including Section 10.01(f); (ii) that constitutes
(or, but for the failure of the subject expense to be customary, reasonable or
necessary, would constitute) a Servicing Advance that is otherwise reimbursable
pursuant to this Agreement; or (iii) which was incurred in connection with any
legal action or claim against such party resulting from (A) any breach of a
representation or warranty made herein by such party, (B) misfeasance, bad faith
or negligence in the performance of obligations or duties hereunder by such
party, or (C) negligent disregard of obligations or duties hereunder by such
party. None of the Depositor, the Master Servicer or the Special Servicer shall
be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its respective duties under this Agreement and,
except in the case of a legal action as to which the related costs are to be
borne by such party without right of reimbursement, in its opinion does not
involve it in any ultimate expense or liability for which reimbursement is not
reasonably assured hereunder; provided, however, that the Depositor, the Master
Servicer or the Special Servicer may in its discretion undertake any such action
which it may reasonably deem necessary or desirable with respect to the
enforcement and/or protection of the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action, and any liability resulting therefrom, shall
be expenses, costs and liabilities of the Trust, and the Depositor, the Master
Servicer and the Special Servicer each shall be entitled to the direct payment
of such expenses or to be reimbursed therefor from the Collection Account as
provided in Section 3.05(a).
In addition, neither the Master Servicer nor the Special
Servicer shall have any liability with respect to, and the Master Servicer and
Special Servicer shall each be entitled to rely as to the truth of the
statements made and the correctness of the opinions expressed therein on, any
certificates or opinions furnished to, and reasonably accepted in good faith by,
the Master Servicer or Special Servicer, as the case may be, and conforming to
the requirements of this Agreement. The Master Servicer and Special Servicer may
each rely in good faith on information provided to it by the other parties
hereto (unless the provider and the recipient of such information are the same
Person or Affiliates) and by the Borrowers, and will have no duty to investigate
or verify the accuracy thereof.
SECTION 6.04. Resignation of Master Servicer and Special
Servicer.
The Master Servicer and the Special Servicer each may resign
from the obligations and duties hereby imposed on it, upon a determination that
its duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it (the other activities of the Master Servicer or the Special Servicer,
as the case may be, so causing such a conflict being of a type and nature
carried on by the Master Servicer or the Special Servicer, as the case may be,
at the date of this Agreement). Any such determination requiring the resignation
of the Master Servicer or the Special Servicer, as applicable, shall be
evidenced by an Opinion of Counsel to such effect which shall be delivered to
the Trustee, with a copy to the Controlling
-202-
Class Representative. Unless applicable law requires the Master Servicer's or
the Special Servicer's (as the case may be) resignation to be effective
immediately, and the Opinion of Counsel delivered pursuant to the prior sentence
so states, no such resignation shall become effective until the Trustee or other
successor shall have assumed the responsibilities and obligations of the
resigning party in accordance with Section 6.06 or Section 7.02 hereof; provided
that, if no successor master servicer or special servicer, as applicable, shall
have been so appointed and have accepted appointment within 90 days after the
Master Servicer or the Special Servicer, as the case may be, has given notice of
such resignation, the resigning Master Servicer or Special Servicer, as
applicable, may petition any court of competent jurisdiction for the appointment
of a successor thereto; and provided, further, that the resigning Master
Servicer or Special Servicer, as the case may be, shall, at least 10 days prior
to resigning and assigning or transferring any of its rights, benefits or
privileges hereunder, inform the Controlling Class Representative in writing of
its intent to resign and disclose to the Controlling Class Representative the
name of such assignee or transferee and the date of the proposed resignation and
transfer of servicing and the Controlling Class Representative shall not have
reasonably objected to the proposed assignee or transferee within such 10-day
period.
In addition, the Master Servicer and the Special Servicer each
shall have the right to resign at any other time, provided that (i) a willing
successor thereto (including any such successor proposed by the resigning party)
reasonably acceptable to the Depositor, the Controlling Class Representative and
the Trustee has been found, (ii) each of the Rating Agencies confirms to the
Trustee in writing that the successor's appointment will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates, (iii) the
resigning party pays all costs and expenses in connection with such transfer,
and (iv) the successor accepts appointment prior to the effectiveness of such
resignation.
Neither the Master Servicer nor the Special Servicer shall be
permitted to resign except as contemplated above in this Section 6.04.
Consistent with the foregoing, neither the Master Servicer nor the Special
Servicer shall (except in connection with any resignation thereby permitted
pursuant to the prior paragraph or as otherwise expressly provided herein,
including the provisions of Section 3.22 and/or Section 6.02) assign or transfer
any of its rights, benefits or privileges hereunder to any other Person or
delegate to, subcontract with, or authorize or appoint any other Person to
perform any of the duties, covenants or obligations to be performed by it
hereunder. If, pursuant to any provision hereof, the duties of the Master
Servicer or Special Servicer are transferred to a successor thereto, the entire
amount of compensation payable to the Master Servicer or Special Servicer, as
the case may be, that accrues pursuant hereto from and after the date of such
transfer shall be payable to such successor, except to the extent provided in
Section 3.11(c).
SECTION 6.05. Rights of the Depositor and the Trustee in
Respect of the Master Servicer and the
Special Servicer.
Upon reasonable request, the Master Servicer and the Special
Servicer each shall furnish the Depositor and, upon request, the Trustee with
its most recent publicly available annual audited financial statements (or, if
not available, the most recent publicly available audited annual financial
statements of its corporate parent, on a consolidated basis) and such other
information as is publicly available regarding its business, affairs, property
and condition, financial or otherwise; provided that neither the Depositor nor
the Trustee may disclose the contents of such financial statements or other
information to non-affiliated third parties (other than accountants, attorneys,
financial advisors and other representatives retained to help it evaluate such
financial statements or other information), unless it is
-203-
required to do so under applicable securities laws or is otherwise compelled to
do so as a matter of law. The Master Servicer and the Special Servicer each may
affix to any such information described in this Section 6.05 provided by it any
disclaimer it deems appropriate in its reasonable discretion. The Depositor may,
but is not obligated to, enforce the respective 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 the Special Servicer hereunder or exercise the rights of the Master
Servicer or 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. 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. Designation of Special Servicer by Certain
Certificateholders.
(a) The Holder or Holders of Certificates representing
more than 50% of the Class Principal Balance of the Controlling Class may at any
time and from time to time designate a Person (other than the Trustee) to
replace any existing Special Servicer or any Special Servicer that has resigned
or otherwise ceased to serve as Special Servicer. Such Holder or Holders shall
so designate a Person to so serve as successor special servicer by the delivery
to the Trustee, the Master Servicer 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. The designated Person
shall become the Special Servicer on the date as of which the Trustee shall have
received: (i) written confirmation from each of the Rating Agencies that the
appointment of such Person as Special Servicer will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates; (ii) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the designated Person; and (iii) an Opinion of Counsel
(which shall not be an expense of the Trustee or the Trust) substantially to the
effect that (A) the designation of such Person to serve as Special Servicer is
in compliance with this Section 6.06, (B) the designated Person is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (C) the Acknowledgment of Proposed Special
Servicer has been duly authorized, executed and delivered by the designated
Person and (D) 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 bankruptcy and insolvency exceptions and
customary equity exceptions, that this Agreement shall be enforceable against
the designated Person in accordance with its terms. Any existing Special
Servicer shall be deemed to have been terminated simultaneously with such
designated Person's becoming the Special Servicer hereunder; provided that (i)
the terminated Special Servicer shall be entitled to receive, in connection with
its termination, payment out of the Collection Account of all of its accrued and
unpaid Special Servicing Fees to which it is entitled and reimbursement from the
successor special servicer of all outstanding Servicing Advances made by the
terminated Special Servicer and all unpaid Advance Interest accrued on such
outstanding Servicing Advances (in which case the successor special servicer
shall be deemed to have made such Servicing Advances at the same time that the
terminated Special Servicer had actually made them), (ii) the terminated Special
Servicer shall be entitled to any Workout Fees thereafter received on any
Serviced Mortgage Loans as to which it was the Special Servicer and that were
Corrected Serviced Mortgage Loans at the time of the termination (but only if
and to the extent permitted by Section 3.11(c)), and (iii) the terminated
Special Servicer shall continue to be entitled to the benefits of Section 6.03,
-204-
notwithstanding any such termination; and provided, further, that the terminated
Special Servicer shall continue to be obligated to pay and entitled to receive
all other amounts accrued or owing by or to it under this Agreement on or prior
to the effective date of such termination. Such terminated Special Servicer
shall cooperate with the Trustee and the replacement Special Servicer in
effecting the transfer of the terminated Special Servicer's responsibilities and
rights hereunder to its successor, including the transfer within two Business
Days to the replacement Special Servicer for administration by it of all cash
amounts that at the time are or should have been credited by the Special
Servicer to the REO Account or to any Servicing Account or Reserve Account or
should have been delivered to the Master Servicer or that are thereafter
received by or on behalf of it with respect to any Mortgage Loan or REO
Property. If the termination of the Special Servicer was without cause, the
reasonable out-of-pocket costs and expenses of any such transfer shall in no
event be paid out of the Trust Fund, and instead shall be paid by the successor
special servicer or the Holders of the Controlling Class that voted to remove
the Special Servicer, as such parties may agree.
(b) If the Controlling Class of Certificates are
Book-Entry Certificates, then the rights set forth in Section 6.06(a) with
respect to replacing the Special Servicer may be exercised by the related
Certificate Owners holding beneficial ownership of Certificates representing
more than 50% of the Class Principal Balance of the Controlling Class.
SECTION 6.07. Master Servicer or Special Servicer as Owner
of a Certificate.
The Master Servicer or an Affiliate of the Master Servicer or
the Special Servicer or an Affiliate of the Special Servicer may become the
Holder of (or, in the case of a Book-Entry Certificate, Certificate Owner with
respect to) any Certificate with (except as 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, as the case may be, 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, as the
case may be, proposes to take any action (including for this purpose, omitting
to take a particular action) that is not expressly prohibited by the terms
hereof and would not, in the reasonable judgment of the Master Servicer or the
Special Servicer, as the case may be, violate the Servicing Standard, but that,
if taken, might nonetheless, in the reasonable judgment of the Master Servicer
or the Special Servicer, as the case may be, be considered by other Persons to
violate the Servicing Standard, then the Master Servicer or the Special
Servicer, as the case may be, may (but need not) seek the approval of the
Certificateholders to such action by delivering to the Trustee a written notice
that (a) states that it is delivered pursuant to this Section 6.07, (b)
identifies the Percentage Interest in each Class of Certificates beneficially
owned by the Master Servicer or the Special Servicer, as the case may be, or by
an Affiliate thereof and (c) describes in reasonable detail the action that the
Master Servicer or the Special Servicer, as the case may be, proposes to take.
The Trustee, upon receipt of such notice, shall forward it to the
Certificateholders (other than the Master Servicer and its Affiliates or the
Special Servicer and its Affiliates, as appropriate), together with a request
for approval by the Certificateholders of each such proposed action. If at any
time Certificateholders holding greater than 50% of the Voting Rights of all
Certificateholders (calculated without regard to the Certificates beneficially
owned by the Master Servicer or its Affiliates or the Special Servicer or its
Affiliates, as the case may be) shall have consented in writing to the proposal
described in the written notice, and if the Master Servicer or the Special
Servicer, as the case may be, shall act as proposed in the written notice, such
action shall be deemed to comply with the Servicing Standard. The Trustee shall
be entitled to
-205-
reimbursement from the Master Servicer or the Special Servicer, as applicable,
for the reasonable expenses of the Trustee incurred pursuant to this paragraph.
It is not the intent of the foregoing provision that the Master Servicer or the
Special Servicer be permitted to invoke the procedure set forth herein with
respect to routine servicing matters arising hereunder, but rather in the case
of unusual circumstances.
-206-
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 the Collection Account any amount required to be so
deposited under this Agreement, which failure continues unremedied for
three Business Days following the date on which such deposit was first
required to be made; or
(ii) any failure by the Special Servicer to
deposit into the REO Account, or to deposit, or remit to the Master
Servicer for deposit, into the Collection Account, any amount required
to be so deposited or remitted under this Agreement, which failure
continues unremedied for three Business Days following the date on
which such deposit or remittance, as the case may be, was first
required to be made; or
(iii) any failure by the Master Servicer to remit
to the Trustee for deposit into the Distribution Account, on any Master
Servicer Remittance Date, the full amount of P&I Advances required to
be made, or the full amount of the Master Servicer Remittance Amount or
the Compensating Interest Payment required to be remitted, which
failure continues unremedied until 11:00 a.m. (New York City time) on
the relevant Distribution 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 shall have been given to the Master
Servicer by the Trustee as provided in Section 3.11(f); or
(v) any failure by the Special Servicer to
timely make (or request the Master Servicer to make) any Servicing
Advance required to be made by it hereunder, which Servicing Advance
remains unmade for a period of three Business Days following the date
on which notice has been given to the Special Servicer by the Trustee
as provided in Section 3.11(f); or
(vi) any failure on the part of the Master
Servicer or the Special Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part
of the Master Servicer or the Special Servicer, as the case may be,
contained in this Agreement, which failure continues unremedied for a
period of 30 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
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
Holders of Certificates entitled to at least 25% of the Voting Rights,
or by the Controlling Class Representative; provided, however, that
with respect to any such failure that 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
-207-
the initial 30-day period and has provided the Trustee with an
Officer's Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(vii) any breach on the part of the Master
Servicer or the Special Servicer of any representation or warranty
contained in this Agreement that materially and adversely affects the
interests of any Class of Certificateholders and which continues
unremedied for a period of 30 days after the date on which notice of
such breach, requiring the same to be remedied, shall have been given
to the Master Servicer or the Special Servicer, as the case may be, by
any other party hereto or to the Master Servicer or the Special
Servicer, as the case may be, with a copy to each other party hereto,
by the Holders of Certificates entitled to at least 25% of the Voting
Rights or by the Controlling Class Representative; provided, however,
that, with respect to any such breach that 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 breach within the initial
30-day period and has provided the Trustee with an Officer's
Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(viii) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law for the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against 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
(ix) 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, marshalling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or
substantially all of its property; or
(x) 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
(xi) [Xxxxx'x] has (A) qualified, downgraded or
withdrawn its rating or ratings of one or more Classes of Certificates,
or (B) placed one or more Classes of Certificates on "watch status" in
contemplation of possible rating downgrade or withdrawal (and such
"watch status" placement shall not have been withdrawn by [Xxxxx'x]
within 60 days of such placement, and, in the case of either clause (A)
or (B), cited servicing concerns with the Master Servicer or the
Special Servicer as the sole factor or a contributory factor in such
rating action (it being understood and agreed that servicing concerns
shall be deemed not to be a "contributory factor" if the Master
Servicer or Special Servicer establishes to a reasonable degree that
such rating action would have occurred without regard to such servicing
concerns); or
-208-
(xii) the Master Servicer is removed from [S&P]'s
approved master servicer list or the Special Servicer is removed from
[S&P]'s approved special servicer list, and the Master Servicer or
Special Servicer, as the case may be, is not restored to such list
within 60 days after its removal from such list (or within such longer
period (not to exceed an additional 30 days) so long as [S&P] has not
qualified, downgraded or withdrawn (or threatened in writing to
qualify, downgrade or withdraw) any of its ratings of the respective
Classes of Rated Certificates because of such removal).
When a single entity acts as Master Servicer and Special
Servicer, an Event of Default (other than an event described in clauses (xi) and
(xii) above) in one capacity shall constitute an Event of Default in the other
such capacity.
(b) If any Event of Default with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") shall occur and be continuing, then, and in
each and every such case, so long as the Event of Default shall not have been
remedied, the Depositor and Trustee each may, and at the written direction of
either the Controlling Class Representative or the Holders of Certificates
entitled to not less than 25% of the Voting Rights, the Trustee shall (subject
to applicable bankruptcy or insolvency law in the case of clauses (viii) through
(x) of Section 7.01(a)), terminate, by notice in writing to the Defaulting Party
(with a copy of such notice to each other party hereto), all of the rights and
obligations (accruing from and after such notice) of the Defaulting Party under
this Agreement and in and to the Trust Fund (other than as a Holder of any
Certificate). From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer and
the Special Servicer each agrees that, if it is terminated pursuant to this
Section 7.01(b), it shall promptly (and in any event no later than ten Business
Days subsequent to its receipt of the notice of termination) provide the Trustee
or its designee with all documents and records requested thereby to enable the
Trustee to assume the Master Servicer's or the Special Servicer's, as the case
may be, functions hereunder, and shall otherwise cooperate with the Trustee in
effecting the termination of the Master Servicer's or the Special Servicer's, as
the case may be, responsibilities and rights hereunder, including the transfer
within two Business Days to the Trustee or its designee for administration by it
of all cash amounts that at the time are or should have been credited by the
Master Servicer to the Collection Account, the Distribution Account or any
Servicing Account or Reserve Account held by it (if it is the Defaulting Party)
or by the Special Servicer to the REO Account, the Collection Account or any
Servicing Account or Reserve Account held by it (if it is the Defaulting Party)
or that are thereafter received by or on behalf of it with respect to any
Mortgage Loan or REO Property (provided, however, that the Master Servicer and
the Special Servicer each shall, if terminated pursuant to this Section 7.01(b),
continue to be obligated to pay and entitled to receive all amounts accrued or
owing by or to it (including any which will be payable after termination) under
this Agreement on or prior to the date of such termination, whether in respect
of Advances or otherwise, and it and its members, managers, directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination). Any costs or expenses (including
-209-
those of any other party hereto) incurred in connection with any actions to be
taken by a terminated Master Servicer or Special Servicer pursuant to this
paragraph shall be borne by the Master Servicer or the Special Servicer, as the
case may be (and, in the case of the Trustee's costs and expenses, if not paid
within a reasonable time, shall be borne by the Trust out of the Collection
Account.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special
Servicer resigns pursuant to the first paragraph of Section 6.04 or receives a
notice of termination pursuant to Section 7.01, the Trustee shall, subject to
Section 6.06, 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 be
subject to all the responsibilities, duties and liabilities relating thereto and
arising thereafter placed on the Master Servicer or the Special Servicer, as the
case may be, by the terms and provisions hereof, including, if the Master
Servicer is the resigning or terminated party, the Master Servicer's obligation
to make P&I Advances; provided, however, 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 cooperate or to provide information or monies as
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation (exclusive, if applicable,
of the Excess Servicing Fees) which the resigning or terminated party would have
been entitled to for future services rendered if the resigning or terminated
party had continued to act hereunder. Notwithstanding the above, if it is
unwilling to so act, the Trustee may (and, if it is unable to so act, or if the
Trustee is not approved as an acceptable master servicer or special servicer, as
the case may be, by each Rating Agency, or if the Holders of Certificates
entitled to a majority of all the Voting Rights or the Controlling Class
Representative so request in writing, the Trustee shall), subject to Section
6.06 (if applicable), promptly appoint, or petition a court of competent
jurisdiction to appoint, any established and qualified institution with a net
worth of at least $10 million as the successor to the resigning or terminated
Master Servicer or Special Servicer, as the case may be, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer or the Special Servicer, as the case may be, hereunder;
provided, however, that such appointment does not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee by each Rating Agency); and, provided, further, that such
successor is reasonably acceptable to the Controlling Class Representative. No
appointment of a successor to the Master Servicer or the Special Servicer
hereunder shall be effective until the assumption by such successor of all its
responsibilities, duties and liabilities hereunder, and pending such appointment
and assumption, the Trustee shall act in such capacity as hereinabove provided.
In connection with any such appointment and assumption, the Trustee may make
such arrangements for the compensation of such successor out of payments on the
Mortgage Loans or otherwise as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
resigning or terminated party hereunder. The Depositor, the Trustee, such
successor and each other party hereto shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
If the Trustee or an Affiliate acts pursuant to this Section
7.02 as successor to the Master Servicer, it may reduce the Excess Servicing Fee
Rate to the extent that its or such Affiliate's
-210-
compensation as successor Master Servicer would otherwise be below the market
rate servicing compensation. If the Trustee elects to appoint a successor to the
Master Servicer other than itself or an Affiliate pursuant to this Section 7.02,
it may reduce the Excess Servicing Fee Rate to the extent reasonably necessary
(in the sole discretion of the Trustee) for the Trustee to appoint a qualified
successor Master Servicer that meets the requirements of this Section 7.02.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of 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
6.02, 6.04 or 7.02 or the effectiveness of any designation of a new Special
Servicer pursuant to Section 6.06, the Trustee shall give prompt written notice
thereof to Certificateholders at their respective addresses appearing in the
Certificate Register.
(b) Not later than the later of (i) 60 days after the
occurrence of any event which constitutes or, with notice or lapse of time or
both, would constitute an Event of Default and (ii) five days after a
Responsible Officer of the Trustee has actual knowledge of the occurrence of
such an event, the Trustee shall transmit by mail to the Depositor and the
Certificateholders notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of
the Voting Rights allocated to each Class of Certificates affected by any Event
of Default hereunder may waive such Event of Default; provided that an Event of
Default under clause (i), clause (ii), clause (iii), clause (xi) or clause (xii)
of Section 7.01(a) may be waived only by all of the Certificateholders; and
provided, further, that if the Trustee was required to expend any monies in
connection with any Event of Default, then such Event of Default may not be
waived unless and until those monies have been reimbursed to the Trustee, with
interest, by the Defaulting Party. 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 the same Voting Rights with
respect to the matters described above as they would if registered in the name
of any other Person.
SECTION 7.05. Additional Remedies of Trustee Upon Event of
Default.
During the continuance of any Event of Default, so long as
such Event of Default shall not have been remedied, the Trustee, in addition to
the rights specified in Section 7.01, shall have the right (exercisable subject
to Section 8.01(a)), in its own name and as trustee of an express trust, to take
all actions now or hereafter existing at law, in equity or by statute to enforce
its rights and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every
-211-
remedy shall be cumulative and in addition to any other remedy, and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Event of Default.
SECTION 7.06. Replacement of [Separately Serviced Mortgage
Loan] Special Servicer.
The Trustee may (and, at the direction of the Controlling
Class Representative or of Certificateholders representing at least 25% of the
Voting Rights, shall) consent to the termination and replacement of, or exercise
such rights as may be granted to it under the [Separately Serviced Mortgage
Loan] Intercreditor Agreements and/or any [Separately Serviced Mortgage Loan]
Servicing Agreement to terminate and replace, the [Separately Serviced Mortgage
Loan] Special Servicer; provided that the Trustee shall first obtain written
confirmation from each Rating Agency that its granting such consent or
exercising such rights shall not result in an Adverse Rating Event with respect
to any Class of Rated Certificates. The Trustee and the Master Servicer shall
each notify the other such party, the Certificateholders, the Controlling Class
Representative and the Rating Agencies of any [Other CMBS Series] Event of
Default known to a Responsible Officer of the Trustee or a Servicing Officer of
the Master Servicer, as the case may be, in the same manner as it would notify
such parties of an Event of Default hereunder.
-212-
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of the 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 person would exercise or use under the circumstances in
the conduct of his own affairs. Any permissive right of the Trustee contained in
this Agreement shall not be construed as a duty. The Trustee shall be liable in
accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Trustee.
(b) Upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee, which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), the Trustee shall examine
them to determine whether they conform to the requirements of this Agreement. If
any such instrument is found not to conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible or liable for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer, the Special Servicer, any
actual or prospective Certificateholder or Certificate Owner or either Rating
Agency, and reasonably accepted by the Trustee in good faith, pursuant to this
Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of
Default, and after the curing or waiver of all Events of Default which
may have occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement
against the Trustee.
(ii) 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.
(iii) The Trustee shall not be liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of such entity unless it shall be proved that such entity was
negligent in ascertaining the pertinent facts.
-213-
(iv) The Trustee shall not be liable with respect
to any action taken, suffered or omitted to be taken by the Trustee, in
good faith in accordance with the direction of Holders of Certificates
entitled to at least 51% (or, as to any particular matter, any higher
percentage as may be specifically provided for hereunder) of the Voting
Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement.
(v) The Trustee shall not be required to take
action with respect to, or be deemed to have notice or knowledge of,
any default or Event of Default or the Master Servicer's failure to
deliver any monies, including P&I Advances, or to provide any report,
certificate or statement, to the Trustee when required pursuant to this
Agreement, unless a Responsible Officer of the Trustee shall have
received written notice or otherwise have actual knowledge thereof.
Otherwise, the Trustee may conclusively assume that there is no such
default or Event of Default.
(vi) Subject to the other provisions of this
Agreement, and without limiting the generality of this Section 8.01,
the Trustee shall not have any duty, except as expressly provided in
Section 2.01(c) or Section 2.01(e) or in its capacity as successor
Master Servicer or successor Special Servicer, (A) to cause any
recording, filing, or depositing of this Agreement or any agreement
referred to herein or any financing statement or continuation statement
evidencing a security interest, or to cause the maintenance of any such
recording or filing or depositing or to any re-recording, refiling or
redepositing of any thereof, (B) to cause the maintenance of any
insurance, (C) to confirm or verify the truth, accuracy or contents of
any reports or certificates of the Master Servicer, the Special
Servicer, any actual or prospective or any Certificateholder or
Certificate Owner or either Rating Agency, delivered to the Trustee
pursuant to this Agreement and reasonably believed by the Trustee to be
genuine and without error and to have been signed or presented by the
proper party or parties, (D) subject to Section 10.01(f), to see to the
payment or discharge of any tax levied against any part of the Trust
Fund other than from funds available in the Collection Account or the
Distribution Account, and (E) to see to the payment of any assessment
or other governmental charge or any lien or encumbrance of any kind
owing with respect to, or assessed or levied against, any part of the
Trust Fund other than from funds available in the Collection Account or
Distribution Account (provided that such assessment, charge, lien or
encumbrance did not arise out of the Trustee's willful misfeasance, bad
faith or negligence).
(vii) For as long as the Trustee hereunder also
serves as Custodian and/or Certificate Registrar, the protections,
immunities and indemnities afforded to that Person in its capacity as
Trustee hereunder shall also be afforded to such Person in its capacity
as Custodian and/or Certificate Registrar, as the case may be.
-214-
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document reasonably
believed by it to be genuine and without error and to have been signed
or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any
written advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this Agreement or
to make any investigation of matters arising hereunder or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, unless
(in the Trustee's reasonable opinion) such Certificateholders shall
have provided to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or
thereby; the Trustee shall not be required to expend or risk its own
funds (except to pay expenses that could reasonably be expected to be
incurred in connection with the performance of its normal duties) or
otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; provided, however, that
nothing contained herein shall relieve the Trustee of the obligation,
upon the occurrence of an Event of Default which has not been waived or
cured, to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs;
(iv) neither the Trustee nor any Fiscal Agent
appointed thereby shall be personally liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) prior to the occurrence of an Event of
Default and after the waiver or curing of all Events of Default which
may have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require an indemnity satisfactory to the
Trustee, in its reasonable discretion, against such expense or
liability as a condition to taking any such action;
-215-
(vi) except as contemplated by Sections 8.06 and
8.14, the Trustee shall not be required to give any bond or surety in
respect of the execution of the trusts created hereby or the powers
granted hereunder;
(vii) the Trustee may execute any of the trusts or
powers vested in it by this Agreement and perform any of its duties
hereunder, either directly or by or through agents or
attorneys-in-fact, provided that the use of agents or attorneys-in-fact
shall not be deemed to relieve the Trustee of any of its duties and
obligations hereunder (except as expressly set forth herein);
(viii) neither the Trustee nor any Fiscal Agent
appointed thereby shall be responsible for any act or omission of the
Master Servicer or the Special Servicer (unless, in the case of the
Trustee, it is acting as Master Servicer or Special Servicer, as the
case may be) or of the Depositor; and
(ix) neither the Trustee nor the Certificate
Registrar shall have any obligation or duty to monitor, determine or
inquire as to compliance with any restriction on transfer imposed under
Article V under this Agreement or under applicable law with respect to
any transfer of any Certificate or any interest therein, other than to
require delivery of the certification(s) and/or Opinions of Counsel
described in said Article applicable with respect to changes in
registration or record ownership of Certificates in the Certificate
Register and to examine the same to determine substantial compliance
with the express requirements of this Agreement; and the Trustee and
the Certificate Registrar shall have no liability for transfers,
including transfers made through the book-entry facilities of the
Depository or between or among Depository Participants or beneficial
owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in
connection with changes in registration or record ownership in the
Certificate Register.
SECTION 8.03. Trustee and Fiscal Agent Not Liable for
Validity or Sufficiency of Certificates or
Mortgage Loans.
The recitals contained herein and in the Certificates (other
than the statements attributed to, and the representations and warranties of,
the Trustee and/or any Fiscal Agent in Article II and/or any Fiscal Agent
Agreement, and the signature of the Certificate Registrar set forth on each
outstanding Certificate) shall not be taken as the statements of the Trustee or
any Fiscal Agent, and neither the Trustee nor any Fiscal Agent assumes any
responsibility for their correctness. Neither the Trustee nor any Fiscal Agent
makes any representation as to the validity or sufficiency of this Agreement
(except as regards the enforceability of this Agreement against it) or of any
Certificate (other than as to the signature of the Trustee or the Certificate
Registrar set forth thereon) or of any Mortgage Loan or related document.
Neither the Trustee nor any Fiscal Agent shall be accountable for the use or
application by the Depositor of any of the Certificates issued to it or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor in respect of the assignment of the Mortgage Loans to the
Trust, or any funds deposited in or withdrawn from the Collection Account or any
other account by or on behalf of the Depositor, the Master Servicer or the
Special Servicer (unless, in the case of the Trustee, it is acting in such
capacity). Neither the Trustee nor any Fiscal Agent shall be responsible for the
legality or validity of this Agreement (other than insofar as it relates to the
obligations of the Trustee or such Fiscal Agent, as the case may be, hereunder)
or the validity, priority, perfection or sufficiency of
-216-
any security, lien or security interest granted to it hereunder or the filing of
any financing statements or continuation statements, except to the extent set
forth in Section 2.01(c) and Section 2.01(e) or to the extent the Trustee is
acting as Master Servicer or Special Servicer and the Master Servicer or the
Special Servicer, as the case may be, would be so responsible hereunder. Neither
the Trustee nor any Fiscal Agent shall be required to record this Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own
Certificates.
The Trustee (in its individual or any other capacity), any
Fiscal Agent or any of their respective Affiliates may become the owner or
pledgee of Certificates with (except as otherwise provided in the definition of
"Certificateholder") the same rights it would have if it were not the Trustee,
such Fiscal Agent or one of their Affiliates, as the case may be.
SECTION 8.05. Fees and Expenses of the Trustee and any
Fiscal Agent; Indemnification of and by the
Trustee and any Fiscal Agent.
(a) On each Distribution Date, the Trustee shall withdraw
from the Distribution Account, out of general collections on the Mortgage Loans
and REO Properties on deposit therein, prior to any distributions to be made
therefrom to Certificateholders on such date, and pay to itself all Trustee's
Fees earned in respect of the Mortgage Pool for such Distribution Date and, to
the extent not previously paid, for any prior Distribution Date, as compensation
for all services rendered by it hereunder. As to each Mortgage Loan and REO Loan
in the Mortgage Pool, for any Distribution Date, the Trustee's Fee shall accrue
during the related Interest Accrual Period for the Certificates, at the
Trustee's Fee Rate on a principal amount equal to the Stated Principal Balance
of such Mortgage Loan or REO Loan, as the case may be, immediately prior to such
Distribution Date. With respect to each Mortgage Loan and REO Loan in the
Mortgage Pool, the Trustee's Fee shall be calculated on the same Interest
Accrual Basis as is applicable to the accrual or deemed accrual of interest on
such Mortgage Loan or REO Loan, as the case may be. The Trustee's Fees (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) shall constitute the sole compensation of the
Trustee for such services to be rendered by it. The Trustee shall be responsible
for the fees of any Fiscal Agent, Custodian and Certificate Registrar.
(b) The Trustee, any Fiscal Agent and any of their
respective directors, officers, employees or agents are entitled to be
indemnified and held harmless out of the Collection Account and/or the
Distribution Account, as and to the extent provided in Section 3.05, for and
against any loss, liability, claim or expense (including costs and expenses of
litigation, and of investigation, counsel fees, damages, judgments and amounts
paid in settlement) arising out of, or incurred in connection with, this
Agreement, the Certificates, the Mortgage Loans (unless, in the case of the
Trustee, it incurs any such expense or liability in the capacity of successor
Master Servicer or Special Servicer, in which case such expense or liability
will be reimbursable thereto in the same manner as it would be for any other
Master Servicer or Special Servicer, as the case may be) or any act or omission
of the Trustee or such Fiscal Agent, as the case may be, relating to the
exercise and performance of any of its rights and duties in such capacity
hereunder; provided, however, that neither the Trustee nor any Fiscal Agent
shall be entitled to indemnification pursuant to this Section 8.05(b) for (1)
allocable overhead, such as costs for office space, office equipment, supplies
and related expenses, employee salaries and related expenses and similar
internal costs and expenses, (2) any cost or expense that does not constitute an
"unanticipated expense" within the meaning of Treasury regulation section
1.860G-1(b)(3)(ii), (3) any expense or
-217-
liability specifically required to be borne thereby pursuant to the terms hereof
or (4) any loss, liability, claim or expense incurred by reason of any breach on
the part of the Trustee or such Fiscal Agent, as the case may be, of any of
their respective representations, warranties or covenants contained herein or
any willful misfeasance, bad faith or negligence in the performance of, or
negligent disregard of, the Trustee's or such Fiscal Agent's, as the case may
be, obligations and duties hereunder.
(c) The Master Servicer and the Special Servicer each
shall indemnify the Trustee and any Fiscal Agent for and hold each of them
harmless against any loss, liability, claim or expense that is a result of the
Master Servicer's or the Special Servicer's, as the case may be, negligence in
the performance of, or negligent disregard of, its obligations and duties under
this Agreement (including the negligent use by the Master Servicer or the
Special Servicer, as the case may be, of any powers of attorney delivered to it
by the Trustee pursuant to the provisions hereof) and the Mortgage Loans
serviced by the Master Servicer or the Special Servicer, as the case may be;
provided, however, that, if the Trustee or any Fiscal Agent has been reimbursed
for such loss, liability, claim or expense pursuant to Section 8.05(b) or any
Fiscal Agent has been reimbursed for such loss, liability, claim or expense
pursuant to Section 8.13, then the indemnity in favor of such Person provided
for in this Section 8.05(c) with respect to such loss, liability, claim or
expense shall be for the benefit of the Trust.
(d) Each of the Trustee and any Fiscal Agent shall
indemnify the Master Servicer and the Special Servicer for and hold each of them
harmless against any loss, liability, claim or expense that is a result of the
Trustee's or such Fiscal Agent's, as the case may be, negligence in the
performance of, or negligent disregard of, its obligations and duties under this
Agreement; provided, however, that if the Master Servicer or the Special
Servicer has been reimbursed for such loss, liability, claim or expense pursuant
to Section 6.03, then the indemnity in favor of such Person provided for in this
Section 8.05(d) with respect to such loss, liability, claim or expense shall be
for the benefit of the Trust.
(e) This Section 8.05 shall survive the termination of
this Agreement or the resignation or removal of the Trustee, any Fiscal Agent,
the Master Servicer or the Special Servicer as regards rights and obligations
prior to such termination, resignation or removal.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee shall at all times be a corporation, bank, trust
company or association that: (i) is organized and doing business under the laws
of the United States of America or any State thereof or the District of
Columbia; (ii) is authorized under such laws to exercise trust powers; (iii) has
a combined capital and surplus of at least $50,000,000; and (iv) is subject to
supervision or examination by federal or state authority. If such corporation,
bank, trust company or association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such corporation, bank, trust company or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In addition: (i) the Trustee shall at all
times meet the requirements of Section 26(a)(1) of the Investment Company Act;
and (ii) the Trustee shall not have any affiliations or, except as contemplated
by Section 7.02, act in any other capacity with respect to the transactions
contemplated hereby that would cause the Underwriter Exemption to be unavailable
with respect to any Class of Certificates as to which it would otherwise be
available. Furthermore, the Trustee shall at all times maintain a long-term
unsecured debt rating of no less than "___" from [Rating Agency No. 1] and "___"
from [Rating Agency No. 2] (or, in the case of either
-218-
Rating Agency, such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee and the Depositor by such Rating Agency)); provided that the Trustee
shall not cease to be eligible to serve as such based on a failure to satisfy
such rating requirements so long as either: (i) the Trustee maintains a
long-term unsecured debt rating of no less than "___" from [Rating Agency No. 1]
and "___" from [Rating Agency No. 2] (or, in the case of either Rating Agency,
such lower rating as will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates (as confirmed in writing to the Trustee and the
Depositor by such Rating Agency)) and a Fiscal Agent meeting the requirements of
Section 8.13 has been appointed by the Trustee and is then currently serving in
such capacity; or (ii) the Trustee maintains a long-term unsecured debt rating
of no less than "___" from [Rating Agency No. 1] and "___" from [Rating Agency
No. 2] (or, in the case of either Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee and the Depositor by such
Rating Agency)) and an Advance Security Arrangement meeting the requirements of
Section 8.14 has been established by the Trustee and is then currently being
maintained. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
corporation, bank, trust company or association serving as Trustee may have
normal banking and trust relationships with the Depositor, each Mortgage Loan
Seller, the Master Servicer, the Special Servicer and their respective
Affiliates; provided, however, that none of (i) the Depositor, (ii) any Person
involved in the organization or operation of the Depositor or the Trust, (iii)
any Mortgage Loan Seller or (iv) any Affiliate of any of them, may be the
Trustee hereunder.
SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged
from the trusts hereby created by giving written notice thereof to the
Depositor, the Controlling Class Representative, the Master Servicer, the
Special Servicer and all the Certificateholders. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee reasonably
acceptable to the Controlling Class Representative meeting the eligibility
requirements of Section 8.06, by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to other parties hereto
and to the Certificateholders by the Depositor. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible
in accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee's continuing to act in such capacity would (as
confirmed in writing to any party hereto by either Rating Agency) result in an
Adverse Rating Event with respect to any Class of Rated Certificates, then the
Depositor may (and, if it fails to do so within ten Business Days, the Master
Servicer shall as soon as practicable) remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee. A copy of such
instrument shall be delivered to the other parties hereto and to the
Certificateholders by the Depositor (or the Master Servicer, as the case may
be).
-219-
(c) The Holders of Certificates entitled to not less than
51% of the Voting Rights may at any time remove the Trustee and appoint a
successor trustee by written instrument or instruments, in triplicate, signed by
such Holders or their attorneys-in-fact duly authorized, one complete set of
which instruments shall be delivered to the Depositor (with copies to the Master
Servicer and the Special Servicer), one complete set to the Trustee so removed
and one complete set to the successor so appointed. All expenses incurred by the
Trustee in connection with its transfer of the Mortgages Files to a successor
trustee following the removal of the Trustee without cause pursuant to this
Section 8.07(c), shall be reimbursed to the removed Trustee within 30 days of
demand therefor, such reimbursement to be made by the Certificateholders that
terminated the Trustee. A copy of such instrument shall be delivered to the
other parties hereto and to the remaining Certificateholders by the successor so
appointed.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the provisions of this
Section 8.07 shall not become effective until (i) acceptance of appointment by
the successor trustee as provided in Section 8.08 and (ii) if neither the
successor trustee nor any Fiscal Agent appointed by it has a long-term unsecured
debt rating of at least "___" from [Rating Agency No. 1] and "___" from [Rating
Agency No. 2], the Trustee and the Depositor have received written confirmation
from each Rating Agency that has not so assigned such a rating, to the effect
that the appointment of such successor trustee shall not result in an Adverse
Rating Event with respect to any Class of Rated Certificates.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the Master
Servicer, the Special Servicer and its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee herein. If the Trustee is
being replaced, the predecessor trustee shall deliver to the successor trustee
all Mortgage Files and related documents and statements held by it hereunder
(other than any Mortgage Files at the time held on its behalf by a Custodian,
which Custodian shall become the agent of the successor trustee), and the
Depositor, the Master 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 and the
Certificateholders.
-220-
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted
or with which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the corporate trust business of the Trustee shall be the successor
of the Trustee hereunder, provided such entity shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate
Trustee.
(a) Notwithstanding any other provisions hereof, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust Fund or property securing the same may at the time
be located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity, such
title to the Trust Fund, or any part thereof, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights and
trusts as the Master Servicer and the Trustee may consider necessary or
desirable. If the Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request to do so, or in case an
Event of Default in respect of the Master Servicer shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06, and no notice to Holders
of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall
be required under Section 8.08.
(b) In the case of any appointment of a co-trustee or
separate trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or when acting as Master Servicer or 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
-221-
lawful act under or in respect of this Agreement on its behalf and in its name.
If any separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee
under this Section 8.10 shall not relieve the Trustee of its duties and
responsibilities hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, upon prior written notice to the Master
Servicer, the Special Servicer and the Controlling Class Representative, appoint
at the Trustee's own expense one or more Custodians to hold all or a portion of
the Mortgage Files as agent for the Trustee; provided that each Custodian shall
be a depositary institution supervised and regulated by a federal or state
banking authority, shall have combined capital and surplus of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage File, shall not be the Depositor, any Mortgage Loan Seller or
any Affiliate of the Depositor or any Mortgage Loan Seller, and shall have in
place a fidelity bond and errors and omissions policy, each in such form and
amount as is customarily required of custodians acting on behalf of Xxxxxxx Mac
or Xxxxxx Mae. Each Custodian shall be subject to the same obligations, standard
of care, protection and indemnities as would be imposed on, or would protect,
the Trustee hereunder in connection with the retention of Mortgage Files
directly by the Trustee. The appointment of one or more Custodians shall not
relieve the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible for all acts and omissions of any Custodian.
SECTION 8.12. Access to Certain Information.
(a) The Trustee shall afford to the Depositor, the
Underwriters, the Master Servicer, the Special Servicer, the Controlling Class
Representative and each Rating Agency and to the OTS, the FDIC and any other
banking or insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, access to any documentation regarding
the Mortgage Loans or the other assets of the Trust Fund that are in its
possession or within its control. Such access shall be afforded without charge
but only upon reasonable prior written request and during normal business hours
at the offices of the Trustee designated by it.
(b) The Trustee shall maintain at its offices and, upon
reasonable prior written request and during normal business hours, shall make
available, or cause to be made available, for review by the Rating Agencies, the
other parties hereto, the Controlling Class Representative 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 (to the extent
such items were prepared by or delivered to the Trustee): (i) the Prospectus,
the 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 Mortgage Loan
Purchase Agreement, and any amendments and exhibits hereto or thereto; (iii) all
Statements to Certificateholders and any files and reports comprising the CMSA
Investor Reporting Package actually delivered or otherwise made available by the
Trustee 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 the
Master
-222-
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 neither of the conditions set
forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (vii)
each of the Mortgage Files, including any and all modifications, waivers and
amendments of the terms of a Mortgage Loan entered into or consented to by the
Special Servicer and delivered to the Trustee or any Custodian on its behalf
pursuant to Section 3.20, and a current report from the Trustee listing all
outstanding exceptions to the Mortgage File review conducted pursuant to Section
2.02; (viii) 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 any Fiscal Agent's, as the case may be, determination that any Advance was
(or, if made, would be) a Nonrecoverable Advance; and (ix) any other information
that may be necessary to satisfy the requirements of subsection (d)(4)(i) of
Rule 144A under the Securities Act. The Trustee shall provide, or cause to be
provided, copies of any and all of the foregoing items upon request of any of
the parties set forth in the previous sentence; however, except in the case of
the Rating Agencies and the Controlling Class Representative, the Trustee shall
be permitted to require payment of a sum sufficient to cover the reasonable
costs and expenses of providing such copies.
In connection with providing, or causing to be provided,
access to or copies of the items described in the preceding paragraph pursuant
to this Section 8.12(b), the Trustee shall require: (a) in the case of
Certificateholders and Certificate Owners, a written confirmation executed by
the requesting Person substantially in the form of Exhibit K-1 hereto (or such
other form as may be reasonably acceptable to the Trustee) generally to the
effect that such Person is a Holder or Certificate Owner of Certificates and,
subject to the last sentence of this paragraph, will keep such information
confidential (except that such Certificateholder or Certificate Owner may
provide such information to its auditors, legal counsel and regulators and to
any other Person that holds or is contemplating the purchase of any Certificate
or interest therein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential); and (b) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation executed by the requesting
Person substantially in the form of Exhibit K-2 hereto (or such other form as
may be reasonably acceptable to the Trustee) generally to the effect that such
Person is a prospective purchaser of a Certificate or an interest therein, is
requesting the information for use in evaluating a possible investment in
Certificates and, subject to the last sentence of this paragraph, will otherwise
keep such information confidential. Notwithstanding the foregoing, no
Certificateholder, Certificate Owner or prospective Certificateholder or
Certificate Owner need keep confidential any information received from the
Trustee pursuant to this Section 8.12(b) that has previously been filed with the
Commission, and the Trustee shall not require either of the certifications
contemplated by the preceding sentence in connection with providing any
information pursuant to this Section 8.12(b) that has previously been filed with
the Commission.
(c) The Trustee shall not be liable for providing or
disseminating information in accordance with the terms of this Agreement.
SECTION 8.13. Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy
the rating requirements of Section 8.06, the Trustee may appoint, at the
Trustee's own expense, a Fiscal Agent for purposes of making Advances hereunder
that are otherwise required to be made by the Trustee. Any Fiscal Agent
-223-
shall at all times maintain a long-term unsecured debt rating of no less than
"___" from [Rating Agency No. 1] and "___" from [Rating Agency No. 2] (or, in
the case of either Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee and the Depositor by such Rating Agency)).
Any Person so appointed by the Trustee pursuant to this Section 8.13(a) shall
become the Fiscal Agent on the date as of which the Trustee and the Depositor
have received: (i) if the long-term unsecured debt of the designated Person is
not rated at least "___" by [Rating Agency No. 1] and "___" by [Rating Agency
No. 2], written confirmation from each Rating Agency that the appointment of
such designated Person will not result in an Adverse Rating Event with respect
to any Class of Rated Certificates; (ii) a written agreement whereby the
designated Person is appointed as, and agrees to assume and perform the duties
of, Fiscal Agent hereunder, executed by such designated Person and the Trustee
(such agreement, the "Fiscal Agent Agreement"); and (iii) an Opinion of Counsel
(which shall be paid for by the designated Person or the Trustee) substantially
to the effect that (A) the appointment of the designated Person to serve as
Fiscal Agent is in compliance with this Section 8.13, (B) the designated Person
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (C) the related Fiscal Agent Agreement has
been duly authorized, executed and delivered by the designated Person and (D)
upon execution and delivery of the related Fiscal Agent Agreement, the
designated Person shall be bound by the terms of this Agreement and, subject to
customary bankruptcy and insolvency exceptions and customary equity exceptions,
that this Agreement shall be enforceable against the designated Person in
accordance with its terms. Any Person that acts as Fiscal Agent shall, for so
long as it so acts, be deemed a party to this Agreement for all purposes hereof.
Pursuant to the related Fiscal Agent Agreement, each Fiscal Agent, if any, shall
make representations and warranties with respect to itself that are comparable
to those made by the Trustee pursuant to Section 2.07. Notwithstanding anything
contained in this Agreement to the contrary, any Fiscal Agent shall be entitled
to all limitations on liability, rights of reimbursement and indemnities to
which the Trustee is entitled hereunder (including pursuant to Sections 8.05(b)
and 8.05(c)) as if it were the Trustee.
(b) To the extent that the Trustee is required, pursuant
to the terms of this Agreement, to make any Advance, whether as successor Master
Servicer or otherwise, and has failed to do so in accordance with the terms
hereof, the Fiscal Agent (if any) shall make such Advance when and as required
by the terms of this Agreement on behalf the Trustee as if such Fiscal Agent
were the Trustee hereunder. To the extent that the Fiscal Agent (if any) makes
an Advance pursuant to this Section 8.13 or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement
to the contrary, any Fiscal Agent shall be entitled to all limitations on
liability, rights of reimbursement and indemnities to which the Trustee is
entitled hereunder (including pursuant to Sections 8.05(b) and 8.05(c)) as if it
were the Trustee, except that all fees and expenses of any Fiscal Agent (other
than interest owed to such Fiscal Agent in respect of unreimbursed Advances)
incurred by such Fiscal Agent in connection with the transactions contemplated
by this Agreement shall be borne by the Trustee, and neither the Trustee nor
such Fiscal Agent shall be entitled to reimbursement therefor from any of the
Trust, the Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of any Fiscal Agent set forth in this
Section 8.13 or otherwise pursuant to this Agreement shall exist only for so
long as the Trustee that appointed it shall act as Trustee hereunder. Any Fiscal
Agent may resign or be removed by the Trustee only if and when the
-224-
existence of such Fiscal Agent is no longer necessary for such Trustee to
satisfy the eligibility requirements of Section 8.06; provided that any Fiscal
Agent shall be deemed to have resigned at such time as the Trustee that
appointed it resigns or is removed as Trustee hereunder (in which case the
responsibility for appointing a successor fiscal agent in accordance with this
Section 8.13(a) shall belong to the successor trustee insofar as such
appointment is necessary for such successor trustee to satisfy the eligibility
requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties
hereto and the Certificateholders in writing of the appointment, resignation or
removal of any Fiscal Agent.
SECTION 8.14. Advance Security Arrangement.
Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may, at is own expense with the
approval of the Depositor, arrange for the pledging of collateral, the
establishment of a reserve fund or the delivery of a letter of credit, surety
bond or other comparable instrument or for any other security or financial
arrangement (any or all of the foregoing, individually and collectively, an
"Advance Security Arrangement") for purposes of supporting its back-up advancing
obligations hereunder; provided that any Advance Security Arrangement shall be
in such form and amount, and shall be maintained in such manner, as (i) would
permit the Trustee to act in such capacity without an Adverse Rating Event in
respect of any Class of Rated Certificates (as confirmed in writing to the
Trustee and the Depositor by each Rating Agency) and (ii) would not result in an
Adverse REMIC Event (as evidenced by an Opinion of Counsel addressed and
delivered to the Trustee and the Depositor). The Trustee may terminate any
Advance Security Arrangement established by it only if and when (i) the
existence of such Advance Security Arrangement is no longer necessary for the
Trustee to satisfy the eligibility requirements of Section 8.06 or (ii) when
such Trustee resigns or is removed as Trustee hereunder.
SECTION 8.15. Filings with the Securities and Exchange
Commission.
(a) With respect to the Trust's fiscal year ____ (and any
other subsequent fiscal year for the Trust, if as of the beginning of such other
subsequent 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, or if reporting under the Exchange Act is
required during or for, as applicable, such fiscal year because the Trustee
failed to make the requisite filing suspending such reporting), the Trustee
shall:
(i) on each Distribution Date 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 and properly file with the Commission
monthly, with respect to the Trust, a Current Report on Form 8-K, which
shall include as an exhibit a copy of the Statement to
Certificateholders disseminated by the Trustee on such Distribution
Date, all reports received by the Trustee from the Master Servicer or
the Special Servicer pursuant to Section 3.12 since the preceding
Distribution Date (or, in the case of the initial Distribution Date,
since the Closing Date), any Officer's Certificates received by the
Trustee from the Master Servicer or the Special Servicer pursuant to
Section 3.09(c), Section 3.09(e), Section 3.09(g), Section 3.11(h),
Section 3.11(i), Section 3.18(c), Section 3.20(e), Section 3.22(a),
Section 4.03(c) or Section 7.01(a) since the preceding Distribution
Date (or, in the case of the initial Distribution Date, since the
Closing Date), any information delivered to the
-225-
Trustee pursuant to the last paragraph of Section 3.24(a) since the
preceding Distribution Date (or, in the case of the initial
Distribution Date, since the Closing Date) and any Proposed Plan, other
items of servicing information received by the Trustee from the Master
Servicer or the Special Servicer as required by this Agreement since
the preceding Distribution Date (or, in the case of the initial
Distribution Date, since the Closing Date);
(ii) during such fiscal year, (A) monitor for and
promptly notify the Depositor of the occurrence or existence of any of
the matters identified in Section 11.09(a) and/or Section 8.15(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 enable the Depositor to
prepare a Current Report on Form 8-K reporting any such matter in
accordance with the Exchange Act, the rules and regulations promulgated
thereunder and applicable "no-action letters" issued by the Commission,
and (C) promptly file with the Commission any such Current Report on
Form 8-K prepared by or on behalf of the Depositor and delivered to the
Trustee;
(iii) at the reasonable request of, and in
accordance with the reasonable directions of, any other party hereto,
prepare for filing 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 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, which shall include as exhibits the
Annual Performance Certifications and Annual Accountants' Reports with
respect to the Master Servicer and the Special Servicer for such fiscal
year, and which shall further include such certification(s) as may be
required under the Xxxxxxxx-Xxxxx Act of 2002 and any interpretive
guidance from the Commission (such certification(s), individually and
collectively, insofar as they are required to be part of any particular
Annual Report on Form 10-K, a "Xxxxxxxx-Xxxxx Certification") (which
Xxxxxxxx-Xxxxx Certifications shall be signed by the party or parties
contemplated by Section 8.15(d));
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable for (or readily convertible to a format suitable for) electronic filing
via the XXXXX system (including "ASCII", "Microsoft Excel" (solely in the case
of reports from the Master Servicer or the Special Servicer pursuant to Section
3.12), "Microsoft Word" or another format reasonably acceptable to the Trustee)
and shall not have any responsibility to convert any such items to such format
(other than those items generated by it or readily convertible to such format)
and (y) the Depositor shall be responsible for preparing, executing and filing
(via the XXXXX system within 15 days following the Closing Date) a Current
Report on Form 8-K reporting the establishment of the Trust and whereby this
Agreement is filed as an exhibit. Each of the other parties to this Agreement
shall deliver to the Trustee in the format required for (or readily convertible
to a format suitable for) electronic filing via the XXXXX system (including
"ASCII", "Microsoft Excel" (solely in the case of reports from the Master
Servicer or the Special Servicer pursuant to Section 3.12), "Microsoft Word" or
another format reasonably acceptable to the Trustee) any and all items
contemplated to be filed with the Commission pursuant to this Section 8.15(a).
-226-
All Current Reports on Form 8-K and Annual Reports on Form
10-K (collectively, together with the exhibits thereto, the "Exchange Act
Reports"), other than 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 (the Exchange Act Reports, exclusive of
such initial Current Report on Form 8-K, the "Subsequent Exchange Act Reports"),
shall be executed: (i) by the Trustee, but only if the Master Servicer is to
execute and deliver each Xxxxxxxx-Xxxxx Certification in its entirety with
respect to the Trust or if the Trustee is to execute any certification that
constitutes part of each Xxxxxxxx-Xxxxx Certification with respect to the Trust;
and (ii) in all other cases, the Depositor. If the Depositor is to sign the
Subsequent Exchange Act Reports, then the Depositor hereby grants to the Trustee
a limited power of attorney to execute and file each such Subsequent Exchange
Act Report on behalf of the Depositor, which power of attorney shall continue
until the earlier of (i) receipt by the Trustee from the Depositor of written
notice terminating such power of attorney or (ii) the termination of the Trust.
The 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 ____
(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, or
if reporting under the Exchange Act is required during or for, as applicable,
any other fiscal year because the Trustee failed to make the requisite filing
suspending such reporting, at all times during such other fiscal year), the
Trustee shall monitor for and promptly notify the Depositor of the occurrence or
existence of any of the following matters of which a Responsible Officer of the
Trustee has actual knowledge:
(i) any failure of the Trustee to make any
monthly distributions to the Holders of any Class of Certificates,
which failure is not otherwise reflected in the Certificateholder
Reports filed with the Commission or has not otherwise been reported to
the Depositor pursuant to any other Section of this Agreement;
(ii) any acquisition or disposition by the Trust
of a Mortgage Loan or an REO Property (or, in the case of any
[Separately Serviced Mortgage Loan] REO Property, any interest
therein), which acquisition or disposition has not otherwise been
reflected in the Certificateholder Reports filed with the Commission or
has not otherwise been reported to the Depositor pursuant to any other
Section of this Agreement;
(iii) any other acquisition or disposition by the
Trust of a significant amount of assets (other than Permitted
Investments, Mortgage Loans and REO Properties (or, in the case of any
[Separately Serviced Mortgage Loan] REO Property, any interest
therein)), 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;
-227-
(vi) any event of bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities, or similar
proceedings in respect of or pertaining to the Trust or any party to
this Agreement, or any actions by or on behalf of the Trust or any
party to this Agreement indicating its bankruptcy, insolvency or
inability to pay its obligations; and
(vii) any change in the rating or ratings assigned
to any Class of Certificates not otherwise reflected in the
Certificateholder Reports filed with the Commission;
provided that (x) the actual knowledge of a Responsible Officer of any of the
Trustee of any material legal proceedings of which property included in the
Trust Fund is subject or of any material legal proceedings threatened by a
governmental authority is limited to circumstances where it would be reasonable
for the Trustee to identify such property as an asset of, or as securing an
asset of, the Trust or such threatened proceedings as concerning the Trust and
(y) no Responsible Officer of the Trustee shall be deemed to have actual
knowledge of the matters described in clauses (vi) and (vii) of this Section
8.15(b) unless such Responsible Officer was notified in writing.
(c) If as of the beginning of any fiscal year for the
Trust (other than fiscal year ____), 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) If the Depositor, the Master Servicer and the Trustee
reasonably determine that the Commission will accept a Xxxxxxxx-Xxxxx
Certification with respect to the Trust in the form of multiple certifications
individually covering separate matters but collectively covering all information
required under applicable law to be included in such Xxxxxxxx-Xxxxx
Certification, then the Trustee shall cause the appropriate officer thereof to
execute and deliver a certification for filing with the Commission which
certification (i) shall constitute a part of such Xxxxxxxx-Xxxxx Certification
and (ii) shall be substantially in the form of the Trustee Backup Certification
(as defined below) that would otherwise have been provided with respect to such
Xxxxxxxx-Xxxxx Certification; provided that no officer of the Trustee shall be
responsible for being the sole signatory of the Xxxxxxxx-Xxxxx Certification to
be filed as part of an Annual Report on Form 10-K relating to the Trust. The
Depositor and the Master Servicer agree to negotiate in good faith regarding
which of them is the appropriate party for purposes of signing any
Xxxxxxxx-Xxxxx Certification with respect to the Trust (exclusive of any
certification to be executed and delivered by the Trustee in accordance with the
preceding sentence), taking into account all relevant factors, including the
prevalent practice in the commercial mortgage securitization industry and the
relative knowledge of the respective parties relating to the subject matter of
such Xxxxxxxx-Xxxxx Certification. In connection with the Trustee's filing of
any Annual Report on Form 10-K with respect to the Trust as contemplated by
Section 8.15(a), the Depositor or the Master Servicer, as applicable in
accordance with the preceding sentence, shall, no later than 10 days prior to
the date on which the Trustee has indicated its intention to file such report,
cause the appropriate officer thereof to execute and deliver to the Trustee,
with respect to the Trust, for filing with such Annual Report on Form 10-K, the
Xxxxxxxx-Xxxxx Certification with manual signature that is to be included as
part of such Annual Report on Form 10-K (exclusive of any certification
constituting part of such Xxxxxxxx-Xxxxx Certification that is to be executed
and delivered by an officer of the Trustee in accordance with the first sentence
of this Section 8.15(d)). Any party hereto whose officer is to sign all or part
of any Xxxxxxxx-Xxxxx
-228-
Certification with respect to the Trust is herein referred to as
a "Certifying Party" and such officer is herein referred to as a "Certifying
Officer".
(e) No later than 15 days prior to any filing of an
Annual Report on Form 10-K that is to be made by the Trustee with respect to the
Trust as contemplated by Section 8.15(a), the Trustee shall deliver a copy of
such report, together with all exhibits thereto, for review by the Depositor,
the Master Servicer and the Special Servicer. Promptly upon receipt of any such
report and the accompanying exhibits, the Depositor, the Master Servicer and the
Special Servicer shall promptly (and in any event within two Business Days)
review such report and the accompanying exhibits and notify the Trustee of any
material misstatements or omissions relating thereto that come to its attention,
which material misstatements or omissions the Trustee shall correct (with
written evidence of such correction to be sent to the Depositor, the Master
Servicer and the Special Servicer) prior to the filing of such report and the
accompanying exhibits.
Promptly following its filing of any Current Report on Form
8-K with respect to the Trust contemplated by Section 8.15(a), the Trustee shall
deliver a copy of such report, together with all exhibits thereto, for review by
the Depositor, the Master Servicer and the Special Servicer. Promptly upon
receipt of any such report and the accompanying exhibits, the Depositor, the
Master Servicer and the Special Servicer shall promptly review such report and
the accompanying exhibits and notify the Trustee of any material misstatements
or omissions relating thereto that come to its attention, which material
misstatements or omissions the Trustee shall correct (with written evidence of
such correction to be sent to the Depositor, the Master Servicer and the Special
Servicer) by filing an amendment to such Current Report on Form 8-K.
(f) No later than 10 days prior to the date on which the
Trustee has indicated its intention to file any Annual Report on Form 10-K with
respect to the Trust, unless the Trustee is to be a Certifying Party with
respect to the Xxxxxxxx-Xxxxx Certification to be included as part of such
Annual Report on Form 10-K, the Trustee shall cause the appropriate officer of
the Trustee (i.e., the officer thereof that would have been authorized to sign
the subject Xxxxxxxx-Xxxxx Certification if the Trustee were the Certifying
Party) to execute and deliver to each Certifying Party and Certifying Officer a
certification (a "Trustee Backup Certification"), substantially in the form of
the subject Xxxxxxxx-Xxxxx Certification, which Trustee Backup Certification (i)
shall include a statement acknowledging that the officer of the Trustee signing
such certification has reviewed all Subsequent Exchange Act Reports to be
covered by the subject Xxxxxxxx-Xxxxx Certification, (ii) shall state, based on
the knowledge of the officer of the Trustee that is signing such certification,
that the information in the Subsequent Exchange Act Reports to be covered by
such Xxxxxxxx-Xxxxx Certification 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, (iii) shall state, based on
the knowledge of the officer of the Trustee signing such certification, that the
information in the Subsequent Exchange Act Reports to be covered by such
Xxxxxxxx-Xxxxx Certification 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 Statements to Certificateholders for the relevant
period covered by the subject Annual Report on Form 10-K and (iv) shall state,
based on the knowledge of the officer of the Trustee signing such certification,
that the
-229-
information in the Subsequent Exchange Act Reports to be covered by such
Xxxxxxxx-Xxxxx Certification includes all servicing information provided to the
Trustee by the Master Servicer and/or the Special Servicer hereunder (insofar as
such servicing information was required to be delivered by the Master Servicer
and/or the Special Servicer to the Trustee hereunder). The Trustee shall
indemnify and hold harmless each Certifying Party and Certifying Officer to whom
it is required to deliver any Trustee Backup Certification for all losses,
liabilities, claims, damages, costs and expenses (including reasonable
attorneys' fees and expenses) resulting from a breach of any certification made
in such Trustee Backup Certification, as well as any other losses, claims,
damages, costs and expenses (including reasonable attorneys' fees and expenses)
incurred by such Certifying Party or Certifying Officer, as the case may be, in
connection with the execution and delivery of the subject Xxxxxxxx-Xxxxx
Certification resulting from the negligence, bad faith or willful misfeasance of
the Trustee in connection with the performance by the Trustee of its duties
hereunder.
(g) No later than 10 days prior to the date on which the
Trustee has indicated its intention to file any Annual Report on Form 10-K with
respect to the Trust, unless the Master Servicer is to be a Certifying Party
with respect to the Xxxxxxxx-Xxxxx Certification to be included as part of such
Annual Report on Form 10-K, the Master Servicer shall cause the appropriate
officer of the Master Servicer (i.e., the officer thereof that would have been
authorized to sign the subject Xxxxxxxx-Xxxxx Certification if the Master
Servicer were the Certifying Party) to execute and deliver to each Certifying
Party and Certifying Officer a certification (a "Master Servicer Backup
Certification"), substantially in the form of the subject Xxxxxxxx-Xxxxx
Certification, which Master Servicer Backup Certification (i) shall include a
statement acknowledging that the officer of the Master Servicer signing such
certification has reviewed all Subsequent Exchange Act Reports to be covered by
the subject Xxxxxxxx-Xxxxx Certification, (ii) shall state, based on the
knowledge of the officer of the Master Servicer that is signing such
certification, that the information in the Subsequent Exchange Act Reports to be
covered by such Xxxxxxxx-Xxxxx Certification relating to servicing information,
including information relating to actions of the Master Servicer and/or payments
and other collections on and characteristics of the 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 the period covered by the subject Annual Report on Form
10-K, (iii) shall state, based on the knowledge of the officer of the Master
Servicer signing such certification, that the information in the Subsequent
Exchange Act Reports to be covered by such Xxxxxxxx-Xxxxx Certification relating
to servicing information, including information relating to actions of the
Master Servicer and/or payments and other collections on and characteristics of
the Mortgage Loans and REO Properties, includes all information of such type
required to be delivered to the Trustee under this Agreement for the relevant
period covered by the subject Annual Report on Form 10-K, (iv) shall state that
the officer of the Master Servicer signing such certification is responsible for
reviewing the activities performed by the Master Servicer under this Agreement
and, based upon the review required under this Agreement, and except as
disclosed in the subject Annual Report on Form 10-K, the Master Servicer has
fulfilled its obligations under this Agreement, and (v) the officer of the
Master Servicer signing such certification has disclosed to the Depositor's
certified public accountants and the accountants that are to deliver the Annual
Accountants' Report in respect of the Master Servicer with respect to the
relevant period covered by the subject Annual Report on Form 10-K 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 this Agreement. The Master Servicer shall indemnify and
hold harmless each Certifying Party and
-230-
Certifying Officer to whom it is required to deliver any Master Servicer Backup
Certification for all losses, liabilities, claims, damages, costs and expenses
(including reasonable attorneys' fees and expenses) resulting from a breach of
any certification made in such Master Servicer Backup Certification, as well as
any other losses, claims, damages, costs and expenses (including reasonable
attorneys' fees and expenses) incurred by such Certifying Party or Certifying
Officer, as the case may be, in connection with the execution and delivery of
the subject Xxxxxxxx-Xxxxx Certification resulting from the negligence, bad
faith or willful misfeasance of the Master Servicer in connection with the
performance by the Master Servicer of its duties hereunder.
(h) No later than 10 days prior to the date on which the
Trustee has indicated its intention to file any Annual Report on Form 10-K with
respect to the Trust, the Special Servicer shall cause the appropriate officer
of the Special Servicer (i.e., the officer thereof that would have been
authorized to sign the subject Xxxxxxxx-Xxxxx Certification if the Special
Servicer were the Certifying Party) to execute and deliver to each Certifying
Party and Certifying Officer a certification (a "Special Servicer Backup
Certification"), substantially in the form of the subject Xxxxxxxx-Xxxxx
Certification, which Special Servicer Backup Certification (i) shall include a
statement acknowledging that the officer of the Special Servicer signing such
certification has reviewed all Subsequent Exchange Act Reports to be covered by
the subject Xxxxxxxx-Xxxxx Certification, (ii) shall state, based on the
knowledge of the officer of the Special Servicer that is signing such
certification, that the information in the Subsequent Exchange Act Reports to be
covered by such Xxxxxxxx-Xxxxx Certification relating to servicing information,
including information relating to actions of the Special Servicer and/or
payments and other collections on and characteristics of the Specially Serviced
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 the period covered by the
subject Annual Report on Form 10-K, (iii) shall state, based on the knowledge of
the officer of the Special Servicer signing such certification, that the
information in the Subsequent Exchange Act Reports to be covered by such
Xxxxxxxx-Xxxxx Certification relating to servicing information, including
information relating to actions of the Special Servicer and/or payments and
other collections on and characteristics of the Specially Serviced Mortgage
Loans and REO Properties, includes all information of such type required to be
delivered to the Master Servicer or the Trustee for the relevant period covered
by the subject Annual Report on Form 10-K, (iv) shall state that the officer of
the Special Servicer signing such certification is responsible for reviewing the
activities performed by the Special Servicer under this Agreement and, based
upon the review required under this Agreement, and except as disclosed in the
subject Annual Report on Form 10-K, the Special Servicer has fulfilled its
obligations under this Agreement, and (v) the officer of the Special Servicer
signing such certification has disclosed to the Depositor's certified public
accountants and the accountants that are to deliver the Annual Accountants'
Report in respect of the Special Servicer with respect to the relevant period
covered by the subject Annual Report on Form 10-K all significant deficiencies
relating to the Special Servicer's compliance with the minimum servicing
standards in accordance with a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar standard as set forth
in this Agreement. The Special Servicer shall indemnify and hold harmless each
Certifying Party and Certifying Officer to whom it is required to deliver any
Special Servicer Backup Certification for all losses, liabilities, claims,
damages, costs and expenses (including reasonable attorneys' fees and expenses)
resulting from a breach of any certification made in such Special Servicer
Backup Certification, as well as any other losses, claims, damages, costs and
expenses (including reasonable attorneys' fees and expenses) incurred by such
Certifying Party or Certifying Officer, as the case may be, in connection with
the execution and delivery of the subject
-231-
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.
(i) No later than 10 days prior to the date on which the
Trustee has indicated its intention to file any Annual Report on Form 10-K with
respect to the Trust, unless the Depositor is the Certifying Party, the
Depositor shall provide such backup certification to each Certifying Party and
Certifying Officer as shall be reasonably requested, but only insofar as such
backup certification covers matters which are uniquely known to the Depositor,
as opposed to the Trustee, the Master Servicer and/or the Special Servicer. The
Depositor shall indemnify and hold harmless each Certifying Party and Certifying
Officer to whom it is required to deliver any such backup certification for all
losses, liabilities, claims, damages, costs and expenses (including reasonable
attorneys' fees and expenses) resulting from a breach of any certification made
in such backup certification, as well as any other losses, claims, damages,
costs and expenses (including reasonable attorneys' fees and expenses) incurred
by such Certifying Party or Certifying Officer, as the case may be, in
connection with the execution and delivery of the subject Xxxxxxxx-Xxxxx
Certification resulting from the negligence, bad faith or willful misfeasance of
the Depositor in connection with the performance by the Depositor of its duties
hereunder.
(j) No later than 15 days prior to the date on which the
Trustee has indicated its intention to file the subject Annual Report on Form
10-K, the Depositor shall cause a firm of Independent Accountants to deliver an
agreed-upon procedures letter to the Master Servicer (provided that the Master
Servicer is to be the sole Certifying Party with respect to the Xxxxxxxx-Xxxxx
Certification to be included in such Annual Report on Form 10-K) verifying the
accuracy in all material respects of that portion of the information in any
Statements to Certificateholders to be covered by the related Xxxxxxxx-Xxxxx
Certification that was prepared by the Trustee, including any information
included in the Statements to Certificateholders covered by such Xxxxxxxx-Xxxxx
Certification that relates to distributions on, and Certificate Principal
Balances, Certificate Notional Amounts, Pass-Through Rates and other
characteristics of, the Certificates.
(k) The respective parties hereto agree to cooperate with
all reasonable requests made by any Certifying Party or Certifying Officer in
connection with such Person's attempt to conduct any due diligence that such
Person reasonably believes to be appropriate in order to allow it to deliver any
Xxxxxxxx-Xxxxx Certification or portion thereof with respect to the Trust.
(l) Unless the other parties hereto receive written
notice from the Trustee to the contrary, the Trustee hereby certifies that it
intends to file any Annual Report on Form 10-K with respect to the Trust for any
particular fiscal year on the last Business Day that is not more than 90 days
following the end of such fiscal year. Unless an alternative time period is
provided for in this Agreement, the respective parties hereto shall deliver to
the Trustee, at least 10 Business Days prior to the date on which the Trustee
intends to file any Annual Report on Form 10-K as contemplated by Section
8.15(a), any items required to be delivered by such party that are to be an
exhibit to such Annual Report on Form 10-K.
-232-
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of
All Mortgage Loans.
(a) Subject to Section 9.02, the Trust and the respective
obligations and responsibilities under this Agreement of the parties hereto
(other than the obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of: (i) the purchase by any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders, the Master Servicer or the Special Servicer of all Mortgage
Loans and each REO Property remaining in the Trust Fund at a price (the
"Termination Price") equal to (A) the aggregate Purchase Price of all the
Mortgage Loans remaining in the Trust Fund (exclusive of any such Mortgage Loan
that is an REO Loan), plus (B) the appraised value of each REO Property, if any,
included in the Trust Fund, such appraisal to be conducted by a Qualified
Appraiser selected by the Special Servicer and approved by the Trustee and the
Master Servicer, minus (C) if the purchaser is the Master Servicer or the
Special Servicer, the aggregate amount of unreimbursed Advances made by such
Person, together with any unpaid Advance Interest in respect of such
unreimbursed Advances and any unpaid servicing compensation payable to such
Person (which items shall be deemed to have been paid or reimbursed to the
Master Servicer or the Special Servicer, as the case may be, in connection with
such purchase); (ii) the exchange by the Sole Certificateholder(s) of all the
Certificates for all the Mortgage Loans and each REO Property remaining in the
Trust Fund; and (iii) the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; provided, however, that in no event shall the Trust continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
(b) Any single Controlling Class Certificateholder or
group of Controlling Class Certificateholders, the Master Servicer or the
Special Servicer, in that order of preference, may at its option elect to
purchase all the Mortgage Loans and each REO Property remaining in the Trust
Fund as contemplated by clause (i) of Section 9.01(a) by giving written notice
to the other parties hereto (and, in the case of an election by the Master
Servicer or Special Servicer, to the Holders of the Controlling Class) no later
than 60 days prior to the anticipated date of purchase; provided, however, that
the aggregate Stated Principal Balance of the Mortgage Pool at the time of such
election is less than 1.0% of the Initial Pool Balance; and provided, further,
that within 30 days after written notice of such election is so given, no Person
with a higher right of priority to make such an election does so; and provided,
further, that if more than one Controlling Class Certificateholder or group of
Controlling Class Certificateholders desire to purchase all of the Mortgage
Loans and any REO Properties, preference shall be given to the Controlling Class
Certificateholder or group of Controlling Class Certificateholders with the
largest Percentage Interest in the Controlling Class. If the Trust is to be
terminated in connection with the purchase of all the Mortgage Loans and each
REO Property remaining in the Trust Fund by the Master Servicer, the Special
Servicer or any Controlling Class Certificateholder(s), such Person(s) shall:
(i) deliver to the Master Servicer for deposit (or, if the Master Servicer is
the purchaser, it shall deposit) in the Collection Account (after the
Determination Date, and prior to the Master
-233-
Servicer Remittance Date, relating to the anticipated Final Distribution Date)
an amount in immediately available funds equal to the Termination Price; and
(ii) reimburse all of the parties hereto (other than itself, if applicable) for
all reasonable out-of-pocket costs and expenses incurred by such parties in
connection with such purchase. On the Master Servicer Remittance Date for the
Final Distribution Date, the Master Servicer shall transfer to the Distribution
Account all amounts required to be transferred thereto on such Master Servicer
Remittance Date from the Collection Account pursuant to the first paragraph of
Section 3.04(b), together with any other amounts on deposit in the Collection
Account that would otherwise be held for future distribution. Upon confirmation
that the deposit of the Termination Price has been made to the Collection
Account and the reimbursement contemplated by the second preceding sentence has
been made to the parties hereto, the Custodian (on behalf of the Trustee) shall
release or cause to be released to the purchasing party (or its designee) the
Mortgage Files for the remaining Mortgage Loans, and the Trustee shall execute
all assignments, endorsements and other instruments furnished to it by the
purchasing party as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties to the purchasing party (or its designee).
(c) The Sole Certificateholder(s) shall have the right to
exchange all the of Certificates for all of the Mortgage Loans and each REO
Property remaining in the Trust Fund as contemplated by clause (ii) of Section
9.01(a) by giving written notice to all the parties hereto no later than 60 days
prior to the anticipated date of exchange. In the event that the Sole
Certificateholder(s) shall elect to exchange all of the Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund in
accordance with the preceding sentence, the Sole Certificateholder(s), not later
than the Master Servicer Remittance Date relating to the Distribution Date on
which the final distribution on the Certificates is to occur, shall deposit in
the Collection Account an amount in immediately available funds equal to all
amounts then due and owing to the Master Servicer, the Special Servicer, the
Trustee and/or any Fiscal Agent hereunder that may be withdrawn from the
Collection Account pursuant to Section 3.05(a) or that may be withdrawn from the
Distribution Account pursuant to Section 3.05(b). In addition, the Master
Servicer shall transfer to the Distribution Account all amounts required to be
transferred to such account on such Master Servicer Remittance Date from the
Collection Account pursuant to the first paragraph of Section 3.04(b). Upon
confirmation that such final deposits have been made and following the surrender
of all the Certificates on the Final Distribution Date, the Trustee shall
release or cause to be released to the Sole Certificateholder(s) or any designee
thereof, the Mortgage Files for the remaining Mortgage Loans, and the Trustee
shall execute all assignments, endorsements and other instruments furnished to
it by the Sole Certificateholder(s) as shall be necessary to effectuate transfer
of the Mortgage Loans and REO Properties remaining in the Trust Fund.
(d) Notice of any termination shall be given promptly by
the Trustee by letter to Certificateholders mailed (x) if such notice is given
in connection with the purchase or other acquisition of all the Mortgage Loans
and each REO Property remaining in the Trust Fund by the Master Servicer, the
Special Servicer, any Controlling Class Certificateholder(s) or the Sole
Certificateholder(s), not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of the final distribution on the
Certificates and (y) otherwise during the month of such final distribution on or
before the Master Servicer Remittance Date in such month, in any event
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment on the Certificates will be made, (ii) the amount of any such
final payment in respect of each Class of Certificates and (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office or agency of the Certificate Registrar
-234-
therein designated. The Trustee shall give such notice to the other parties
hereto at the time such notice is given to Certificateholders.
(e) 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 on deposit in the Distribution Account that is allocable to payments on
the relevant Class in accordance with Section 4.01. Any funds not distributed to
any Holder or Holders of Certificates of any Class on the Final 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 escheat laws, the Trustee shall distribute to the Class R
Certificateholders all unclaimed funds and other assets which remain subject
hereto.
SECTION 9.02. Additional Termination Requirements.
(a) If the Master Servicer, the Special Servicer or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders purchases, or the Sole Certificateholder(s) shall exchange
all of the Certificates for, all the Mortgage Loans and each REO Property
remaining in the Trust Fund as provided in Section 9.01, the Trust and each
REMIC Pool shall be terminated in accordance with the following additional
requirements, unless the purchasing party obtains at its own expense and
delivers to the Trustee an Opinion of Counsel, addressed to the Trustee, to the
effect that the failure of the Trust to comply with the requirements of this
Section 9.02 will not result in an Adverse REMIC Event with respect to any REMIC
Pool:
(i) the Trustee 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 regulation section
1.860F-1 and shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder (as
evidenced by an Opinion of Counsel to such effect delivered on behalf
and at the expense of the purchasing party);
(ii) during such 90-day liquidation period and at
or prior to the time of making the final payment on the Certificates,
the Trustee shall sell/transfer all the Mortgage Loans and each REO
Property to the Master Servicer, the Special Servicer, the applicable
Controlling Class Certificateholder(s) or the Sole
Certificateholder(s), as the case may be, in exchange for cash and/or
Certificates in accordance with Section 9.01; and
-235-
(iii) immediately following the making of the
final payment on the Certificates, the Trustee shall distribute or
credit, or cause to be distributed or credited, to the Holders of the
Class R Certificates all remaining 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
hereby authorize the Trustee to prepare and adopt, on behalf of the Trust, a
plan of complete liquidation of each REMIC Pool in accordance with the terms and
conditions of this Agreement, which authorization shall be binding upon all
successor Certificateholders.
SECTION 9.03. [Separately Serviced Mortgage Loan] REO
Property.
References to "REO Property" and "REO Properties" in Section
9.01 and Section 9.02 shall mean, in the context of any [Separately Serviced
Mortgage Loan] REO Property, solely the Trust's interest in the [Separately
Serviced Mortgage Loan] REO Property.
-236-
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.
(a) Subject to Section 10.01(c), the Trustee shall elect
to treat each REMIC Pool as a REMIC under the Code and, if necessary, under
applicable state law. Each such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state Tax
Returns for the taxable year ending on the last day of the calendar year in
which the Certificates are issued.
(b) The Plurality Class R Certificateholder is hereby
designated as the Tax Matters Person of each REMIC Pool and, in such capacity,
shall be responsible to act on behalf of such REMIC Pool in relation to any tax
matter or controversy, to represent such REMIC Pool in any administrative or
judicial proceeding relating to an examination or audit by any governmental
taxing authority, to request an administrative adjustment as to any taxable year
of such REMIC Pool, to enter into settlement agreements with any governmental
taxing agency with respect to such REMIC Pool, to extend any statute of
limitations relating to any tax item of such REMIC Pool and otherwise to act on
behalf of such REMIC Pool in relation to any tax matter or controversy involving
such REMIC Pool; provided that the Trustee is hereby irrevocably appointed and
agrees to 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. The legal expenses and costs of any
action described in this Section 10.01(b) and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust payable out of amounts on
deposit in the Distribution Account as provided by Section 3.05(b) unless such
legal expenses and costs are incurred by reason of a Tax Matters Person's or the
Trustee's misfeasance, bad faith or negligence in the performance of, or such
Person's reckless disregard of, its obligations or are expressly provided by
this Agreement to be borne by any party hereto.
(c) The Trustee shall prepare (or cause to be prepared),
sign and file all of the Tax Returns in respect of each REMIC Pool (other than
Tax Returns required to be filed by the Master Servicer and/or the Special
Servicer pursuant to Section 3.09) and all of the applicable income tax and
other information returns for each Grantor Trust Pool and, if required on any
future date pursuant to a change in applicable law, the Group Terrorism
Insurance Policy Reserve Fund. For the avoidance of doubt, the Trustee shall
prepare (or cause to be prepared), sign and file all Tax Returns in respect of
each Loan REMIC only beginning with the taxable year ending December 31, ___.
The expenses of preparing and filing such returns shall be borne by the Trustee
without any right of reimbursement therefor.
(d) The Trustee shall perform on behalf of each REMIC
Pool all reporting and other tax compliance duties that are the responsibility
of 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 Trustee shall provide: (i) to any Transferor of a Class R
Certificate, such information as is necessary for the application of any tax
relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee; (ii) to the Certificateholders, such information or
reports as are required by the Code or the REMIC Provisions, including reports
relating to interest, original issue discount and market discount or premium
(using the Prepayment Assumption
-237-
as required); and (iii) to the IRS, the name, title, address and telephone
number of the Person who will serve as the representative of each REMIC Pool.
(e) The Trustee shall take such action and shall cause
each REMIC Pool to take such action as shall be necessary to create or maintain
the status thereof as a REMIC under the REMIC Provisions (and the other parties
hereto shall assist it, to the extent reasonably requested by the Trustee), to
the extent that the Trustee has actual knowledge that any particular action is
required; provided that the Trustee shall be deemed to have knowledge of
relevant tax laws. Except as contemplated by Section 3.17(a), the Trustee shall
not knowingly take or fail to take any action, or cause any REMIC Pool to take
or fail to take any action, that under the REMIC Provisions, if taken or not
taken, as the case may be, could result in an Adverse REMIC Event in respect of
any REMIC Pool or an Adverse Grantor Trust Event with respect to either Grantor
Trust Pool, unless the Trustee has received an Opinion of Counsel (at the
expense of the person requesting such action or non-action) to the effect that
the contemplated action or non-action, as the case may be, will not result in an
Adverse REMIC Event or an Adverse Grantor Trust Event. Except as contemplated by
Section 3.17(a), none of the other parties hereto shall take or fail to take any
action (whether or not authorized hereunder) as to which the Trustee has advised
it in writing that it has received an Opinion of Counsel to the effect that an
Adverse REMIC Event or an Adverse Grantor Trust Event could occur with respect
to such action. In addition, prior to taking any action with respect to any
REMIC Pool or the assets thereof, or causing any REMIC Pool to take any action,
which is not contemplated by the terms of this Agreement, each of the other
parties hereto will consult with the Trustee, in writing, with respect to
whether such action could cause an Adverse REMIC Event or an Adverse Grantor
Trust Event to occur, and no such other party shall take any such action or
cause any REMIC Pool to take any such action as to which the Trustee has advised
it in writing that an Adverse REMIC Event or an Adverse Grantor Trust Event
could occur. The Trustee may consult with counsel to make such written advice,
and the cost of same shall be borne by the party seeking to take the action not
permitted by this Agreement.
(f) If any tax is imposed on any 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 any 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 on behalf of the Trust pursuant
to Section 3.17(a)), then such tax, together with all incidental costs and
expenses (including penalties and reasonable attorneys' fees), shall be charged
to and paid by: (i) the Trustee, if such tax arises out of or results from a
breach by the Trustee of any of its obligations hereunder (which breach
constitutes negligence, bad faith or willful misconduct); (ii) any Fiscal Agent,
if such tax arises out of or results from a breach by such Fiscal Agent of any
of its obligations hereunder (which breach constitutes negligence, bad faith or
willful misconduct); (iii) the Master Servicer, if such tax arises out of or
results from a breach by the Master Servicer of any of its obligations hereunder
(which breach constitutes negligence, bad faith or willful misconduct); (iv) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations hereunder (which breach constitutes
negligence, bad faith or willful misconduct); or (v) the Trust, out of the Trust
Fund (exclusive of Grantor Trust Pools), in all other instances. If any tax is
imposed on either Grantor Trust Pool, such tax, together with all incidental
costs and expenses (including, without limitation, penalties and reasonable
attorneys' fees), shall be charged to and paid by: (i) the Trustee, if such tax
arises out of or results from a breach by the Trustee of any of its obligations
hereunder (which breach constitutes negligence, bad faith or willful
misconduct); (ii) any Fiscal Agent,
-238-
if such tax arises out of or results from a breach by such Fiscal Agent of any
of its obligations hereunder (which breach constitutes negligence, bad faith or
willful misconduct); (iii) the Master Servicer, if such tax arises out of or
results from a breach by the Master Servicer of any of its obligations hereunder
(which breach constitutes negligence, bad faith or willful misconduct); (iv) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations hereunder (which breach constitutes
negligence, bad faith or willful misconduct); or (v) the Trust, out of the
portion of the Trust Fund constituting such Grantor Trust Pool, 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. Any such amounts
payable by the Trust in respect of taxes shall be paid by the Trustee out of
amounts on deposit in the Distribution Account.
(g) The Trustee and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each REMIC Pool and each Grantor Trust Pool on a
calendar year and an accrual basis.
(h) Following the Startup Day for each REMIC Pool, the
Trustee shall not (except as contemplated by Section 3.06) accept any
contributions of assets to any REMIC Pool unless it shall have received an
Opinion of Counsel (at the expense of the party seeking to cause such
contribution) to the effect that the inclusion of such assets in such REMIC Pool
will not result in an Adverse REMIC Event in respect of such REMIC Pool or an
Adverse Grantor Trust Event with respect to either Grantor Trust Pool.
(i) None of the Master Servicer, the Special Servicer,
the Trustee or any Fiscal Agent shall consent to or, to the extent it is within
the control of such Person, permit: (i) the sale or disposition of any Mortgage
Loan (except as contemplated by Section 2.03 or 3.18 or otherwise in connection
with (A) the foreclosure, default or reasonably foreseeable material default of
the subject Mortgage Loan, including the sale or other disposition of a
Mortgaged Property acquired by foreclosure, deed in lieu of foreclosure or
otherwise, (B) the bankruptcy of any REMIC Pool, or (C) the termination of the
Trust pursuant to Article IX of this Agreement); (ii) the sale or disposition of
any investments in any Account for gain; or (iii) the acquisition of any assets
for the Trust (other than a Mortgaged Property acquired through foreclosure,
deed in lieu of foreclosure or otherwise in respect of a defaulted Mortgage
Loan, other than Permitted Investments acquired in connection with the
investment of funds in an Account or an interest in a single member limited
liability company, as provided in Section 3.16); 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) to the effect that such sale,
disposition, or acquisition will not result in an Adverse REMIC Event in respect
of any REMIC Pool or an Adverse Grantor Trust Event with respect to either
Grantor Trust Pool.
(j) Except as otherwise permitted by Section 3.17(a),
none of the Master Servicer, the Special Servicer or the Trustee shall enter
into any arrangement by which any REMIC Pool will receive a fee or other
compensation for services or, to the extent it is within the control of such
Person, permit any 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. At all times as may
be required by the Code, each of the respective parties hereto (to the extent it
is within its control) shall ensure that substantially all of the assets of each
REMIC Pool will consist of
-239-
"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.
(k) Within 30 days after the related Startup Day, the
Trustee shall prepare and file with the IRS, with respect to each REMIC Pool,
Form 8811 "Information Return for Real Estate Mortgage Investment Conduits
(REMICs) and Issuers of Collateralized Debt Obligations".
(l) The parties intend that the portion of the Trust Fund
consisting of Post-ARD Additional Interest on the ARD Mortgage Loans and the
Class Y Sub-Account shall constitute, and that the affairs of such portion of
the Trust Fund shall be conducted so as to qualify as, a Grantor Trust, and the
provisions hereof shall be interpreted consistently with this intention. In
addition, the parties intend that the portion of the Trust Fund consisting of
the REMIC I Residual Interest, the REMIC II Residual Interest, the REMIC III
Residual Interest and the Loan REMIC Residual Interests shall constitute, and
the affairs of such portion of the Trust Fund shall be conducted so as to
qualify as, a Grantor Trust, and the provisions hereof shall be interpreted
consistently with this intention. The Trustee shall perform on behalf of each
Grantor Trust Pool all reporting and other tax compliance duties that are the
responsibility of such Grantor Trust Pool under the Code or any compliance
guidance issued by the IRS or any state or local taxing authorities. The
expenses of preparing and filing such returns shall be borne by the Trustee.
(m) The Trustee, the Master Servicer and the Special
Servicer shall comply with the terms of each Loan REMIC Declaration to the
extent that such Loan REMIC Declaration is not inconsistent with the provisions
of this Agreement.
SECTION 10.02. Depositor, Master Servicer, Special Servicer
and Fiscal Agent to Cooperate with Trustee.
(a) The Depositor shall provide or cause to be provided
to the Trustee, within 10 days after the Closing Date, all information or data
that the Trustee reasonably determines to be relevant for tax purposes as to the
valuations and issue prices of the Certificates, including the price, yield,
prepayment assumption and projected cash flow of the Certificates.
(b) Each of the Master Servicer, the Special Servicer and
any Fiscal Agent shall furnish such reports, certifications and information in
its possession, and access to such books and records maintained thereby, as may
relate to the Certificates or the Trust Fund and as shall be reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
-240-
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, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be inconsistent with any other
provision herein, (iii) to add any other provisions with respect to matters or
questions arising hereunder which shall not be inconsistent with the already
existing provisions hereof, (iv) as evidenced by an Opinion of Counsel delivered
to 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 REMIC Pool or either
Grantor Trust Pool 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
any REMIC Pool or either Grantor Trust Pool, (v) 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), or (vi) to otherwise modify or delete existing
provisions of this Agreement; provided that no such amendment (other than any
amendment for any of the specific purposes described in clauses (iv) and (v)
above) shall adversely affect in any material respect the interests of any
Certificateholder, as evidenced by an Opinion of Counsel to that effect
addressed and delivered to each of the parties to this Agreement; and provided,
further, that no such amendment shall significantly change the activities of the
Trust.
(b) This Agreement may also be amended from time to time
by the mutual agreement of the parties hereto, with the consent of the Holders
of Certificates entitled to not less than 51% of the Voting Rights allocated to
all of the 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 Mortgage Loans and/or REO
Properties which are required to be distributed on any Certificate, without the
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (i) above, without the consent of the Holders
of all Certificates of such Class, (iii) significantly change the activities of
the Trust without the consent of Holders of Certificates entitled to not less
than 51% of all the Voting Rights (without taking into account Certificates held
by the Depositor or any of its Affiliates and/or agents), or (iv) modify the
provisions of this Section 11.01 or the definition of "Servicing Standard",
without the consent of the Holders of all Certificates then outstanding.
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 the Depositor or any Affiliate of the
Depositor shall (except as expressly contemplated by clause (iii) of the prior
sentence) be entitled to the same Voting Rights with respect to the matters
described above as they would if registered in the name of any other Person.
(c) Notwithstanding any contrary provision of this
Agreement, the Trustee shall not consent to any amendment to this Agreement
unless it shall first have obtained or been furnished with an
-241-
Opinion of Counsel to the effect that neither such amendment nor the exercise of
any power granted to any party hereto in accordance with such amendment will
result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool. In addition,
prior to the execution of any amendment to this Agreement, the Trustee shall be
entitled to receive and rely upon an Opinion of Counsel (addressed to each of
the parties to this Agreement) stating that the execution of such amendment is
authorized or permitted by this Agreement.
(d) Promptly after the execution and delivery of any
amendment by all parties thereto, the Trustee shall send a copy thereof to each
Certificateholder and to each Rating Agency.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization, execution and delivery thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter
into any amendment pursuant to this Section 11.01 that affects its rights,
duties and immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered
pursuant to Section 11.01(a) or (c) shall be borne by the Person seeking the
related amendment, except that if the Trustee requests any amendment of this
Agreement that it reasonably believes protects or is in furtherance of the
rights and interests of Certificateholders, the cost of any Opinion of Counsel
required in connection therewith pursuant to Section 11.01(a) or (c) shall be
payable out of the Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the properties subject to the Mortgages are situated, and in any
other appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust (payable out of the
Collection Account), but only if (i) the Master Servicer determines in its
reasonable good faith judgment that such recordation materially and beneficially
affects the interests of the Certificateholders and (ii) the Controlling Class
Representative consents.
(b) For the purpose of facilitating the recordation of
this Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder
shall not operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
-242-
(b) No Certificateholder shall have any right to vote
(except as expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue
of any provision of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement or any
Mortgage Loan, unless, with respect to any suit, action or proceeding upon or
under or with respect to this Agreement, such Holder previously shall have given
to the Trustee a written notice of default hereunder, and of the continuance
thereof, as hereinbefore provided, and unless also (except in the case of a
default by the Trustee) the Holders of Certificates entitled to at least 25% of
the Voting Rights shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as Trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of any other Holders of Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder (which priority
or preference is not otherwise provided for herein), or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 11.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04. Governing Law.
THIS AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY IN SAID STATE, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall
be in writing (including by telecopy) and, unless otherwise expressly provided
herein, shall be deemed to have been duly given when delivered to or, in the
case of telecopy notice, when received: (i) in the case of the Depositor,
Citigroup Commercial Mortgage Securities Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: __________; (ii) in the case of the Master Servicer,
__________, Attention: __________; (iii) in the case of the Special Servicer,
__________, Attention: __________; (v) in the case of the Rating Agencies, (A)
__________, Attention: __________; and (B) __________, Attention: __________;
(vi) in the case of any Mortgage Loan Seller, the address for notices to it
under the related
-243-
Mortgage Loan Purchase Agreement; or as to each such Person such other address
and/or telecopy number as may hereafter be furnished by such Person to the
parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be deemed to have been duly given when
mailed first class, postage prepaid, to the address of such Holder as shown in
the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenant(s), agreement(s), provision(s) or term(s) shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 11.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto, their respective successors and
assigns and, as third party beneficiaries (with all right to enforce the
obligations hereunder intended for their benefit as if a party hereto), the
Underwriters and the non-parties referred to in Sections 6.03, 8.05 and 3.22(g),
and all such provisions shall inure to the benefit of the Certificateholders. No
other person, including any Borrower, shall be entitled to any benefit or
equitable right, remedy or claim under this Agreement.
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09. Notices to and from the Rating Agencies and
the Depositor.
(a) The Trustee shall promptly provide notice to each
Rating Agency and the Depositor with respect to each of the following of which a
Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this
Agreement;
(ii) the occurrence of any Event of Default that
has not been cured;
(iii) the resignation, termination, merger or
consolidation of the Master Servicer or the Special Servicer and the
appointment of a successor;
(iv) the appointment, resignation or removal of a
Fiscal Agent;
(v) any change in the location of the
Distribution Account, the Interest Reserve Account or the Excess
Liquidation Proceeds Account;
(vi) any repurchase of a Mortgage Loan by or on
behalf of a Mortgage Loan Seller as contemplated by Section 2.03; and
-244-
(vii) the final payment to any Class of
Certificateholders.
(b) The Master Servicer shall promptly provide notice to
each Rating Agency and the Depositor with respect to each of the following of
which it has actual knowledge:
(i) the resignation or removal of the Trustee
and the appointment of a successor; and
(ii) any change in the location of the Collection
Account.
(c) Each of the Master Servicer and the Special Servicer,
as the case may be, shall furnish each Rating Agency such information with
respect to the Mortgage Loans as such Rating Agency shall reasonably request and
which the Master Servicer or the Special Servicer, as the case may be, can
reasonably provide to the extent consistent with applicable law and the related
Mortgage Loan Documents. In any event, the Master Servicer and the Special
Servicer shall notify each Rating Agency with respect to each of the following
of which it has actual knowledge:
(i) any change in the lien priority of the
Mortgage securing any Mortgage Loan;
(ii) in the case of any Performing Serviced
Mortgage Loan that constitutes one of the ten largest Mortgage Loans
(by unpaid principal balance) in the Mortgage Pool and that is secured
by a Mortgaged Property used for retail purposes, any change in the
identity of the anchor tenant (i.e., a tenant representing more than
20% of the total net rentable square feet of space) at the related
Mortgaged Property or any change in the term of the lease for an anchor
tenant at the related Mortgaged Property;
(iii) any assumption of, or release or
substitution of collateral for, a Mortgage Loan that represents greater
than __% of the then aggregate Stated Principal Balance of the Mortgage
Pool; and
(iv) any defeasance of a Mortgage Loan or any
material damage to a Mortgaged Property.
(d) Each of the Master Servicer and the Special Servicer,
as the case may be, shall promptly furnish to each Rating Agency copies of the
following items (in each case, at or about the same time that it delivers or
causes the delivery of such item to the Trustee):
(i) each of its Annual Performance
Certifications;
(ii) each of its Annual Accountants' Reports; and
(iii) upon request, to the extent not already
delivered, through hard copy format or electronic format, each report
prepared pursuant to Section 3.09(e).
(e) The Trustee shall promptly deliver to each Rating
Agency (in hard copy format or through use of the Trustee's Internet Website for
[Moody's]) a copy of each Statement to Certificateholders, Unrestricted Servicer
Report and Restricted Servicer Report forwarded to the Holders
-245-
of the Certificates (in each case, at or about the same time that it delivers
such Certificateholder Report to such Holders), subject to the timing
requirements of Section 4.02(d). Any Restricted Servicer Reports delivered
electronically as aforesaid shall be accessible on the Trustee's Internet
Website on a restricted basis to each Rating Agency.
(f) The parties intend that each Rating Agency provide to
the Trustee, upon request, a listing of the then-current rating (if any)
assigned by such Rating Agency to each Class of Certificates then outstanding.
SECTION 11.10. Notices to Controlling Class Representative.
The Trustee, the Master Servicer or the Special Servicer, as
the case may be, shall deliver to the Controlling Class Representative a copy of
each notice or other item of information such Person is required to deliver to
the Rating Agencies pursuant to Section 11.09, in each case simultaneously with
the delivery thereof to the Rating Agencies and to the extent not already
delivered thereto pursuant to this Agreement.
SECTION 11.11. Complete Agreement.
This Agreement embodies the complete agreement among the
parties and may not be varied or terminated except by a written agreement
conforming to the provisions of Section 11.01. All prior negotiations or
representations of the parties are merged into this Agreement and shall have no
force or effect unless expressly stated herein.
-246-
ARTICLE XII
SERVICING OF THE [OTHER CMBS SERIES-SERVICED MORTGAGE LOAN] LOAN GROUP
FOLLOWING A [OTHER CMBS SERIES-SERVICED MORTGAGE LOAN] CHANGE OF
SERVICING CONTROL EVENT
SECTION 12.01. General.
(a) The terms of this Article XII shall apply only if and
when a [Separately Serviced Mortgage Loan] Change of Servicing Control Event
shall occur, and shall remain in effect only for so long as the [Separately
Serviced Mortgage Loan] or any interest in any [Separately Serviced Mortgage
Loan] REO Property remains an asset of the Trust.
(b) If and when a [Separately Serviced Mortgage Loan]
Change of Servicing Control Event shall occur, each of the Master Servicer and
the Special Servicer shall diligently service and administer the [Separately
Serviced Mortgage Loan] Loan Group (and, with respect to the Special Servicer,
any [Separately Serviced Mortgage Loan] REO Property) as and when it is required
to do so, pursuant to this Article XII on behalf of the Trustee and in the best
interests of and for the benefit of the Certificateholders and the holders of
the [Separately Serviced Mortgage Loan] Companion Loans, taken as a collective
whole (as determined by the Master Servicer or the Special Servicer, as the case
may be, in its reasonable judgment), in accordance with applicable law, the
terms of the [Separately Serviced Mortgage Loan] Loan Group, the terms of the
[Separately Serviced Mortgage Loan] Intercreditor Agreements and, to the extent
consistent with the foregoing, the [Other CMBS Series] Servicing Standard.
Without limiting the foregoing, subject to Section 12.14 hereunder, the Special
Servicer shall be obligated to service and administer the [Separately Serviced
Mortgage Loan] Loan Group while a [Other CMBS Series] Servicing Transfer Event
has occurred and is continuing with respect thereto and to service and
administer any [Separately Serviced Mortgage Loan] REO Property; provided that
the Master Servicer shall continue to make all calculations, and prepare, and
deliver to the Trustee, all reports required to be prepared by the Master
Servicer hereunder with respect to the [Separately Serviced Mortgage Loan] as if
no [Other CMBS Series] Servicing Transfer Event had occurred with respect
thereto or as if the [Separately Serviced Mortgage Loan] Mortgaged Property had
not become an REO Property, as the case may be, and to render such incidental
services with respect to the [Separately Serviced Mortgage Loan] Loan Group
while any [Other CMBS Series] Servicing Transfer Event exists with respect
thereto or while the [Separately Serviced Mortgage Loan] Mortgaged Property
constitutes an REO Property, as the case may be. Also without limiting the
foregoing, the Master Servicer shall be obligated to service and administer the
[Separately Serviced Mortgage Loan] Loan Group prior to the occurrence of the
[Other CMBS Series] Servicing Transfer Event and after all [Other CMBS Series]
Transfer Events have ceased to exist, in either case with respect to the
[Separately Serviced Mortgage Loan] Loan Group. In connection with the
foregoing, the Master Servicer and the Special Servicer shall have all right,
power and authority granted to, and all duties and obligations imposed upon, the
[Other CMBS Series] Master Servicer and the [Other CMBS Series] Special
Servicer, respectively, pursuant to Section ______ and Section ______ of the
[Other CMBS Series PSA], except that all references in such sections of the
[Other CMBS Series PSA] to "Certificateholders" and "Trustee" shall be deemed to
mean the "Certificateholders" and "Trustee", respectively, hereunder.
-247-
(c) Whenever the Master Servicer or the Special Servicer
is required to act under this Article XII in accordance with the [Other CMBS
Series] Servicing Standard, such standard shall be applied with the following
changes:
(i) the reference to "Certificateholders" in
clause (ii) of the first paragraph of Section 3.01(a) of the [Other
CMBS Series PSA] shall be deemed a reference to the holder of the
[Separately Serviced Mortgage Loan] Pari Passu Companion Loan; and
(ii) the reference to "Certificate" in subclause
(iii)(b) of the first paragraph of Section 3.01(a) of the [Other CMBS
Series PSA] shall be deemed a reference to any ownership interest in
the [Separately Serviced Mortgage Loan] or in either of the [Separately
Serviced Mortgage Loan] Companion Loans.
In addition, even when the Master Servicer or the Special
Servicer is required to act under this Article XII with respect to the
[Separately Serviced Mortgage Loan] Loan Group as if it constituted Serviced
Mortgage Loans or any [Separately Serviced Mortgage Loan] REO Property as if it
constituted an Administered REO Property, the [Other CMBS Series] Servicing
Standard (with the foregoing changes) will apply rather than the Servicing
Standard hereunder.
(d) The Controlling Class Representative shall, subject
to Section 3.24(b) hereunder, be entitled to exercise all rights and powers that
would otherwise be exercisable by the [Other CMBS Series] Directing
Certificateholder in connection with the matters contemplated by this Article
XII. To the extent that the Master Servicer or the Special Servicer would have
any obligation to notify, seek direction or approval from, obtain the consent of
or otherwise interact with the [Other CMBS Series] Directing Certificateholder
in accordance with this Article XII, it shall, subject to Section 3.24(b)
hereunder, instead notify, seek direction or approval from, obtain the consent
of or otherwise interact with the Controlling Class Representative. The
Controlling Class Representative shall be entitled to receive from each of the
Master Servicer and the Special Servicer all reports, statements, documents,
certifications, information and communications with respect to the [Separately
Serviced Mortgage Loan] Loan Group that would otherwise have been delivered to
the __________ Directing Certificateholder by the [Other CMBS Series] Master
Servicer and the [Other CMBS Series] Special Servicer, respectively, under the
[Other CMBS Series PSA].
(e) To the extent that the Master Servicer or the Special
Servicer would have any obligation to notify, seek a ratings confirmation from
or otherwise interact with the [Other CMBS Series] Rating Agencies in accordance
with this Article XII, it shall instead notify, seek a ratings confirmation from
or otherwise interact with the Rating Agencies, and any such ratings
confirmation shall relate to the ratings on the Certificates issued hereunder.
[Rating Agency No. 1] and [Rating Agency No. 2] shall continue to be entitled to
receive from each of the Master Servicer, the Special Servicer and the Trustee
all reports, statements, documents, certifications, information and
communications with respect to the [Separately Serviced Mortgage Loan] Loan
Group that it would otherwise have been entitled to receive from the [Other CMBS
Series] Master Servicer, the [Other CMBS Series] Special Servicer and the [Other
CMBS Series] Trustee, respectively, under the [Other CMBS Series PSA].
(f) Any Holder of a Class L, Class M, Class N, Class P,
Class Q, Class S or Class T Certificate shall be entitled to exercise all rights
and powers that would otherwise be exercisable by a [Other CMBS Series]
Requesting Subordinate Certificateholder in connection with the matters
-248-
contemplated by this Article XII. To the extent that the Master Servicer or the
Special Servicer would have any obligation to notify or otherwise interact with
the [Other CMBS Series] Requesting Subordinate Certificateholders in accordance
with this Article XII, it shall instead notify or otherwise interact with the
Holders of the Class L, Class M, Class N, Class P, Class Q, Class S or Class T
Certificates. The Holders of the Class L, Class M, Class N, Class P, Class Q,
Class S or Class T Certificates shall be entitled to receive from each of the
Master Servicer and the Special Servicer all reports, statements, documents,
certifications, information and communications with respect to the [Separately
Serviced Mortgage Loan] Loan Group that would otherwise have been delivered to
the [Other CMBS Series] Requesting Subordinate Certificateholders by the [Other
CMBS Series] Master Servicer and the [Other CMBS Series] Special Servicer,
respectively, under the [Other CMBS Series PSA].
SECTION 12.02. Collection of Loan Payments.
(a) The Master Servicer and the Special Servicer shall
perform all such duties and obligations and have all such right, power and
authority with respect to the [Separately Serviced Mortgage Loan] Loan Group as
did the [Other CMBS Series] Master Servicer and the [Other CMBS Series]Special
Servicer, respectively, pursuant to Section ______, Section ______ and the first
sentence of Section ______ of the [Other CMBS Series PSA].
(b) Amounts collected with respect to the [Separately
Serviced Mortgage Loan] Loan Group or any [Separately Serviced Mortgage Loan]
REO Property shall, subject to the [Separately Serviced Mortgage Loan]
Intercreditor Agreements, be applied as contemplated by Section _______ of the
[Other CMBS Series PSA].
SECTION 12.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts.
(a) The Master Servicer and the Special Servicer shall
perform all such duties and obligations and have all such right, power and
authority with respect to the [Separately Serviced Mortgage Loan] Loan Group and
any [Separately Serviced Mortgage Loan] REO Property as did the [Other CMBS
Series] Master Servicer and the [Other CMBS Series] Special Servicer,
respectively, pursuant to Section ______ of the [Other CMBS Series PSA].
(b) The Trustee and any Fiscal Agent shall have the same
backup advancing obligation with respect to the [Separately Serviced Mortgage
Loan] Loan Group and any [Separately Serviced Mortgage Loan] REO Property as did
the [Other CMBS Series] Trustee and the [Other CMBS Series] Fiscal Agent
pursuant to Section ______ of the [Other CMBS Series PSA].
(c) Each of the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent shall be entitled to reimbursement of Advance
Interest in respect of any advance made by it in accordance with this Article
XII as if it had made such advance with respect to any Serviced Mortgage Loan or
Administered REO Property.
(d) For purposes of this Section 12.03, the reference to
"Certificateholders" in the penultimate paragraph of Section 3.03(c) shall be
deemed to be a reference to the holder of the [Separately Serviced Mortgage
Loan] Pari Passu Companion Loan and the reference to
-249-
"Certificateholders" in the last paragraph of Section ______ of the [Other CMBS
Series PSA] shall be deemed to be a reference to the Certificateholders
hereunder.
SECTION 12.04. [Separately Serviced Mortgage Loan] Custodial
Account.
(a) The Master Servicer shall establish and maintain, or
cause to be established and maintained, solely with respect to the [Separately
Serviced Mortgage Loan] Loan Group, an Eligible Account for purposes of holding
the same types of collections with respect to the [Separately Serviced Mortgage
Loan] Loan Group as were to be deposited into the [Other CMBS Series] Collection
Account and such Eligible Account shall constitute the "[Separately Serviced
Mortgage Loan] Custodial Account". The Master Servicer shall, solely with
respect to the [Separately Serviced Mortgage Loan] Loan Group, make deposits to
the [Separately Serviced Mortgage Loan] Custodial Account in the same manner and
at the same times as the [Other CMBS Series] Master Servicer would have made
such deposits to the [Other CMBS Series] Collection Account pursuant to Section
______ of the [Other CMBS Series PSA]. In connection with the foregoing, the
Master Servicer shall establish and maintain two subaccounts of the [Separately
Serviced Mortgage Loan] Custodial Account that are substantially similar to the
[Other CMBS Series] Companion Loan Custodial Account and the [Other CMBS Series]
A/B Loan Custodial Account, respectively. The Master Servicer shall deposit from
the [Other CMBS Series] Custodial Account into the subaccount thereof that is
substantially similar to the [Other CMBS Series] A/B Loan Custodial Account any
amounts described in Section ______ of the [Other CMBS Series PSA] that are
required to be paid to the holder of the [Separately Serviced Mortgage Loan]
Subordinate Companion Loan pursuant to the terms of the [Separately Serviced
Mortgage Loan] A/B Intercreditor Agreement, in each case on the same day as the
deposit thereof into the [Other CMBS Series] Custodial Account. The subaccount
of the [Separately Serviced Mortgage Loan] Custodial Account that is
substantially similar to the [Other CMBS Series] A/B Loan Custodial Account
shall be held in trust for the benefit of the holder of the [Separately Serviced
Mortgage Loan] Subordinate Companion Loan and shall not be part of any REMIC
created under this Agreement. The Master Servicer shall deposit from the
[Separately Serviced Mortgage Loan] Custodial Account into the subaccount
thereof that is substantially similar to the [Other CMBS Series] Companion Loan
Custodial Account any amounts described in Section ______ of the [Other CMBS
Series PSA] that are required to be paid to the holder of the [Separately
Serviced Mortgage Loan] Pari Passu Companion Loan pursuant to the terms of the
[Separately Serviced Mortgage Loan] A/A Intercreditor Agreement, in each case on
the same day as the deposit thereof into the [Other CMBS Series] Custodial
Account. The subaccount of the [Separately Serviced Mortgage Loan] Custodial
Account that is substantially similar to the [Other CMBS Series] Companion Loan
Custodial Account (i) shall be held in trust for the benefit of the holder of
the [Separately Serviced Mortgage Loan] Pari Passu Companion Loan, (ii) shall
not be part of any REMIC created under this Agreement, and (iii) for purposes of
this Agreement, except as otherwise specified in Section 12.04(b), shall be
administered such that all references to the holder of the "Companion Loan" with
respect to such account under the [Other CMBS Series PSA] shall be deemed to be
references to the holder of the [Separately Serviced Mortgage Loan] Pari Passu
Companion Loan.
(b) The Master Servicer may, from time to time, make
withdrawals from the [Separately Serviced Mortgage Loan] Custodial Account and
the various subaccounts thereof contemplated by Section 12.04(a) in respect of
the [Separately Serviced Mortgage Loan] Loan Group or any [Separately Serviced
Mortgage Loan] REO Property for the same purposes, in the same amounts and at
the same times as the [Other CMBS Series] Master Servicer would have been
permitted to make such withdrawals from the similar accounts/subaccounts
pursuant to Section ______ of the [Other
-250-
CMBS Series PSA]; provided that no withdrawals shall be made from the
[Separately Serviced Mortgage Loan] Custodial Account for purposes of making P&I
Advances; and provided, further, that any remittance that would otherwise be
required to be made to the holder of the [Separately Serviced Mortgage Loan]
shall be made through a transfer on the relevant date from the [Separately
Serviced Mortgage Loan] Custodial Account to the Collection Account; and
provided, further, that any other remittances that would have been made pursuant
to Section ______ of the [Other CMBS Series PSA] to the [Other CMBS Series]
Trustee as the holder of the [Separately Serviced Mortgage Loan] Pari Passu
Companion Loan shall instead be remitted from the subaccount of the [Separately
Serviced Mortgage Loan] Custodial Account that is substantially similar to the
[Other CMBS Series] Companion Loan Custodial Account to the holder of the
[Separately Serviced Mortgage Loan] Pari Passu Companion Loan pursuant to the
second proviso of Section _____ of the [Other CMBS Series PSA]; and provided,
further, that remittances to the holder of the [Separately Serviced Mortgage
Loan] Subordinate Companion Loan shall be made from the subaccount of the
[Separately Serviced Mortgage Loan] Custodial Account that is substantially
similar to the [Other CMBS Series] A/B Loan Custodial Account pursuant to the
first proviso of Section ______ of the [Other CMBS Series PSA]; and provided,
further, that any withdrawals that would have been made pursuant to Section
______ of the [Other CMBS Series PSA] to pay compensation and/or interest on
advances and/or to reimburse any costs or expenses incurred by a party to the
[Other CMBS Series PSA] shall instead be paid or reimbursed, as the case may be,
to the corresponding party under this Agreement. The Master Servicer shall
account for all withdrawals from the [Separately Serviced Mortgage Loan]
Custodial Account and the various subaccounts thereof contemplated by Section
12.04(a) in the same manner as the [Other CMBS Series] Master Servicer is
required to account for withdrawals from the similar accounts/subaccounts under
the [Other CMBS Series PSA].
SECTION 12.05. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer and the Special Servicer shall
perform all such duties and obligations and have all such right, power and
authority with respect to the [Separately Serviced Mortgage Loan] Loan Group and
any [Separately Serviced Mortgage Loan] REO Property as did the [Other CMBS
Series] Master Servicer and the [Other CMBS Series] Special Servicer,
respectively, pursuant to Sections ______, ______, ______, ______, ______,
______ and ______ of the [Other CMBS Series PSA] (taking into account that each
is now acting on behalf of the Trustee and the Certificateholders hereunder).
Any references to "Trustee", "Certificates" and/or "Certificateholders" in any
such sections of the [Other CMBS Series PSA] shall be deemed to be references to
the Trustee hereunder, the Certificates issued hereunder and the
Certificateholders hereunder, respectively.
(b) The obligations of the Master Servicer and the
Special Servicer to maintain errors and omissions insurance and fidelity bond
coverage pursuant to Section 3.07 hereunder shall, so long as this Article XII
is in effect, be required to be in an amount that is calculated assuming that
the [Separately Serviced Mortgage Loan] Loan Group constitutes Serviced Mortgage
Loans.
-251-
SECTION 12.06. Enforcement of Due-on-Sale and Due-on-
Encumbrance Clauses; Assumption Agreements;
Defeasance Provisions; Other Provisions.
The Master Servicer and the Special Servicer shall perform all
such duties and obligations and have all such right, power and authority with
respect to the [Other CMBS Series Service Loan] Loan Group as did the [Other
CMBS Series] Master Servicer and the [Other CMBS Series] Special Servicer,
respectively, pursuant to Section ______ of the [Other CMBS Series PSA] (taking
into account that each is now acting on behalf of the Trustee and the
Certificateholders hereunder). Any references to "Trustee" and "Certificates" in
such section of the [Other CMBS Series PSA] shall be deemed to be references to
the Trustee hereunder and the Certificates issued hereunder, respectively.
Furthermore, the references to "Trust REMIC" in Section ______ of the [Other
CMBS Series PSA] shall be deemed to be references to a REMIC Pool hereunder.
SECTION 12.07. Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer and the Special Servicer shall,
subject to Section ______ of the [Other CMBS Series PSA] and, further, subject
to Sections 3.09(b), 3.09(c) and 3.09(d) hereunder (applied as if the
[Separately Serviced Mortgage Loan] Loan Group constituted Serviced Mortgage
Loans), perform all such duties and obligations and have all such right, power
and authority with respect to the [Separately Serviced Mortgage Loan] Loan Group
and any [Separately Serviced Mortgage Loan] REO Property as did the [Other CMBS
Series] Master Servicer and the [Other CMBS Series] Special Servicer,
respectively, pursuant to Section ______ of the [Other CMBS Series PSA] (taking
into account that it is now acting on behalf of the Trustee and the
Certificateholders hereunder). Any references to "Certificateholders" in Section
______ of the [Other CMBS Series PSA] shall be deemed to be references to the
holder of the [Separately Serviced Mortgage Loan] Pari Passu Companion Loan.
(b) The Master Servicer and the Special Servicer shall
have the same respective rights, duties and obligations with respect to the
[Separately Serviced Mortgage Loan] Loan Group as they do with respect to the
Serviced Mortgage Loans under Sections 3.09(e), 3.09(f), 3.09(g) and 3.09(h)
hereunder.
SECTION 12.08. Mortgage Loan Documents.
The Master Servicer and the Special Servicer shall obtain from
the respective holders of the [Separately Serviced Mortgage Loan] and
the[Separately Serviced Mortgage Loan] Companion Loans such documentation as is
necessary to perform servicing and administration of the [Separately Serviced
Mortgage Loan] Loan Group. If and to the extent that the Trustee holds any loan
documents with respect to the [Separately Serviced Mortgage Loan] Loan Group,
and if the [Separately Serviced Mortgage Loan] Loan Group is being serviced
under this Article XII, then the Trustee is authorized to release any or all of
those loan documents to the Master Servicer and the Special Servicer under the
same circumstances as it would release such Mortgage Loan Documents to the
Master Servicer or the Special Servicer, as the case may be, with respect to a
Serviced Mortgage Loan.
SECTION 12.09. Servicing Compensation.
The Master Servicer and the Special Servicer shall be
entitled, for performing their respective servicing and administration duties
with respect to the [Separately Serviced Mortgage Loan]
-252-
Loan Group and any [Separately Serviced Mortgage Loan] REO Property, to the same
compensation as would the [Other CMBS Series] Master Servicer and the [Other
CMBS Series] Special Servicer pursuant to Section ______ of the [Other CMBS
Series PSA].
SECTION 12.10. Reports and Statements.
(a) The Master Servicer and the Special Servicer each
shall, with respect to the [Separately Serviced Mortgage Loan] Loan Group and
any [Separately Serviced Mortgage Loan] REO Property, prepare or obtain, as
applicable, and deliver to the Trustee, the holder of the [Separately Serviced
Mortgage Loan] Pari Passu Companion Loan and the holder of the [Separately
Serviced Mortgage Loan] Subordinate Companion Loan any and all reports,
statements, documentation and other information as are required to be delivered
by the [Other CMBS Series] Master Servicer and the [Other CMBS Series] Special
Servicer, respectively, to the holder of the [Separately Serviced Mortgage
Loan], the [Other CMBS Series] Trustee and the holder of the [Separately
Serviced Mortgage Loan] Subordinate Companion Loan, respectively, pursuant to
Section ______ of the [Other CMBS Series PSA].
(b) The Master Servicer and the Special Servicer each
shall, with respect to the [Separately Serviced Mortgage Loan] Loan Group and
any [Separately Serviced Mortgage Loan] REO Property, prepare or obtain, as
applicable, and deliver to each other any and all reports, statements,
documentation and other information as are required to be delivered by the
[Other CMBS Series] Master Servicer and the [Other CMBS Series] Special Servicer
to each other pursuant to Section ______ of the [Other CMBS Series PSA].
SECTION 12.11. Annual Statement as to Compliance; Reports by
Independent Public Accountants; Access to
Certain Information.
The Master Servicer and the Special Servicer shall, in
fulfilling their obligations pursuant to Sections 3.13, 3.14 and 3.15 hereunder,
take into account their respective obligations under this Article XII and treat
the [Separately Serviced Mortgage Loan] Loan Group as Serviced Mortgage Loans
and any [Separately Serviced Mortgage Loan] REO Property as an Administered REO
Property.
SECTION 12.12. [Separately Serviced Mortgage Loan] REO
Property.
If the [Separately Serviced Mortgage Loan] Mortgaged Property
becomes an REO Property, then the [Separately Serviced Mortgage Loan] REO
Property shall be serviced and administered under Section 3.16, Section 3.17,
Section 3.18(d), Section 3.18(e) and Section 3.18(f) hereunder as if it were an
Administered REO Property; except that (i) it is hereby acknowledged that such
REO Property and any related account in the nature of an REO Account would be
held on behalf of the Certificateholders and the respective holders of the
[Separately Serviced Mortgage Loan] Companion Loans, as their interests may
appear, (ii) the account contemplated by the immediately preceding clause (i)
shall not include any amounts in respect of any other REO Property and (iii) any
transfers from the account contemplated by clause (i) above that would in
accordance with Section 3.16 hereunder ordinarily be made to the Collection
Account shall instead be made to the [Separately Serviced Mortgage Loan]
Custodial Account.
-253-
SECTION 12.13. Modifications, Waivers, Amendments and
Consents; Inspections; Appraisals; Lock-Box
Accounts and Servicing Accounts; and Other
Additional Obligations.
The Master Servicer and the Special Servicer shall perform all
such duties and obligations and have all such right, power and authority with
respect to the [Separately Serviced Mortgage Loan] Loan Group as did the [Other
CMBS Series] Master Servicer and the [Other CMBS Series] Special Servicer,
respectively, pursuant to Section ______, Section ______, Section ______,
Section ______, Section ______ and Section ______ of the [Other CMBS Series PSA]
(taking into account that each is now acting on behalf of the Trustee and the
Certificateholders hereunder). Any references to "Trustee" and "Certificates" in
such sections of the [Other CMBS Series PSA] shall be deemed to be references to
the Trustee hereunder and the Certificates issued hereunder, respectively. In
addition, any references to "Certificate Owners of the Controlling Class" in
such sections of the [Other CMBS Series PSA] shall be deemed to be references to
the Controlling Class Representative hereunder. Furthermore, the references to
"Certificateholders" in Section ______ and Section ______ of the [Other CMBS
Series PSA] shall be deemed to be references to the holder of the [Separately
Serviced Mortgage Loan] Pari Passu Companion Loan.
SECTION 12.14. Transfer of Servicing Between Master Servicer
and Special Servicer; Record Keeping; Asset
Status Report.
The Master Servicer and the Special Servicer shall perform all
such duties and obligations, including the transfer of servicing, and have all
such right, power and authority with respect to the [Separately Serviced
Mortgage Loan] Loan Group as did the [Other CMBS Series] Master Servicer and the
[Other CMBS Series] Special Servicer, respectively, pursuant to Section ______
of the [Other CMBS Series PSA] (taking into account that each is now acting on
behalf of the Trustee and the Certificateholders hereunder); provided that,
consistent with Section 12.01(d) hereunder, all references to "Directing
Certificateholder" in Section ______ of the [Other CMBS Series PSA] shall be
deemed to be references to the Controlling Class Representative and any and all
rights of the holder of the [Separately Serviced Mortgage Loan] contemplated by
Section ______ of the [Other CMBS Series PSA] shall instead be exercised by the
holder of the [Separately Serviced Mortgage Loan] Pari Passu Companion Loan. Any
references to "Trustee", "Fiscal Agent", "Depositor" and "Certificateholders" in
Section ______ of the [Other CMBS Series PSA] shall be deemed to be references
to the Trustee, Fiscal Agent, Depositor and Certificateholders, respectively,
hereunder. In addition, any references to "Trust REMIC" in Section ______ of the
[Other CMBS Series PSA] shall be deemed to be references to a REMIC Pool
hereunder.
SECTION 12.15. Sub-Servicing.
Each of the Master Servicer and the Special Servicer may enter
into Sub-Servicing Agreements to provide for the performance by third parties of
any or all of its respective obligations under this Article XII to the same
extent, and subject to the same terms, conditions and limitations, as would be
applicable to entering into Sub-Servicing Agreements with respect to the
Serviced Mortgage Loans under Section 3.22 hereunder.
-254-
SECTION 12.16. Rights of the Holder of the [Separately
Serviced Mortgage Loan] Subordinate Companion
Loan.
The respective parties hereto recognize and acknowledge the
rights of the holder of the [Separately Serviced Mortgage Loan] Subordinate
Companion Loan provided for under the [Other CMBS Series PSA], including under
Section ______ thereof, and under the [Separately Serviced Mortgage Loan] A/B
Intercreditor Agreement. The Master Servicer and the Special Servicer shall
perform all such duties and obligations and have all such right, power and
authority with respect to the [Separately Serviced Mortgage Loan] Loan Group as
did the [Other CMBS Series] Master Servicer and the [Other CMBS Series] Special
Servicer, respectively, pursuant to Section ______ of the [Other CMBS Series
PSA].
SECTION 12.17. P&I Advances.
The Master Servicer shall have the same advancing obligations
with respect to the [Separately Serviced Mortgage Loan] Loan Group as did the
[Other CMBS Series] Master Servicer under Section ______ of the [Other CMBS
Series PSA].
SECTION 12.18. Limitation on Liability; Certain Indemnities.
Solely insofar as it relates to the matters contemplated by
this Article XII, Section ______ of the [Other CMBS Series PSA] is incorporated
herein by reference and made a part hereof; provided that capitalized terms that
are used therein and are defined in this Agreement shall have the respective
meanings assigned thereto in this Agreement; and provided, further, that the
terms "Companion Loan" and "B Note", as used therein, shall be deemed to mean
the [Separately Serviced Mortgage Loan] Pari Passu Companion Loan and the
[Separately Serviced Mortgage Loan] Subordinate Companion Loan, respectively.
Section 6.03 of this Agreement shall not be applicable to, and is replaced in
its entirety with respect to, the matters contemplated by this Article XII.
SECTION 12.19. Events of Default.
(a) If any Event of Default shall occur hereunder that
materially and adversely affects the rights and interests of the holder of the
[Separately Serviced Mortgage Loan] Pari Passu Companion Loan, then such holder
shall have the same rights (and be subject to the same constraints, including
the obtaining of any required rating confirmations) in respect of such Event of
Default as did the holder of the [Separately Serviced Mortgage Loan] upon the
occurrence of a [Other CMBS Series] Event of Default.
(b) If any Event of Default shall occur hereunder that
materially and adversely affects the rights and interests of the holder of the
[Separately Serviced Mortgage Loan] Subordinate Companion Loan, then such holder
shall have the same rights (and be subject to the same constraints, including
the obtaining of any required rating confirmations) in respect of such Event of
Default as it did upon the occurrence of a [Other CMBS Series] Event of Default.
(c) In the event that the Master Servicer or the Special
Servicer may be terminated under this Section 12.19, but is not otherwise
terminated under Article VII hereof, then such party shall be replaced solely as
to its duties and obligations, and its right, power and authority, with respect
to the [Separately Serviced Mortgage Loan] Loan Group and any [Separately
Serviced Mortgage Loan] REO
-255-
Property, and all references to "Master Servicer" or "Special Servicer" in this
Article XII shall be deemed to refer to its successor under this Article XII.
Articles I through XI hereof shall apply to such successor master servicer or
special servicer, as applicable, but only to the extent that they would if the
[Separately Serviced Mortgage Loan] Loan Group and/or any [Separately Serviced
Mortgage Loan] REO Property were the only asset being serviced and administered
hereunder and there were no Serviced Mortgage Loans or Administered REO
Properties. The Master Servicer or Special Servicer, as the case may be, that
was so replaced with respect to the [Separately Serviced Mortgage Loan] Loan
Group and/or any [Separately Serviced Mortgage Loan] REO Property shall continue
to have the same duties and obligations, and the same right, power and
authority, with respect to the Serviced Mortgage Loans and/or any Administered
REO Properties that it otherwise would without regard to this Article XII, and
Articles I through XI hereof shall apply to such replaced Master Servicer or
Special Servicer, as the case may be, as if this Article XII did not exist.
SECTION 12.20. Amendments to the [Other CMBS Series PSA].
All references to the [Other CMBS Series PSA] throughout this
Article XII are intended to be references to such agreement as in effect on the
Closing Date, with such amendments and modifications as either (i) have been
agreed to by the Trustee in accordance with Article XI hereof or (ii) do not
materially and adversely affect the interests of the holder of the [Separately
Serviced Mortgage Loan].
-256-
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.
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.,
as Depositor
By: _________________________________________
Name:
Title:
_________________________________,
as Master Servicer
By: _________________________________________
Name:
Title:
_________________________________,
as Special Servicer
By: _________________________________________
Name:
Title:
_________________________________
as Trustee
By: _________________________________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of ________ ____, before me, a notary public
in and for said State, personally appeared _____________________________,
personally known to me to be a _______________________________ of CITIGROUP
COMMERCIAL MORTGAGE SECURITIES INC., one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_________________________________________
Notary Public
[Notarial Seal]
STATE OF __________________)
) ss.:
COUNTY OF _________________)
On the ______ day of ________ ____, before me, a notary public
in and for said State, personally appeared _____________________________, known
to me to be a _______________________ of __________, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
__________________________________________
Notary Public
[Notarial Seal]
STATE OF __________________)
) ss.:
COUNTY OF _________________)
On the ______ day of ________ ____, before me, a notary public
in and for said State, personally appeared ____________________________, known
to me to be a ________________________ of __________, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_________________________________________
Notary Public
[Notarial Seal]
STATE OF __________________)
) ss.:
COUNTY OF _________________)
On the ______ day of ________ ____, before me, a notary public
in and for said State, personally appeared _____________________________, known
to me to be a _______________________ of __________, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
________________________________________
Notary Public
[Notarial Seal]
