EXHIBIT 4
EXECUTION COPY
Greenwich Capital Commercial Funding Corp.,
as Depositor
and
Wachovia Bank, National Association,
as Master Servicer
and
Lennar Partners, Inc.,
as Special Servicer
and
LaSalle Bank National Association,
as Trustee
and
ABN AMRO Bank N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of May 13, 2004
---------------------
$2,627,155,095
Commercial Mortgage Trust 2004-GG1,
Commercial Mortgage Pass-Through Certificates,
Series 2004-GG1
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
Section 1.01 Defined Terms................................................
Section 1.02 General Interpretive Principles..............................
Section 1.03 Certain Adjustments to the Principal
Distributions on the Certificates...........................
Section 1.04 Certain Calculations Relating to REO Loans...................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Creation of Trust; Conveyance of Mortgage Loans
and Loan REMIC Interests....................................
Section 2.02 Acceptance of Trust Fund by Trustee..........................
Section 2.03 Repurchase of Mortgage Loans for Document Defects
and Breaches of Representations and Warranties..............
Section 2.04 Representations, Warranties and Covenants of the
Depositor...................................................
Section 2.05 Execution of Certificates; Issuance of
Uncertificated Lower-Tier Interests.........................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Loans..................................
Section 3.02 Collection of Loan Payments..................................
Section 3.03 Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.................
Section 3.04 Pool Custodial Account, Defeasance Deposit
Account, Distribution Account, Interest Reserve
Account and Excess Liquidation Proceeds Account.............
Section 3.04A Loan Group Custodial Account.................................
Section 3.05 Permitted Withdrawals From the Pool Custodial
Account, the Distribution Account, the Interest
Reserve Account and the Excess Liquidation
Proceeds Account............................................
Section 3.05A Permitted Withdrawals From the Loan Group
Custodial Account...........................................
Section 3.06 Investment of Funds in the Servicing Accounts,
the Reserve Accounts, the Defeasance Deposit
Account, the Custodial Accounts and the REO
Accounts....................................................
Section 3.07 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage; Environmental
Insurance...................................................
Section 3.08 Enforcement of Due-on-Sale and Due on Encumbrance
Provisions..................................................
Section 3.09 Realization Upon Defaulted Loans; Required
Appraisals; Appraisal Reduction Calculation.................
Section 3.10 Trustee and Custodian to Cooperate; Release of
Mortgage Files..............................................
Section 3.11 Servicing Compensation; Payment of Expenses..................
Section 3.12 Certain Matters Regarding Servicing Advances.................
Section 3.13 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.....................
Section 3.13A Delivery of Certain Reports to the Companion Loan
Noteholders.................................................
Section 3.13B Statements to the Companion Loan Noteholders.................
Section 3.14 Annual Statement as to Compliance............................
Section 3.15 Reports by Independent Public Accountants....................
Section 3.16 Access to Certain Information................................
Section 3.17 Title to REO Property; REO Accounts..........................
Section 3.18 Management of REO Property...................................
Section 3.19 Sale of Mortgage Loans and REO Properties....................
Section 3.20 Additional Obligations of the Master Servicer;
Obligations to Notify Ground Lessors; the
Special Servicer's Right to Request the Master
Servicer to Make Servicing Advances.........................
Section 3.21 Modifications, Waivers, Amendments and Consents;
Defeasance..................................................
Section 3.22 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping............................
Section 3.23 Sub-Servicing Agreements.....................................
Section 3.24 Representations and Warranties of the Master
Servicer....................................................
Section 3.25 Representations and Warranties of the Special
Servicer....................................................
Section 3.26 Certain Matters Regarding the Purchase of the
Loan Group Trust Mortgage Loans.............................
Section 3.27 Application of Default Charges...............................
Section 3.28 Limitations on and Authorizations of the Master
Servicer and Special Servicer with Respect to
Specific Mortgage Loans.....................................
Section 3.29 Additional Matters with respect to the Southland
Mall and Deerbrook Mall Mortgage Loans......................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Loan
Periodic Update File........................................
Section 4.03 P&I Advances.................................................
Xxxxxxx 0.00X X&X Advances on the Loan Group Trust Mortgage
Loans and 000 Xxxxxx Xxxxxx Pari Passu
Companion Loans.............................................
Section 4.04 Allocation of Realized Losses and Additional
Trust Fund Expenses.........................................
Section 4.05 Various Reinstatement Amounts................................
Section 4.06 Calculations.................................................
Section 4.07 Use of Agents................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of
Certificates................................................
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
DIRECTING HOLDER
Section 6.01 Liability of Depositor, Master Servicer and
Special Servicer............................................
Section 6.02 Continued Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion
of Depositor, Master Servicer or Special
Servicer....................................................
Section 6.03 Limitation on Liability of Depositor, Master
Servicer and Special Servicer...............................
Section 6.04 Resignation of Master Servicer and the Special
Servicer....................................................
Section 6.05 Rights of Depositor, Trustee and the Companion
Loan Noteholders in Respect of the Master
Servicer and the Special Servicer...........................
Section 6.06 Depositor, Master Servicer and Special Servicer
to Cooperate with Trustee...................................
Section 6.07 Depositor, Special Servicer and Trustee to
Cooperate with Master Servicer..............................
Section 6.08 Depositor, Master Servicer and Trustee to
Cooperate with Special Servicer.............................
Section 6.09 Termination and Designation of Special Servicer
by the Directing Holder.....................................
Section 6.10 Master Servicer or Special Servicer as Owner of a
Certificate.................................................
Section 6.11 Certain Powers of the Directing Holder.......................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Additional Remedies of Trustee Upon Event of
Default.....................................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee............................................
Section 8.02 Certain Matters Affecting Trustee............................
Section 8.03 Trustee and Fiscal Agent Not Liable for Validity
or Sufficiency of Certificates or Loans.....................
Section 8.04 Trustee and Fiscal Agent May Own Certificates................
Section 8.05 Fees and Expenses of Trustee; Indemnification of
and by Trustee..............................................
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of Trustee...........................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of Trustee and Fiscal
Agent.......................................................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Appointment of Authenticating Agents.........................
Section 8.13 Appointment of Tax Administrators............................
Section 8.14 Access to Certain Information................................
Section 8.15 Reports to the Securities and Exchange Commission
and Related Reports.........................................
Section 8.16 Representations and Warranties of Trustee....................
Section 8.17 The Fiscal Agent.............................................
Section 8.18 Representations and Warranties of Fiscal Agent...............
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration.........................................
Section 10.02 Grantor Trust Administration.................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................
Section 11.02 Recordation of Agreement; Counterparts.......................
Section 11.03 Limitation on Rights of Certificateholders and
the Companion Loan Noteholders..............................
Section 11.04 Governing Law; Consent to Jurisdiction.......................
Section 11.05 Notices......................................................
Section 11.06 Severability of Provisions...................................
Section 11.07 Grant of a Security Interest.................................
Section 11.08 Xxxxxx Act...................................................
Section 11.09 Successors and Assigns; Beneficiaries........................
Section 11.10 Article and Section Headings.................................
Section 11.11 Notices to Rating Agencies...................................
Section 11.12 Global Opinions..............................................
Section 11.13 Complete Agreement...........................................
SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
I Mortgage Loan Schedule
II Schedule of Exceptions to Mortgage File Delivery
III Environmentally Insured Mortgage Loans
IV Class XP Reference Rate Schedule
V Schedule of Initial Directing Holder For Each Loan Group
VI Supplemental Servicer Schedule
Exhibit No. Exhibit Description
A-1 Form of Class [A-1] [A-2] [A-3] [A-4] [A-5] Certificate
A-2 Form of Class [XP] [XC] Certificate
A-3 Form of Class [A-6] [A-7] [B] [C] [D] [E] Certificate
A-4 Form of Class [F] [G] [H] [OEA-B1] [OEA-B2] Certificate
A-5 Form of Class [J] [K] [L] [M] [N] [O] [P] Certificate
A-6 Form of Class [R-I] [R-II] Certificate
B Form of Distribution Date Statement
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E Form of Loan Payoff Notification Report
F-1 Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
F-2A Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C Form of Transferee Certificate for Transfers of Interests in
Rule 144A Global Certificates
F-2D Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
G Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
H-1 Form of Transfer Affidavit and Agreement regarding Residual
Interest Certificates
H-2 Form of Transferor Certificate regarding Residual Interest
Certificates
I-1 Form of Notice and Acknowledgment
I-2 Form of Acknowledgment of Proposed Special Servicer
J Reserved
K Sub-Servicers in respect of which Sub-Servicing Agreements are
in effect or being negotiated as of the Closing Date
L Form of Defeasance Certification
M Form of Backup Certification to be provided to the Depositor
N Form of Confidentiality Agreement
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of May 13, 2004, among GREENWICH CAPITAL COMMERCIAL FUNDING CORP.,
as Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer, LENNAR
PARTNERS, INC., as Special Servicer, LASALLE BANK NATIONAL ASSOCIATION, as
Trustee, and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be
issued hereunder in multiple Classes and which in the aggregate will evidence
the entire beneficial ownership interest in the Trust Fund.
CERTIFICATES
Approx. Original Class
Initial Principal Balance Original Rating
Class Pass-Through Rate (or Notional Amount) S&P/Fitch
Designation (per annum) at Initial Issuance Ratings/Xxxxx'x(1)
------------------- --------------------- --------------------- ---------------------
Class A-1 1.785% $23,421,000 AAA/AAA/Aaa
Class A-2 3.835% $150,541,000 AAA/AAA/Aaa
Class A-3 4.344% $274,000,000 AAA/AAA/Aaa
Class A-4 4.755% $296,000,000 AAA/AAA/Aaa
Class A-5 4.883% $381,830,000 AAA/AAA/Aaa
Class A-6 5.135% $100,000,000 AAA/AAA/Aaa
Class A-7 5.317% $1,005,555,000 AAA/AAA/Aaa
Class B 5.426% $61,802,000 AA/AA/Aa2
Class C 5.466% $26,021,000 AA-/AA-/Aa3
Class D 5.4783% $52,043,000 A/A/A2
Class E 5.5573% $32,527,000 A-/A-/A3
Class F 5.6623% $32,527,000 BBB+/BBB+/Baa1
Class G 5.6623% $26,022,000 BBB/BBB/Baa2
Class H 5.6623% $39,032,000 BBB-/BBB-/Baa3
Class J 5.450% $6,505,000 BB+/BB+/Ba1
Class K 5.450% $13,011,000 BB/BB/Ba2
Class L 5.450% $13,011,000 BB-/BB-/Ba3
Class M 5.450% $9,758,000 B+/B+/B1
Class N 5.450% $9,758,000 B/B2
Class O 5.450% $6,506,000 B-/B-/B3
Class P 5.450% $42,285,095 NR/NR/NR
Class XP 0.553% $2,460,098,000(3) AAA/AAA/Aaa
Class XC 0.148% $2,602,155,095(3) AAA/AAA/Aaa
Class OEA-B1 6.643% $10,500,000 BBB-/BBB-/NR
Class OEA-B2 6.643% $14,500,000 BB+/BBB-/NR
Class R-I N/A(4) N/A(4) NR/NR/NR
Class R-II N/A(4) N/A(4) NR/NR/NR
-------------
(1) "NR" indicates that the Class of Certificates has not been rated by the
applicable Rating Agency.
(2) The Pass-Through Rates for the Class XP and Class XC Certificates will be
a variable rate per annum as set forth herein.
(3) The Class XP and Class XC Certificates will not have a Class Principal
Balance and will not entitle their Holders to receive distributions of
principal. The Class XP and Class XC Certificates will have a Notional
Amount as set forth herein.
(4) The Class R-I Certificates and Class R-II Certificates do not have a Class
Principal Balance or Notional Amount, do not bear interest and will not be
entitled to distributions of Net Prepayment Consideration. Any Available
Distribution Amount remaining in the Lower-Tier Distribution Account after
distributing the Lower-Tier Distribution Amount and Net Prepayment
Consideration shall be distributed to the Holders of the Class R-I
Certificates (but only to the extent of the Available Distribution Amount
for such Distribution Date, if any, remaining in the Lower-Tier
Distribution Account). Any Available Distribution Amount remaining in the
Upper-Tier Distribution Account and the Class OEA-B Sub-Account, after all
required distributions under this Agreement have been made to each other
Class of Certificates, will be distributed to the Holders of the Class
R-II Certificates.
As provided herein, the Trustee will elect or will cause an election
to be made to treat the DDR Portfolio Trust Loan, Xerox Headquarters Mortgage
Loan and 1801 K Street Trust Loan (each, a "Loan REMIC Loan") (and certain other
related assets) as three separate REMICs (each, a "Loan REMIC") pursuant to the
REMIC Declaration dated March 11, 2004, the REMIC Declaration dated January 10,
2004 and the REMIC Declaration dated January 1, 2004, respectively (each, a
"Loan REMIC Declaration"). Each Loan REMIC has issued one uncertificated Class
of regular interests (the "Loan REMIC Regular Interest") to be held by the
Lower-Tier REMIC and one uncertificated Class of residual interest (the "Loan
REMIC Residual Interest"), which will be represented by the Class R-I
Certificates. As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the Mortgage Loans (other than the Loan
REMIC Loans), the Loan REMIC Regular Interests and certain other related assets
subject to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as the "Lower-Tier REMIC." The
Class R-I Certificates will represent the sole class of "residual interests" in
the Lower-Tier REMIC and each Loan REMIC Residual Interest for purposes of the
REMIC Provisions under federal income tax law.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Uncertificated Lower-Tier Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as the "Upper-Tier REMIC." The Class R-II Certificates will evidence
the sole class of "residual interests" in the Upper-Tier REMIC for purposes of
the REMIC Provisions under federal income tax law. For federal income tax
purposes, each Class of the Regular Interest Certificates will be designated as
a separate "regular interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions under federal income tax law.
The portion of the Trust Fund consisting of the Loan REMIC Residual
Interests, the proceeds thereof and the Grantor Trust Sub-Accounts will be
treated as a grantor trust (the "Grantor Trust") for federal income tax
purposes. The Class R-I Certificates will represent the sole interests in the
Grantor Trust for federal income tax purposes and pro rata undivided beneficial
interests in the portion of the Trust Fund consisting of the Loan REMIC Residual
Interest.
The following table sets forth the Class or Component designation,
the corresponding Uncertificated Lower-Tier Interest (the "Corresponding
Uncertificated Lower-Tier Interest"), the corresponding components of the Class
X Certificates (the "Corresponding Components"), if any, and the Original Class
Principal Balance for each Class of Principal Balance Certificates (the
"Corresponding Certificates").
Corresponding
Uncertificated Corresponding
Corresponding Original Class Lower-Tier Original Lower-Tier Components of
Certificates Principal Balance Interests(1) Principal Amount Class X Certificates(1)
---------------------- --------------------- ------------------ --------------------- -------------------------
Class A-1 $23,421,000
LA-1 $23,421,000 X-A-1
Class A-2 $150,541,000
LA-2-1 $50,329,000 X-A-2-1
LA-2-2 $61,632,000 X-A-2-2
LA-2-3 $38,580,000 X-A-2-3
Class A-3 $274,000,000
LA-3-1 $22,514,000 X-A-3-1
LA-3-2 $60,455,000 X-A-3-2
LA-3-3 $59,235,000 X-A-3-3
LA-3-4 $94,355,000 X-A-3-4
LA-3-5 $37,441,000 X-A-3-5
Class A-4 $296,000,000
LA-4-1 $53,619,000 X-A-4-1
LA-4-2 $239,155,000 X-A-4-2
LA-4-3 $3,226,000 X-A-4-3
Class A-5 $381,830,000
LA-5-1 $42,793,000 X-A-5-1
LA-5-2 $103,954,000 X-A-5-2
LA-5-3 $131,748,000 X-A-5-3
LA-5-4 $103,335,000 X-A-5-4
Class A-6 $100,000,000
LA-6 $100,000,000 X-A-6
Class A-7 $1,005,555,000
LA-7-1 $93,984,000 X-A-7-1
LA-7-2 $911,571,000 X-A-7-2
Class B $61,802,000
LB $61,802,000 X-B
Class C $26,021,000
LC $26,021,000 X-C
Class D $52,043,000
LD-1 $11,595,000 X-D-1
LD-2 $14,148,000 X-D-2
LD-3 $26,300,000 X-D-3
Class E $32,527,000
LE-1 $10,490,000 X-E-1
LE-2 $17,348,000 X-E-2
LE-3 $4,689,000 X-E-3
Class F $32,527,000
LF-1 $4,608,000 X-F-1
LF-2 $20,371,000 X-F-2
LF-3 $7,548,000 X-F-3
Class G $26,022,000
LG-1 $8,603,000 X-G-1
LG-2 $17,419,000 X-G-2
Class H $39,032,000
LH-1 $248,000 X-H-1
LH-2 $24,166,000 X-H-2
LH-3 $14,618,000 X-H-3
Class J $6,505,000
LJ $6,505,000 X-J
Class K $13,011,000
LK $13,011,000 X-K
Class L $13,011,000
LL-1 $7,716,000 X-L-1
LL-2 $5,295,000 X-L-2
Class M $9,758,000
LM $9,758,000 X-M
Class N $9,758,000
LN $9,758,000 X-N
Class O $6,506,000
LO $6,506,000 X-O
Class P $42,285,095
LP $42,285,095 X-P
Class OEA-B1 $10,500,000
LOEA-B1 $10,500,000 N/A
Class OEA-B2 $14,500,000
LOEA-B2 $14,500,000 N/A
-------------
(1) The Uncertificated Lower-Tier Interest and the Components of the Class X
Certificates that correspond to any particular Class of Principal Balance
Certificates also correspond to each other and, accordingly, constitute
the "Corresponding Uncertificated Lower-Tier Interest" and the
"Corresponding Components," respectively, with respect to each other.
The initial Loan REMIC Balance and interest rate for each Loan REMIC
Regular Interest are set forth in the related Loan REMIC Declaration. The
Initial Trust Balance will be $2,627,155,095. The initial aggregate principal
balance of the Uncertificated Lower-Tier Interests will be $2,627,155,095.
There are fifteen Mortgage Loans included in the Trust Fund (as
identified in the table below) that are each part of a split loan structure, and
are each secured by the same Mortgage that also secures another mortgage loan or
loans in that split loan structure.
Each split loan structure, including all of the related notes that
are secured by the same Mortgage, is referred to herein as a "Loan Group." Each
Loan Group consists of (1) one or more "Loan Group Trust Mortgage Loans," which
is the portion of the Loan Group that is included as an asset of the Trust Fund
and (2) one or more "Companion Loans," which is the portion of the Loan Group
that is not included as an asset of the Trust Fund. Each Companion Loan may be
classified as either (1) a "Pari Passu Companion Loan," which is a Companion
Loan that is pari passu in right of payment with the related Loan Group Trust
Mortgage Loan in the same Loan Group or (2) a "Subordinate Companion Loan,"
which is a Companion Loan that is subordinate in right of payment to the related
Loan Group Trust Mortgage Loan in the same Loan Group. A Loan Group may contain
both Pari Passu Companion Loans and Subordinate Companion Loans. The term
"Mortgage Loan" as used in this Agreement will include the Loan Group Trust
Mortgage Loans.
The following table identifies the Loan Groups and their related
Loan Group Trust Mortgage Loans and Companion Loans:
Aggregate Non-Trust/
Non-Trust/ Non-Pooled Controlling
Non-Pooled Subordinate Non-Trust Pooling &
Pooled Mortgage Mortgage Note Pari Passu Servicing
Mortgage Loan Loan Balance Loan Balance Balance Loan Balance Agreement(10)
-------------------------------- ------------------ ---------------- -------------- --------------- --------------
111 Eighth Avenue............... $149,500,000 $350,500,000(1) $50,000,000(2) $300,500,000(3) 2004-GG1
660 Madison Avenue.............. $120,000,000 $5,000,000 $5,000,000 NA 2004-GG1
Xxxxx Fargo Tower............... $86,437,500(4) $163,562,500 NA $163,562,500(5) GCCFC C2
237 Park Avenue................. $67,333,333 $230,666,667 NA $230,666,667(6) GCCFC C2
Water Tower Place............... $55,969,605(7) $130,265,540 NA $130,265,540(8) GMACCM C3
Davies Pacific Center........... $48,977,343 $2,960,000 $2,960,000 NA 2004-GG1
DDR Portfolio................... $48,819,647 $97,639,294 NA $97,639,294(9) GMACCM C2
5 Houston Center................ $45,000,000 $45,000,000 NA $45,000,000 GMACCM C3
Sycamore Mineral Springs Resort. $14,838,278 $1,236,523 $1,236,523 NA 2004-GG1
510 Glenwood.................... $12,903,265 $806,000 $806,000 NA 2004-GG1
1801 K Street................... $12,371,875 $117,115,625 NA $117,115,625 GCCFC C2
Sunrise Mesa MHP................ $11,750,000 $750,000 $750,000 NA 2004-GG1
Mountain Lodge Apartments....... $10,176,455 $385,000 $385,000 NA 2004-GG1
Palisades I Office Building..... $9,130,000 $570,000 $570,000 NA 2004-GG1
Berryland Shopping Center....... $3,474,494 $225,000 $225,000 NA 2004-GG1
Initial Initial
Master Special
Mortgage Loan Servicer(11) Servicer(12)
-------------------------------- ------------ ------------
111 Eighth Avenue............... Wachovia Lennar
660 Madison Avenue.............. Wachovia Lennar
Xxxxx Fargo Tower............... Wachovia Lennar
237 Park Avenue................. Wachovia Lennar
Water Tower Place............... GMACCM Lennar
Davies Pacific Center........... Wachovia Lennar
DDR Portfolio................... GMACCM GMACCM
5 Houston Center................ GMACCM Lennar
Sycamore Mineral Springs Resort. Wachovia Lennar
510 Glenwood.................... Wachovia Lennar
1801 K Street................... Wachovia Lennar
Sunrise Mesa MHP................ Wachovia Lennar
Mountain Lodge Apartments....... Wachovia Lennar
Palisades I Office Building..... Wachovia Lennar
Berryland Shopping Center....... Wachovia Lennar
-------------
(1) This figure represents multiple Pari Passu Companion Loans in the
aggregate original principal amount of $300,500,000 and two subordinate
loans in the aggregate original principal amount of $50,000,000 that are
not part of the Mortgage Pool although, one of the subordinate loans, in
the original principal amount of $25,000,000, is an asset of the Trust,
and the interest in that subordinate loan is evidenced directly by the
Class OEA-B Certificates.
(2) Comprised of two separate Subordinate Companion Loans, one of which, in
the original principal amount of $25,000,000, is an asset of the trust and
evidenced directly by the Class OEA-B Certificates.
(3) Comprised of 6 separate Pari Passu Companion Loans.
(4) The Xxxxx Fargo Tower Trust Loan is evidenced by two separate pari passu
mortgage notes. The figures set forth above present this Mortgage Loan on
an aggregate basis.
(5) Comprised of 5 separate pari passu mortgage notes.
(6) Comprised of 3 separate pari passu mortgage notes.
(7) The Water Tower Place Trust Loan is comprised of two separate pari passu
mortgage notes.
(8) Comprised of 4 separate pari passu mortgage notes.
(9) Comprised of 2 separate pari passu mortgage notes.
(10) 2004-GG1 refers to this Agreement. GCCFC C2 refers to the pooling and
servicing agreement entered into in connection with the Greenwich Capital
Commercial Funding Corp., as depositor, Commercial Mortgage Pass-Through
Certificates, Series 2003-C2. GMACCM C3 refers to the pooling and
servicing agreement entered into in connection with the GMAC Commercial
Mortgage Securities Corp., as depositor, Commercial Mortgage Pass-Through
Certificates, Series 2003-C3. GMACCM C2 refers to the pooling and
servicing agreement entered into in connection with the GMAC Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2003-C2.
(11) Wachovia refers to Wachovia Bank, National Association and GMACCM refers
to GMAC Commercial Mortgage Corporation.
(12) Lennar refers to Lennar Partners, Inc. and GMACCM refers to GMAC
Commercial Mortgage Corporation.
000 Xxxxxx Xxxxxx. The Loan Group secured by a Mortgage on the
property known as 000 Xxxxxx Xxxxxx (the "111 Eighth Avenue Loan Group"),
consists of nine Loans:
o one Loan Group Trust Mortgage Loan in the outstanding
principal amount of $149,500,000 as of the date hereof (the
"111 Eighth Avenue Pooled Trust Loan");
o six Pari Passu Companion Loans in the aggregate outstanding
principal amount of $300,500,000 as of the date hereof (the
"111 Eighth Avenue Pari Passu Companion Loans," and, together
with the 000 Xxxxxx Xxxxxx Pooled Trust Loan, the "111 Eighth
Avenue Senior Loans");
o one Loan Group Trust Mortgage Loan in the outstanding
principal amount of $25,000,000 as of the date hereof (the
"111 Eighth Avenue Non-Pooled Trust Loan" and, together with
the 000 Xxxxxx Xxxxxx Pooled Trust Loan, the "111 Eighth
Avenue Trust Loans") that is subordinate in right of payment
to the 000 Xxxxxx Xxxxxx Senior Loans; and
o one Subordinate Companion Loan in the outstanding principal
amount of $25,000,000 as of the date hereof (the "111 Eighth
Avenue Subordinate Companion Loan" and, together with the 000
Xxxxxx Xxxxxx Non-Pooled Trust Loan, the "111 Eighth Avenue
Subordinate Loans").
000 Xxxxxxx Xxxxxx. The Loan Group secured by a Mortgage on the
property known as 000 Xxxxxxx Xxxxxx (the "660 Madison Avenue Loan Group"),
consists of two Loans:
o one Loan Group Trust Mortgage Loan in the outstanding
principal amount of $120,000,000 as of the date hereof (the
"660 Madison Avenue Trust Loan"); and
o one Subordinate Companion Loan in the outstanding principal
amount of $5,000,000 as of the date hereof (the "660 Madison
Avenue Subordinate Companion Loan").
Xxxxx Fargo Tower. The Loan Group secured by a Mortgage on the
property known as Xxxxx Fargo Tower (the "Xxxxx Fargo Tower Loan Group"),
consists of seven Loans:
o two Loan Group Trust Mortgage Loans in the aggregate
outstanding principal amount of $86,437,500 as of the date
hereof (the "Xxxxx Fargo Tower Trust Loan"); and
o five Pari Passu Companion Loans in the aggregate outstanding
principal amount of $163,562,500 as of the date hereof (the
"Xxxxx Fargo Tower Pari Passu Companion Loans").
000 Xxxx Xxxxxx. The Loan Group secured by a Mortgage on the
property known as 000 Xxxx Xxxxxx (the "237 Park Avenue Loan Group"), consists
of four Loans:
o one Loan Group Trust Mortgage Loan in the outstanding
principal amount of $67,333,333 as of the date hereof (the
"237 Park Avenue Trust Loan"); and
o three separate Pari Passu Companion Loans in the aggregate
outstanding principal amount of $230,666,667 as of the date
hereof (the "237 Park Avenue Pari Passu Companion Loans").
Water Tower Place. The Loan Group secured by a Mortgage on the
property known as Water Tower Place (the "Water Tower Place Loan Group"),
consists of three Loans each evidenced by two notes:
o one Loan Group Trust Mortgage Loan, which is evidenced by two
notes, in the aggregate outstanding principal amount of
$55,969,605 as of the date hereof (the "Water Tower Place
Trust Loan"); and
o two Pari Passu Companion Loans, which are each evidenced by
two notes, in the aggregate outstanding principal amount of
$130,265,540 as of the date hereof (the "Water Tower Place
Pari Passu Companion Loans").
Davies Pacific Center. The Loan Group secured by a Mortgage on the
property known as Davies Pacific Center (the "Davies Pacific Center Loan
Group"), consists of two Loans:
o one Loan Group Trust Mortgage Loan in the outstanding
principal amount of $48,977,343 as of the date hereof (the
"Davies Pacific Center Trust Loan"); and
o one Subordinate Companion Loan in the outstanding principal
amount of $3,000,000 as of the date hereof (the "Davies
Pacific Center Subordinate Companion Loan").
DDR Portfolio. The Loan Group secured by a Mortgage on the property
known as DDR Portfolio (the "DDR Portfolio Loan Group"), consists of three
Loans:
o one Loan Group Trust Mortgage Loan in the aggregate
outstanding principal amount of $48,819,647 as of the date
hereof (the "DDR Portfolio Trust Loan"); and
o two Pari Passu Companion Loans in the aggregate outstanding
principal amount of $97,639,294 as of the date hereof (the
"DDR Portfolio Pari Passu Companion Loans").
5 Houston Center. The Loan Group secured by a Mortgage on the
property known as 5 Houston Center (the "5 Houston Center Loan Group"), consists
of two Loans:
o one Loan Group Trust Mortgage Loans in the aggregate
outstanding principal amount of $45,000,000 as of the date
hereof (the "5 Houston Center Trust Loan"); and
o one Pari Passu Companion Loan in the aggregate outstanding
principal amount of $45,000,000 as of the date hereof (the "5
Houston Center Pari Passu Companion Loan").
Sycamore Mineral Springs Resort. The Loan Group secured by a
Mortgage on the property known as Sycamore Mineral Springs Resort (the "Sycamore
Mineral Springs Resort Loan Group"), consists of two Loans:
o one Loan Group Trust Mortgage Loan in the outstanding
principal amount of $14,838,278 as of the date hereof (the
"Sycamore Mineral Springs Resort Trust Loan"); and
o one Subordinate Companion Loan in the outstanding principal
amount of $1,236,523 as of the date hereof (the "Sycamore
Mineral Springs Resort Subordinate Companion Loan").
000 Xxxxxxxx. The Loan Group secured by a Mortgage on the property
known as 510 Glenwood (the "510 Glenwood Loan Group"), consists of two Loans:
o one Loan Group Trust Mortgage Loan in the outstanding
principal amount of $12,903,265 as of the date hereof (the
"510 Glenwood Trust Loan"); and
o one Subordinate Companion Loan in the outstanding principal
amount of $806,000 as of the date hereof (the "510 Glenwood
Subordinate Companion Loan").
1801 K Street. The Loan Group secured by a Mortgage on the property
known as 1801 K Street (the "1801 K Street Loan Group"), consists of two Loans:
o one Loan Group Trust Mortgage Loan in the outstanding
principal amount of $12,371,875 as of the date hereof (the
"1801 K Street Trust Loan"); and
o one Pari Passu Companion Loan in the outstanding principal
amount of $117,115,625 as of the date hereof (the "1801 K
Street Pari Passu Companion Loan").
Sunrise Mesa MHP. The Loan Group secured by a Mortgage on the
property known as Sunrise Mesa MHP (the "Sunrise Mesa MHP Loan Group"), consists
of two Loans:
o one Loan Group Trust Mortgage Loan in the outstanding
principal amount of $11,750,000 as of the date hereof (the
"Sunrise Mesa MHP Trust Loan"); and
o one Subordinate Companion Loan in the outstanding principal
amount of $750,000 as of the date hereof (the "Sunrise Mesa
MHP Subordinate Companion Loan").
Mountain Lodge Apartments. The Loan Group secured by a Mortgage on
the property known as Mountain Lodge Apartments (the "Mountain Lodge Apartments
Loan Group"), consists of two Loans:
o one Loan Group Trust Mortgage Loan in the outstanding
principal amount of $10,176,455 as of the date hereof (the
"Mountain Lodge Apartments Trust Loan"); and
o one Subordinate Companion Loan in the outstanding principal
amount of $385,000 as of the date hereof (the "Mountain Lodge
Apartments Subordinate Companion Loan").
Palisades I Office Building. The Loan Group secured by a Mortgage on
the property known as Palisades I Office Building (the "Palisades I Office
Building Loan Group"), consists of two Loans:
o one Loan Group Trust Mortgage Loan in the outstanding
principal amount of $9,130,000 as of the date hereof (the
"Palisades I Office Building Trust Loan"); and
o one Subordinate Companion Loan in the outstanding principal
amount of $570,000 as of the date hereof (the "Palisades I
Office Building Subordinate Companion Loan").
Berryland Shopping Center. The Loan Group secured by a Mortgage on
the property known as Berryland Shopping Center (the "Berryland Shopping Center
Loan Group"), consists of two Loans:
o one Loan Group Trust Mortgage Loan in the outstanding
principal amount of $3,474,494 as of the date hereof (the
"Berryland Shopping Center Trust Loan"); and
o one Subordinate Companion Loan in the outstanding principal
amount of $225,000 as of the date hereof (the "Berryland
Shopping Center Subordinate Companion Loan").
The relative rights of each holder of a Loan Group Trust Mortgage
Loan and the related Companion Loans are set forth in a co-lender or other
similar agreement (each a "Co-Lender Agreement") among the holders of each of
the Loans in the Loan Group. Pursuant to each Co-Lender Agreement, the Loan
Groups are to be serviced and administered in accordance with this Agreement,
other than the Xxxxx Fargo Tower Loan Group, Water Tower Place Loan Group, 000
Xxxx Xxxxxx Loan Group, 5 Houston Center Loan Group, DDR Portfolio Loan Group,
and the 1801 K Street Loan Group (the "Non-Serviced Loan Groups"), by the Master
Servicer and the Special Servicer hereunder.
The Xxxxx Fargo Tower Loan Group, 000 Xxxx Xxxxxx Loan Group, and
1801 K Street Loan Group including the related Loan Group Trust Mortgage Loan,
will be serviced and administered in accordance with the pooling and servicing
agreement (the "GCCFC C2 PSA") dated December 23, 2003, by and among Greenwich
Capital Commercial Funding Corp., as depositor (the "GCCFC C2 Depositor"),
Wachovia Bank, National Association, as master servicer (the "GCCFC C2 Master
Servicer"), Lennar Partners, Inc., as special servicer (the "GCCFC C2 Special
Servicer"), LaSalle Bank National Association, as trustee (the "GCCFC C2
Trustee"), and ABN AMRO Bank N.V., as fiscal agent (the "GCCFC C2 Fiscal
Agent"), pursuant to which the Commercial Mortgage Pass Through Certificates,
Series 2003-C2 were issued. Pursuant to the terms of the GCCFC C2 PSA, the
"directing holder" thereunder with respect to the Xxxxx Fargo Tower Loan Group
will be the Controlling Class Directing Holder as defined in this Agreement.
The DDR Portfolio Loan Group, including the DDR Portfolio Trust
Loan, will be serviced and administered in accordance with the pooling and
servicing agreement (the "GMACCM C2 PSA") dated August 1, 2003, by and among
GMAC Commercial Mortgage Securities, Inc., as depositor (the "GMACCM C2
Depositor"), GMAC Commercial Mortgage Corporation, as master servicer (the
"GMACCM C2 Master Servicer"), GMAC Commercial Mortgage Corporation, as special
servicer (the "GMACCM C2 Special Servicer"), and Xxxxx Fargo Bank, N.A., as
trustee (the "GMACCM C2 Trustee"), pursuant to which the GMAC Commercial
Mortgage Securities Corp., Commercial Mortgage Pass Through Certificates, Series
2003-C2 were issued.
The Water Tower Place Loan Group and the 5 Houston Center Loan
Group, including the Water Tower Place Trust Loan and the 5 Houston Center Trust
Loan, will be serviced and administered in accordance with the pooling and
servicing agreement (the "GMACCM C3 PSA") dated December 1, 2003, by and among
GMAC Commercial Mortgage Securities, Inc., as depositor (the "GMACCM C3
Depositor"), GMAC Commercial Mortgage Corporation, as master servicer (the
"GMACCM C3 Master Servicer"), Lennar Partners, Inc., as special servicer (the
"GMACCM C3 Special Servicer"), LaSalle Bank National Association, as trustee
(the "GMACCM C3 Trustee"), Midland Loan Services, Inc. as Special Servicer of
the AFR/Bank of America Portfolio Whole Loan, and ABN AMRO Bank N.V., as fiscal
agent (the "GMACCM C3 Fiscal Agent"), pursuant to which the GMAC Commercial
Mortgage Securities Corp., Commercial Mortgage Pass Through Certificates, Series
2003-C3 were issued.
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent hereby agree, in each case, as follows:
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"111 Eighth Avenue Loan Group" shall have the meaning assigned
thereto in the Preliminary Statement.
"111 Eighth Avenue Non-Pooled Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"111 Eighth Avenue Pari Passu Companion Loans" shall have the
meaning assigned thereto in the Preliminary Statement.
"111 Eighth Avenue Pooled Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"111 Eighth Avenue Senior Loans" shall have the meaning assigned
thereto in the Preliminary Statement.
"111 Eighth Avenue Subordinate Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"111 Eighth Avenue Subordinate Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
"111 Eighth Avenue Trust Loans" shall have the meaning assigned
thereto in the Preliminary Statement.
"1801 K Street Loan Group" shall have the meaning assigned thereto
in the Preliminary Statement.
"1801 K Street Pari Passu Companion Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"1801 K Street Trust Loan" shall have the meaning assigned thereto
in the Preliminary Statement.
"237 Park Avenue Loan Group" shall have the meaning assigned thereto
in the Preliminary Statement.
"237 Park Avenue Pari Passu Companion Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
"237 Park Avenue Trust Loan" shall have the meaning assigned thereto
in the Preliminary Statement.
"30/360 Basis" shall mean the accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"5 Houston Center Loan Group" shall have the meaning assigned
thereto in the Preliminary Statement.
"5 Houston Center Pari Passu Companion Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
"5 Houston Center Trust Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"510 Glenwood Loan Group" shall have the meaning assigned thereto in
the Preliminary Statement.
"510 Glenwood Subordinate Companion Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"510 Glenwood Trust Loan" shall have the meaning assigned thereto in
the Preliminary Statement.
"660 Madison Avenue Loan Group" shall have the meaning assigned
thereto in the Preliminary Statement.
"660 Madison Avenue Subordinate Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"660 Madison Avenue Trust Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"ABN AMRO" shall mean ABN AMRO Bank N.V. or its
successor in interest.
"Acceptable Insurance Default" shall mean, with respect to any
Serviced Mortgage Loan, any default under the related Loan documents resulting
from (a) the exclusion of acts of terrorism from coverage under the related all
risk casualty insurance policy maintained on the subject Mortgaged Property and
(b) the related Mortgagor's failure to obtain insurance that specifically covers
acts of terrorism, but only if the Special Servicer has determined, in its
reasonable judgment, that (i) such insurance is not available at commercially
reasonable rates and the subject hazards are not commonly insured against by
prudent owners of similar real properties in similar locales (but only by
reference to such insurance that has been obtained by such owners at current
market rates), or (ii) such insurance is not available at any rate. Subject to
the Servicing Standard, in making any of the determinations required in
subclause (i) or (ii) of this definition, the Special Servicer shall be entitled
to rely on the opinion of an insurance consultant and information provided by
the Master Servicer.
"Accrued Certificate Interest" shall mean the interest accrued from
time to time with respect to any Class of Regular Interest Certificates, the
amount of which interest shall equal: (a) in the case of any Class of Principal
Balance Certificates for any Interest Accrual Period, one-twelfth of the product
of (i) the Pass-Through Rate applicable to such Class of Certificates for such
Interest Accrual Period, multiplied by (ii) the Class Principal Balance of such
Class of Certificates outstanding immediately prior to the related Distribution
Date; and (b) in the case of each Class of the Class X Certificates for any
Interest Accrual Period, the sum of the Accrued Component Interest for all of
the Components of such Class for such Distribution Date.
"Accrued Component Interest" shall mean, with respect to each
Component of the Class XP and Class XC Certificates for any Distribution Date,
one twelfth of the product of (i) the Class XP Strip Rate or Class XC Strip Rate
applicable to such Component for such Distribution Date, and (ii) the Component
Notional Amount of such Component outstanding immediately prior to such
Distribution Date.
"Acquisition Date" shall mean, with respect to any REO Property, the
first day on which such REO Property is considered to be acquired by the Trust
Fund within the meaning of Treasury Regulations Section 1.856-6(b)(1), which
shall be the first day on which the Trust Fund is treated as the owner of such
REO Property for federal income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on
the basis of the actual number of days elapsed during any interest accrual
period in a year assumed to consist of 360 days.
"Additional Designated Servicing Information" shall have the meaning
assigned thereto in Section 8.15(a).
"Additional Information" shall have the meaning assigned thereto in
Section 4.02(a).
"Additional Principal Distribution Amount" shall mean, with respect
to any Distribution Date, the aggregate of the Recovered Amounts included in,
and added to the Principal Distribution Amount for such Distribution Date for
purposes of calculating, the Adjusted Principal Distribution Amount for such
Distribution Date, pursuant to Section 1.03(c).
"Additional Trust Fund Expense" shall mean any expense incurred with
respect to the Trust Fund (excluding any Unliquidated Advance) and not otherwise
included in the calculation of a Realized Loss that would result in the Holders
of Regular Interest Certificates receiving less than the full amount of
principal and/or Distributable Certificate Interest to which they are entitled
on any Distribution Date.
"Adjusted Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to the Principal Distribution Amount for such
Distribution Date, plus all amounts added to such Principal Distribution Amount
pursuant to Section 1.03(c) for such Distribution Date, minus all amounts
subtracted from such Principal Distribution Amount pursuant to Section 1.03(b)
for such Distribution Date.
"Administrative Cost Rate" shall mean, with respect to each Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto), the rate per
annum specified as the "Administrative Cost Rate" on the Mortgage Loan Schedule,
which, for each such other Mortgage Loan (or successor REO Mortgage Loan) is
equal to the sum of the related Master Servicing Fee Rate, the Trustee Fee Rate
and, in the case of a Non-Serviced Trust Loan, the "servicing fee rate" payable
to the applicable Lead Master Servicer under the applicable Lead PSA.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event" shall have the meaning assigned
thereto in Section 10.02(e).
"Adverse Rating Event" shall mean, (i) when used with respect to any
Class of Certificates, as of any date of determination, the qualification,
downgrade or withdrawal of any rating then assigned to such Class of
Certificates by any Rating Agency and (ii) when used with respect to any
Companion Loan Securities, as of any date of determination the qualification,
downgrade or withdrawal of any rating then assigned by any Rating Agency to such
Companion Loan Securities (but only if such Companion Loan Securities were
issued in connection with the inclusion of a Serviced Pari Passu Companion Loan
into a trust as part of a securitization).
"Adverse REMIC Event" shall have the meaning assigned thereto in
Section 10.01(i).
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control," when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement,
together with all amendments hereof and supplements hereto.
"Annual Accountants' Report" shall have the meaning assigned thereto
in Section 3.15.
"Annual Performance Certification" shall have the meaning assigned
thereto in Section 3.14.
"Appraisal" shall mean an appraisal or update thereof prepared by an
Independent Appraiser.
"Appraisal Reduction Amount" shall mean, with respect to any
Required Appraisal Loan, an amount (calculated initially as of the Determination
Date immediately following the later of the date on which the subject Mortgage
Loan or Loan Group became a Required Appraisal Loan and the date on which the
applicable Required Appraisal was obtained) equal to the excess, if any, of: (a)
the sum of, without duplication, (i) the Stated Principal Balance of such
Required Appraisal Loan, (ii) to the extent not previously advanced by or on
behalf of the Master Servicer, the Trustee or the Fiscal Agent, all unpaid
interest on such Required Appraisal Loan through the most recent Due Date prior
to the date of calculation (exclusive of any portion thereof that represents
Default Interest), (iii) all accrued and unpaid Special Servicing Fees,
Liquidation Fees and Workout Fees in respect of such Required Appraisal Loan,
(iv) all related unreimbursed Advances (which shall include, without
duplication, (1) any Advances as to which the advancing party was reimbursed
from a source other than the related Mortgagor and (2) any Unliquidated
Advances) made by or on behalf of (plus all accrued interest on such Advances
payable to) the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent and/or any Other Backup Advancer with respect to such Required Appraisal
Loan, (v) any other unpaid Additional Trust Fund Expenses in respect of such
Required Appraisal Loan, and (vi) all currently due and unpaid real estate taxes
and assessments, insurance premiums and, if applicable, ground rents, and any
unfunded improvement or other applicable reserves, in respect of the related
Mortgaged Property or REO Property, as the case may be (in each case, net of any
amounts escrowed with the Master Servicer or the Special Servicer for such
items); over (b) the Required Appraisal Value. Notwithstanding the foregoing, if
(i) any Mortgage Loan or Loan Group becomes a Required Appraisal Loan, (ii)
either (A) no Required Appraisal or update thereof has been obtained or
conducted, as applicable, in accordance with Section 3.09(a), with respect to
the related Mortgaged Property during the 12-month period prior to the date such
Mortgage Loan or Loan Group became a Required Appraisal Loan or (B) there shall
have occurred since the date of the most recent Required Appraisal or update
thereof a material change in the circumstances surrounding the related Mortgaged
Property that would, in the Special Servicer's reasonable judgment, materially
affect the value of the related Mortgaged Property, and (iii) no new Required
Appraisal is obtained or conducted, as applicable, in accordance with Section
3.09(a), within 60 days after such Mortgage Loan or Loan Group became a Required
Appraisal Loan, then (x) until such new Required Appraisal is obtained or
conducted, as applicable, in accordance with Section 3.09(a), the Appraisal
Reduction Amount shall equal 25% of the Stated Principal Balance of such
Required Appraisal Loan, and (y) upon receipt or performance, as applicable, in
accordance with Section 3.09(a), of such Required Appraisal or update thereof by
the Special Servicer, the Appraisal Reduction Amount for such Required Appraisal
Loan shall be recalculated in accordance with the preceding sentence of this
definition. For purposes of this definition, each Required Appraisal Loan that
is part of a Cross-Collateralized Group shall be treated separately for the
purposes of calculating any Appraisal Reduction Amount.
Notwithstanding the foregoing, Appraisal Reduction Amount shall
mean, with respect to a Non-Serviced Trust Loan, the amount calculated by the
applicable Lead Special Servicer or Lead Master Servicer, as applicable, in
accordance with and pursuant to the terms of the related Lead PSA.
"Appraised Value" shall mean, with respect to each Mortgaged
Property or REO Property, the appraised value thereof based upon the most recent
appraisal or update thereof prepared by an Independent Appraiser that is
contained in the related Servicing File or, in the case of any such property
with or that had, as the case may be, an allocated loan amount of, or securing a
Loan or relating to an REO Loan, as the case may be, with a Stated Principal
Balance of, less than $2,000,000, either (a) the most recent appraisal or update
thereof that is contained in the related Servicing File or (b) the most recent
"desktop" value estimate performed by the Special Servicer that is contained in
the related Servicing File or with respect to any Non-Serviced Trust Loan, the
appraisal value as calculated pursuant to the Lead PSA.
"Assignment of Leases" shall mean, with respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the Mortgagor in connection with the origination of the
related Loan.
"Assumed Monthly Payment" shall mean: (a) with respect to any
Balloon Mortgage Loan (or Serviced Companion Loans) delinquent in respect of its
Balloon Payment, for each Due Date coinciding with or following its Stated
Maturity Date as of which such Mortgage Loan remains outstanding and part of the
Trust Fund, or, in the case of the Serviced Companion Loans, the related
Mortgage Loans remain part of the Trust Fund (provided that such Loan was not
paid in full, and no other Liquidation Event occurred in respect thereof, before
the end of the Collection Period in which the related Stated Maturity Date
occurs), the scheduled monthly payment of principal and/or interest deemed to be
due in respect of such Loan on such Due Date equal to the amount that would have
been due in respect thereof on such Due Date if such Loan had been required to
continue to accrue interest (other than Default Interest) in accordance with its
terms, and to pay principal in accordance with the amortization schedule (if
any) in effect immediately prior to, and without regard to the occurrence of,
the related Stated Maturity Date; (b) with respect to any REO Loan, for any Due
Date as of which the related REO Property remains part of the Trust Fund, or the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Monthly Payment (or, in the case
of a Balloon Loan described in clause (a) of this definition, the Assumed
Monthly Payment) that was due (or deemed due) in respect of the related Loan on
the last Due Date prior to its becoming an REO Loan.
"ASTM" shall mean the American Society for Testing and Materials.
"Authenticating Agent" shall mean any authenticating agent appointed
pursuant to Section 8.12 (or, in the absence of any such appointment, the
Trustee).
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to: (a) the sum, without duplication, of the
following amounts (i) the aggregate amount of all payments and other collections
on or with respect to the Mortgage Loans and any REO Properties (excluding any
such amounts that relate to the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan, but
including, with respect to the Non-Serviced Trust Loans, payment remitted by, or
advances made by, the applicable Lead Master Servicer) that (A) were Received as
of the end of the related Collection Period (or, in the case of the Non-Serviced
Trust Loans, as of 12:00 noon (New York City time) on the Master Servicer
Remittance Date) and (B) are on deposit in the Distribution Account as of 12:00
noon (New York City time) on such Distribution Date, (ii) the aggregate amount
of any P&I Advances made by the Master Servicer, the Trustee or the Fiscal Agent
for distribution on the Certificates on such Distribution Date pursuant to
Section 4.03 and Section 4.03A, (iii) the aggregate amount deposited by the
Master Servicer in the Distribution Account for such Distribution Date pursuant
to Section 3.20(a) in connection with Prepayment Interest Shortfalls, (iv) to
the extent not included in clause (a)(i) of this definition, the aggregate
amount transferred from the Excess Liquidation Proceeds Account to the
Distribution Account pursuant to Section 3.05(d) in respect of such Distribution
Date and (v) to the extent not included in the amount described in clause (a)(i)
of this definition, if such Distribution Date occurs during March 2005 or any
year thereafter, the aggregate of the Interest Reserve Amounts transferred from
the Interest Reserve Account to the Distribution Account in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans for
distribution on such Distribution Date; net of (b) the portion of the aggregate
amount described in clause (a) of this definition that represents one or more of
the following: (i) Monthly Payments that are due on a Due Date following the end
of the related Collection Period, (ii) any amounts payable or reimbursable to
any Person from the Distribution Account pursuant to clauses (ii) through (vii)
of Section 3.05(b), (iii) Prepayment Premiums and/or Yield Maintenance Charges,
(iv) if such Distribution Date occurs during January of any year that is not a
leap year or during February of any year, the Interest Reserve Amounts with
respect to the Interest Reserve Mortgage Loans and any Interest Reserve REO
Mortgage Loans to be withdrawn from the Distribution Account and deposited into
the Interest Reserve Account in respect of such Distribution Date and held for
future distribution, all pursuant to Section 3.04(c), and (v) amounts deposited
in the Distribution Account in error; provided that clauses (b)(i), (b)(iii) and
(b)(iv) of this definition shall not apply on the Final Distribution Date.
"Available OEA-B Distribution Amount" shall mean, with respect to
any Distribution Date, an amount equal to: (a) the sum, without duplication, of
the following amounts (i) the aggregate amount of all payments and other
collections on or with respect to the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan
and any REO Property with respect to the 000 Xxxxxx Xxxxxx Loan Group allocable
to the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan that (A) were Received as of the
end of the related Collection Period and (B) are on deposit in the Class OEA-B
Sub-Account as of 12:00 noon (New York City time) on such Distribution Date and
(ii) the aggregate amount deposited by the Master Servicer in the Class OEA-B
Sub-Account for such Distribution Date pursuant to Section 3.20(a) in connection
with Prepayment Interest Shortfalls net of (b) the portion of the aggregate
amount described in clause (a) of this definition that represents one or more of
the following: (i) Monthly Payments that are due on a Due Date following the end
of the related Collection Period (unless such Distribution Date is the Final
Distribution Date), (ii) any amount payable or reimbursable to any Person from
the Pool Custodial Account pursuant to clauses (ii) through (xviii) of Section
3.05(a), and (iii) any amounts deposited in the Class OEA-B Sub-Account in
error.
"Balloon Loan" shall mean any Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Stated Maturity Date and as to which,
in accordance with such terms, the payment due on its Stated Maturity Date is
significantly larger than the Monthly Payment due on the Due Date preceding its
Stated Maturity Date.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that is a
Balloon Loan.
"Balloon Payment" shall mean, with respect to any Balloon Loan as of
any date of determination, the payment, other than any regularly scheduled
monthly payment, due with respect to such Loan at maturity.
"Berryland Shopping Center Loan Group" shall have the meaning
assigned thereto in the Preliminary Statement.
"Berryland Shopping Center Subordinate Companion Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
"Berryland Shopping Center Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Bid Allocation" shall mean, with respect to the Master Servicer or
any Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the
amount of such proceeds (net of any expenses incurred in connection with such
bid and the transfer of servicing), multiplied by a fraction equal to (a) the
Servicer Fee Amount for the Master Servicer or such Sub-Servicer, as the case
may be, as of such date of determination, over (b) the aggregate of the Servicer
Fee Amounts for the Master Servicer and all of the Sub-Servicers as of such date
of determination.
"Book-Entry Certificate" shall mean any Certificate registered in
the name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate that constitutes a Book-Entry Certificate.
"Breach" shall have the meaning assigned thereto in Section 2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions in New York, New York, or in any of the
cities in which the Corporate Trust Office of the Trustee, the Primary Servicing
Office of the Master Servicer, any Lead Master Servicer or the Special Servicer
are located, are authorized or obligated by law or executive order to remain
closed.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificates" shall mean any of the Class X-0, Xxxxx X-0, Class
A-3, Class X-0, Xxxxx, X-0, Class A-6, Class A-7, Class XP, Class XC, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class OEA-B1, Class OEA-B2, Class R-I or
Class R-II Certificates, as applicable.
"Certificate Factor" shall mean, with respect to any Class of
Regular Interest Certificates, as of any date of determination, a fraction,
expressed as a decimal carried to six places, the numerator of which is the then
current Class Principal Balance or Notional Amount, as the case may be, of such
Class of Regular Interest Certificates, and the denominator of which is the
Original Class Principal Balance or initial Notional Amount, as the case may be,
of such Class of Regular Interest Certificates.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the then
outstanding principal balance of such Certificate equal to the product of (a)
the then Certificate Factor for the Class of Principal Balance Certificates to
which such Certificate belongs, multiplied by (b) the amount specified on the
face of such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" shall mean the register maintained pursuant
to Section 5.02.
"Certificate Registrar" shall mean the registrar appointed pursuant
to Section 5.02.
"Certificateholder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register, except that: (i) neither
a Disqualified Organization nor a Disqualified Non-United States Tax Person
shall be Holder of a Residual Interest Certificate for any purpose hereof; and
(ii) solely for the purposes of giving any consent, approval or waiver pursuant
to this Agreement that relates to the rights and/or obligations of any of the
Depositor, the Master Servicer, the Special Servicer, the Fiscal Agent or the
Trustee in its respective capacity as such, any Certificate registered in the
name of the Depositor, the Master Servicer, the Special Servicer, the Fiscal
Agent or the Trustee, as the case may be, or any Certificate registered in the
name of any of its Affiliates, shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that relates to it has been
obtained. The Certificate Registrar shall be entitled to request and rely upon a
certificate of the Depositor, the Master Servicer or the Special Servicer in
determining whether a Certificate is registered in the name of an Affiliate of
such Person. All references herein to "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Depository and the Depository Participants, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Certificateholder" only the Person in whose name a Certificate
is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the
Distribution Date Statement, the Mortgage Pool Data Update Report, the Loan
Payoff Notification Report and the CMSA Investor Reporting Package.
"Certification Parties" shall have the meaning assigned to such term
in Section 8.15(d).
"Certifying Person" shall have the meaning assigned to such term in
Section 8.15(d).
"Class" shall mean, collectively, all of the Certificates bearing
the same alphabetical and, if applicable, numerical class designation.
"Class A Certificates" shall mean the Class A-1, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6 and Class A-7 Certificates.
"Class A-1 Certificate" shall mean any one of the Certificates with
a "Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Certificate" shall mean any one of the Certificates with
a "Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Certificate" shall mean any one of the Certificates with
a "Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Certificate" shall mean any one of the Certificates with
a "Class A-4" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-5 Certificate" shall mean any one of the Certificates with
a "Class A-5" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-6 Certificate" shall mean any one of the Certificates with
a "Class A-6" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-7 Certificate" shall mean any one of the Certificates with
a "Class A-7" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Certificate" shall mean any one of the Certificates with a
"Class B" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Certificate" shall mean any one of the Certificates with a
"Class C" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Certificate" shall mean any one of the Certificates with a
"Class D" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Certificate" shall mean any one of the Certificates with a
"Class E" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Certificate" shall mean any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Certificate" shall mean any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Certificate" shall mean any of the Certificates with a
"Class H" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Certificate" shall mean any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Certificate" shall mean any of the Certificates with a
"Class K" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Certificate" shall mean any of the Certificates with a
"Class L" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class LA-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-2-1 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-2-2 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-2-3 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-3-1 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-3-2 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-3-3 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-3-4 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-3-5 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-4-1 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-4-2 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-4-3 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-5-1 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-5-2 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-5-3 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-5-4 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-6 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-7-1 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-7-2 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LB Interest" shall mean a regular interest in the Lower Tier
REMIC which is held as an asset of the Upper Tier REMIC and having the Original
Lower Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LC Interest" shall mean a regular interest in the Lower Tier
REMIC which is held as an asset of the Upper Tier REMIC and having the Original
Lower Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LD-1 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LD-2 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LD-3 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LE-1 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LE-2 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LE-3 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LF-1 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LF-2 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LF-3 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LG-1 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LG-2 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LH-1 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LH-2 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LH-3 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LJ Interest" shall mean a regular interest in the Lower Tier
REMIC which is held as an asset of the Upper Tier REMIC and having the Original
Lower Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LK Interest" shall mean a regular interest in the Lower Tier
REMIC which is held as an asset of the Upper Tier REMIC and having the Original
Lower Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LL-1 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LL-2 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LM Interest" shall mean a regular interest in the Lower Tier
REMIC which is held as an asset of the Upper Tier REMIC and having the Original
Lower Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LN Interest" shall mean a regular interest in the Lower Tier
REMIC which is held as an asset of the Upper Tier REMIC and having the Original
Lower Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LO Interest" shall mean a regular interest in the Lower Tier
REMIC which is held as an asset of the Upper Tier REMIC and having the Original
Lower Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LOEA-B1 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LOEA-B2 Interest" shall mean a regular interest in the Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and having the
Original Lower Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LP Interest" shall mean a regular interest in the Lower Tier
REMIC which is held as an asset of the Upper Tier REMIC and having the Original
Lower Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class M Certificate" shall mean any of the Certificates with a
"Class M" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Certificate" shall mean any of the Certificates with a
"Class N" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class O Certificate" shall mean any of the Certificates with a
"Class O" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class OEA-B Certificates" shall mean the Class OEA-B1 and Class
OEA-B2 Certificates.
"Class OEA-B Adjusted Net Mortgage Rate" means with respect to any
Distribution Date, (i) the Mortgage Rate of the 000 Xxxxxx Xxxxxx Non-Pooled
Trust Loan multiplied by (ii) a fraction of which (x) the numerator is the
number of days in the interest accrual period for the 000 Xxxxxx Xxxxxx Loan
Group that relates to the Due Date (which is calculated on an Actual/360 Basis)
related to such Distribution Date and (y) the denominator is 30, minus (iii) the
Administrative Cost Rate.
"Class OEA-B1 Certificate" shall mean any of the Certificates with a
"Class OEA-B1" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class OEA-B2 Certificate" shall mean any of the Certificates with a
"Class OEA-B2" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class OEA-B Majority Holder" shall mean the Holder or Holders of
more than 50% of the aggregate Class Principal Balance of the Class OEA-B
Certificates.
"Class OEA-B Principal Distribution Amount" shall mean an amount
calculated in the same manner as the Principal Distribution Amount, but solely
with respect to the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan, and without regard
to the proviso with respect to the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan set
forth in the definition of "Principal Distribution Amount."
"Class OEA-B 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 the Lower-Tier REMIC.
"Class P Certificate" shall mean any of the Certificates with a
"Class P" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class Principal Balance" shall mean the aggregate principal balance
of any Class of Principal Balance Certificates outstanding as of any date of
determination. As of the Closing Date, the Class Principal Balance of each Class
of Principal Balance Certificates shall equal the Original Class Principal
Balance thereof. On each Distribution Date, the Class Principal Balance of each
Class of Principal Balance Certificates shall be permanently reduced by the
amount of any distributions of principal made thereon on such Distribution Date
pursuant to Section 4.01 or 9.01, as applicable, and shall be further
permanently reduced (subject to Section 4.05) by the amount of any Realized
Losses and Additional Trust Fund Expenses deemed allocated thereto on such
Distribution Date pursuant to Section 4.04(a). On each Distribution Date, the
Class Principal Balance of each Class of Principal Balance Certificates shall be
increased by the related Class Principal Reinstatement Amount, if any, for such
Distribution Date.
"Class Principal Reinstatement Amount" shall have the meaning
assigned thereto in Section 4.05(a).
"Class R-I Certificate" shall mean any one of the Certificates with
a "Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-7 attached hereto, and evidencing a portion of the sole class of
"residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions and representing beneficial ownership of each Loan REMIC Residual
Interest.
"Class R-II Certificate" shall mean any one of the Certificates with
a "Class R-II" designation on the face thereof, substantially in the form of
Exhibit A-7 attached hereto, and evidencing a portion of the sole class of
"residual interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class X Certificates" shall mean the Class XP Certificates and the
Class XC Certificates.
"Class XC Certificate" shall mean any one of the Certificates with a
"Class XC" designation on the face thereof, substantially in the form of Exhibit
A-2 attached hereto, and evidencing the Components and a portion of a class of
"regular interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class XC Notional Amount" shall mean, with respect to the Class XC
Certificates and any date of determination, the sum of the then Component
Notional Amounts of all of the Components.
"Class XC Strip Rate" shall mean, with respect to (A) any Class of
Components (other than the Class XP Components) for any Distribution Date, a
rate per annum equal to (i) the Weighted Average Net Mortgage Rate for such
Distribution Date, minus (ii) the Pass-Through Rate for the Corresponding
Certificates and (B) the Class XP Components (i) for any Distribution Date
occurring on or before the related Class XP Component Crossover Date, (x) the
Weighted Average Net Mortgage Rate for such Distribution Date minus (y) the sum
of the Pass-Through Rate for the Corresponding Certificates for such
Distribution Date and the Class XP Strip Rate for such Component for such
Distribution Date, and (ii) for any Distribution Date occurring after the
related Class XP Component Crossover Date, a rate per annum equal to (x) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (y) the
Pass-Through Rate for the Corresponding Certificates. In no event shall any
Class XC Strip Rate be less than zero.
"Class XP Certificate" shall mean any one of the Certificates with a
"Class XP" designation on the face thereof, substantially in the form of Exhibit
A-2 attached hereto, and evidencing the Class XP Components and a portion of a
class of "regular interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class XP Component Crossover Date" shall mean (i) with respect to
Component X-A-2-2, the Distribution Date occurring in November 2005, (ii) with
respect to Component X-A-2-3, Component X-A-3-1 and Component X-L-1, the
Distribution Date occurring in May 2006, (iii) with respect to Component
X-A-3-2, Component X-H-1, Component X-J, Component X-K and Component X-L-2, the
Distribution Date occurring in November 2006, (iv) with respect to Component
X-A-3-3 and Component X-H-2, the Distribution Date occurring in May 2007, (v)
with respect to Component X-A-3-4, Component X-G-1 and Component X-H-3, the
Distribution Date occurring in November 2007, (vi) with respect to Component
X-A-3-5, Component X-A-4-1, Component X-F-1 and Component X-G-2, the
Distribution Date occurring in May 2008, (vii) with respect to Component
X-A-4-2, and Component X-F-2, the Distribution Date occurring in November 2008,
(viii) with respect to Component X-A-4-3, Component X-A-5-1, Component X-E-1 and
Component X-F-3, the Distribution Date occurring in May 2009, (ix) with respect
to Component X-A-5-2 and Component X-E-2, the Distribution Date occurring in
November 2009, (x) with respect to Component X-A-5-3, Component X-D-1 and
Component X-E-3, the Distribution Date occurring in May 2010, (xi) with respect
to Component X-A-5-4, Component X-A-6, Component X-A-7-1 and Component X-D-2,
the Distribution Date occurring in November 2010, and (xii) with respect to
Component X-A-7-2, Component X-B, Component X-C and Component X-D-3, the
Distribution Date in May 2011.
"Class XP Components" shall mean each of Component X-A-2-2,
Component X-A-2-3, Component X-A-3-1, Component X-A-3-2, Component X-A-3-3,
Component X-A-3-4, Component X-A-3-5, Component X-A-4-1, Component X-A-4-2,
Component X-A-4-3, Component X-A-5-1, Component X-A-5-2, Component X-A-5-3,
Component X-A-5-4, Component X-A-6, Component X-A-7-1, Component X-A-7-2,
Component X-B, Component X-C, Component X-D-1, Component X-D-2, Component X-D-3,
Component X-E-1, Component X-E-2, Component X-E-3, Component X-F-1, Component
X-F-2, Component X-F-3, Component X-G-1, Component X-G-2, Component X-H-1,
Component X-H-2, Component X-H-3, Component X-J, Component X-K, Component X-L-1
and Component X-L-2.
"Class XP Notional Amount" shall mean, as of any date of
determination, the sum of the then Component Notional Amounts of the Class XP
Components.
"Class XP Reference Rate" shall mean, for any Distribution Date, the
rate per annum corresponding to such Distribution Date on Schedule IV.
"Class XP Strip Rate" shall mean, with respect to each of the Class
XP Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class XP Component
Crossover Date, (x) the lesser of (I) the Weighted Average Net Mortgage Rate for
such Distribution Date and (II) the Class XP Reference Rate for such
Distribution Date minus (y) the Pass-Through Rate for the Corresponding
Certificates (provided that in no event shall any Class XP Strip Rate be less
than zero) and (ii) for any Distribution Date occurring after the related Class
XP Component Crossover Date, 0% per annum.
"Clearstream" shall mean Clearstream Banking, Societe Anonyme or any
successor.
"Closing Date" shall mean May 13, 2004.
"CMSA" shall mean the Commercial Mortgage Securities Association, or
any association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Directing Holder.
"CMSA Bond Level File" shall mean the monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Bond Level File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Collateral Summary File" shall mean the report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Collateral Summary File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Comparative Financial Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Comparative Financial Status Report" available as
of the Closing Date on the CMSA Website, or such other form for the presentation
of such information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA 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.
"CMSA Delinquent Loan Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Delinquent Loan Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Financial File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally. The initial data for this
report shall be provided by each Mortgage Loan Seller.
"CMSA Historical Liquidation Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Historical Liquidation Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" shall mean a report substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Loan
Modification and Corrected Mortgage Loan Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following six electronic files: (i) CMSA Loan Setup File,
(ii) CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA
Bond Level File, (v) CMSA Financial File, (vi) CMSA Collateral Summary
File and (vii) CMSA Special Servicer Loan File;
(b) the following nine supplemental reports: (i) CMSA Delinquent
Loan Status Report, (ii) CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, (iii) CMSA Historical Liquidation Report, (iv) CMSA
REO Status Report, (v) CMSA Operating Statement Analysis Report, (vi) CMSA
Comparative Financial Status Report, (vii) CMSA Servicer Watch List,
(viii) CMSA Loan Level Reserve/LOC Report and (ix) CMSA NOI Adjustment
Worksheet; and
(c) the Monthly Additional Report on Recoveries and Reimbursements
(notwithstanding that such form of report has not been adopted or
recommended by the CMSA).
"CMSA Loan Level Reserve/LOC Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve/LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Loan Periodic Update File" shall mean the monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally. The initial data for this report shall be provided by each Mortgage
Loan Seller. Each CMSA Loan Periodic Update File prepared by the Master Servicer
shall, if applicable, be accompanied by a Monthly Additional Report on
Recoveries and Reimbursements and all references herein to "CMSA Loan Periodic
Update File" shall be construed accordingly.
"CMSA Loan Setup File" shall mean the report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Loan Setup File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared by the
Master Servicer with respect to all the Performing Serviced Loans, and by the
Special Servicer with respect to Specially Serviced Loans and REO Loans, which
report shall be substantially in the form of, and contain the information called
for in, the downloadable form of the "NOI Adjustment Worksheet" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Operating Statement Analysis Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Operating Statement Analysis Report" available as
of the Closing Date on the CMSA Website or in such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage-backed
securities transactions generally.
"CMSA Property File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA REO Status Report" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "REO Status Report" available as of the Closing Date on the CMSA Website, or
in such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Servicer Watch List" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Servicer Watch List" available as of the Closing Date on the CMSA Website,
or in such other form for the presentation of such information and containing
such additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Special Servicer Loan File" shall mean a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Special Servicer Loan File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Website" shall mean the CMSA's Website located at
"xxx.xxxx.xxx" or such other primary website as the CMSA may establish for
dissemination of its report forms.
"Co-Lender Agreement" shall have the meaning assigned thereto in the
Preliminary Statement.
"Code" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including temporary regulations and proposed regulations
to the extent that, by reason of their proposed effective date, could, as of the
date of any determination or opinion as to the tax consequences of any action or
proposed action or transaction, be applied to the Certificates.
"Collection Period" shall mean, with respect to any Distribution
Date or Master Servicer Remittance Date, the period commencing on the day
immediately following the Determination Date in the calendar month preceding the
month in which such Distribution Date or Master Servicer Remittance Date, as the
case may be, occurs (or, in the case of each of the initial Distribution Date
and the initial Master Servicer Remittance Date, commencing immediately
following the Cut-off Date) and ending on and including the Determination Date
in the calendar month in which such Distribution Date or Master Servicer
Remittance Date, as the case may be, occurs.
"Commerzbank" shall mean Commerzbank AG, New York Branch, a company
formed under the laws of the Federal Republic of Germany and licensed to engage
in the banking business under Article V of the Banking Law of the State of New
York, and its successors in interest.
"Commission" shall mean the Securities and Exchange Commission or
any successor agency.
"Companion Loan" shall have the meaning assigned thereto in the
Preliminary Statement.
"Companion Loan Noteholder" shall mean, with respect to any Loan
Group, the Holder of the Mortgage Note for the related Companion Loan.
"Companion Loan Securities" means the securities issued in
connection with the inclusion of a Pari Passu Companion Loan into a trust as
part of a securitization of one or more mortgage loans.
"Components" shall mean each of Component X-A-1, Component X-A-2-1,
Component X-A-2-2, Component X-A-2-3, Component X-A-3-1, Component X-A-3-2,
Component X-A-3-3, Component X-A-3-4, Component X-A-3-5, Component X-A-4-1,
Component X-A-4-2, Component X-A-4-3, Component X-A-5-1, Component X-A-5-2,
Component X-A-5-3, Component X-A-5-4, Component X-A-6, Component X-A-7-1,
Component X-A-7-2, Component X-B, Component X-C, Component X-D-1, Component
X-D-2, Component X-D-3, Component X-E-1, Component X-E-2, Component X-E-3,
Component X-F-1, Component X-F-2, Component X-F-3, Component X-G-1, Component
X-G-2, Component X-H-1, Component X-H-2, Component X-H-3, Component X-J,
Component X-K, Component X-L-1, Component X-L-2, Component X-M, Component X-N,
Component X-O and Component X-P.
"Component X-A-1" shall mean one of 43 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-1 Interest.
"Component X-A-2-1" shall mean one of 43 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-2-1 Interest.
"Component X-A-2-2" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-2-2 Interest.
"Component X-A-2-3" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-2-3 Interest.
"Component X-A-3-1" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-3-1 Interest.
"Component X-A-3-2" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-3-2 Interest.
"Component X-A-3-3" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-3-3 Interest.
"Component X-A-3-4" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-3-4 Interest.
"Component X-A-3-5" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-3-5 Interest.
"Component X-A-4-1" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-4-1 Interest.
"Component X-A-4-2" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-4-2 Interest.
"Component X-A-4-3" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-4-3 Interest.
"Component X-A-5-1" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-5-1 Interest.
"Component X-A-5-2" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-5-2 Interest.
"Component X-A-5-3" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-5-3 Interest.
"Component X-A-5-4" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-5-4 Interest.
"Component X-A-6" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-6 Interest.
"Component X-A-7-1" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-7-1 Interest.
"Component X-A-7-2" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LA-7-2 Interest.
"Component X-B" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LB Interest.
"Component X-C" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LC Interest.
"Component X-D-1" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LD-1 Interest.
"Component X-D-2" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LD-2 Interest.
"Component X-D-3" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LD-3 Interest.
"Component X-E-1" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LE-1 Interest.
"Component X-E-2" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LE-2 Interest.
"Component X-E-3" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LE-3 Interest.
"Component X-F-1" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LF-1 Interest.
"Component X-F-2" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LF-2 Interest.
"Component X-F-3" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LF-3 Interest.
"Component X-G-1" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LG-1 Interest.
"Component X-G-2" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LG-2 Interest.
"Component X-H-1" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LH-1 Interest.
"Component X-H-2" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LH-2 Interest.
"Component X-H-3" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LH-3 Interest.
"Component X-J" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LJ Interest.
"Component X-K" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LK Interest.
"Component X-L-1" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LL-1 Interest.
"Component X-L-2" shall mean one of 43 components of the Class XC
Certificates and one of the 37 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of the Class LL-2 Interest.
"Component X-M" shall mean one of 43 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LM Interest.
"Component X-N" shall mean one of 43 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LN Interest.
"Component X-O" shall mean one of 43 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LO Interest.
"Component X-P" shall mean one of 43 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LP Interest.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then current Uncertificated
Principal Balance of its Corresponding Uncertificated Lower-Tier Interest.
"Condemnation Proceeds" shall mean all cash amounts Received in
connection with the taking of all or a part of a Mortgaged Property or REO
Property by exercise of the power of eminent domain or condemnation, subject,
however, to the rights of any tenants and ground lessors, as the case may be,
and the terms of the related Mortgage.
"Consultation Appraisal Event" shall exist with respect to any Tier
2 Loan Group, if and for so long as:
(a) (1) the initial balance of the related Companion Loan minus (2)
the sum of (x) any principal payments, allocated to, and received on, the
related Subordinate Companion Loan, (y) any Appraisal Reduction Amounts
allocated to such Companion Loan and (without duplication) (z) Realized
Losses allocated to such Companion Loan
is less than
(b) 25% of the initial balance of such Companion Loan.
"Control Appraisal Event" shall exist with respect to the 000 Xxxxxx
Xxxxxx Loan Group, if and for so long as:
(a) (1) the aggregate initial principal balance of the 000 Xxxxxx
Xxxxxx Subordinate Loans minus (2) the sum of (x) any principal payments,
allocated to, and received on the 000 Xxxxxx Xxxxxx Subordinate Loans, (y)
any Appraisal Reduction Amounts allocated to the 000 Xxxxxx Xxxxxx
Subordinate Loans and (without duplication) (z) Realized Losses allocated
to the 000 Xxxxxx Xxxxxx Subordinate Loans,
is less than
(b) 25% of the aggregate initial principal balance of the 000 Xxxxxx
Xxxxxx Subordinate Loans.
"Controlling Class" shall mean the Class of Certificates (other than
the Residual Interest Certificates and the Class OEA-B Certificates) with the
latest alphabetical Class designation that has a then-aggregate Class Principal
Balance that is not less than 25% of the Original Class Principal Balance of
such Class; provided that if no Class of Principal Balance Certificates has, as
of such date of determination, a Class Principal Balance that meets the
requirements above, then the Controlling Class shall be the then outstanding
Class of Principal Balance Certificates bearing the latest alphabetic Class
designation that has a Class Principal Balance greater than zero; and provided,
further, that, for purposes of determining the Controlling Class, the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6 and Class A-7 Certificates
shall be deemed a single Class of Certificates. As of the Closing Date, the
Controlling Class will be the Class P Certificates. If the Controlling Class
consists of Book-Entry Certificates, then the rights of the Holders of the
Controlling Class set forth in this Agreement may be exercised directly by the
relevant Certificate Owners, provided that the identity of such Certificate
Owners has been confirmed to the Trustee to its reasonable satisfaction.
"Controlling Class Certificateholder" shall mean any Holder of a
Certificate of the Controlling Class.
"Controlling Class Directing Holder" shall mean the Holder or
Holders of greater than 50% of the Voting Rights assigned to the Controlling
Class; provided that no Holder of Voting Rights allocated to the Controlling
Class may exercise any rights of such Class with respect to any Loan as to which
such Holder is a Mortgagor Affiliate Holder.
"Corporate Trust Office" shall mean the principal corporate trust
office of the Trustee at which at any particular time its asset-backed
securities trust business with respect to this Agreement shall be administered,
which office at the date of the execution of this Agreement is located at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Asset-Backed Securities Trust Services Group - Greenwich Capital Commercial
Funding Corp., Commercial Mortgage Trust Series 2004-GG1.
"Corrected Loan" shall mean any Mortgage Loan that had been a
Specially Serviced Loan but has ceased to be such in accordance with the
definition of "Specially Serviced Loan" (other than by reason of a Liquidation
Event occurring in respect of such Loan or the related Mortgaged Property's
becoming an REO Property).
"Corresponding Certificate" shall have the meaning assigned thereto
in the Preliminary Statement with respect to any Corresponding Component or any
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Component" shall have the meaning assigned thereto in
the Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Uncertificated Lower-Tier Interest" shall have the
meaning assigned thereto in the Preliminary Statement with respect to any
Corresponding Certificate or any Corresponding Component.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan
that is cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Cross-Over Date" shall mean the Distribution Date on which (i) the
Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class A-5, Class A-6 and Class A-7
Certificates, or any two or more of such Classes, remain outstanding and (ii)
the aggregate of the Class Principal Balances of the Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O and Class P Certificates are reduced to zero as a result of the
allocation of Realized Losses and Additional Trust Fund Expenses pursuant to
Section 4.04(a).
"Custodial Account" shall mean either of the Pool Custodial Account
or any Loan Group Custodial Account.
"Custodian" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files,
which Person shall not be the Depositor, the Mortgage Loan Sellers or an
Affiliate of the Depositor or the Mortgage Loan Sellers. If no such custodian
has been appointed, or if such custodian has been so appointed but the Trustee
shall have terminated such appointment, then the Trustee shall be the Custodian.
"Cut-off Date" shall mean May 1, 2004.
"Cut-off Date Balance" shall mean, with respect to any Loan, the
outstanding principal balance of such Loan as of the Cut-off Date, net of all
unpaid payments of principal due in respect thereof on or before such date.
"Davies Pacific Center Loan Group" shall have the meaning assigned
thereto in the Preliminary Statement.
"Davies Pacific Center Subordinate Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Davies Pacific Center Trust Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"DDR Portfolio Loan Group" shall have the meaning assigned thereto
in the Preliminary Statement.
"DDR Portfolio Pari Passu Companion Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
"DDR Portfolio Trust Loan" shall have the meaning assigned thereto
in the Preliminary Statement.
"Deerbrook Mall Mortgage Loan" shall mean that certain Mortgage Loan
(evidenced by two Mortgage Notes, which are assets of the Trust Fund) secured by
the Mortgaged Property identified on the Mortgage Loan Schedule as Deerbrook
Mall.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, to the Trust in
respect of any Loan or any successor REO Loan with respect thereto.
"Default Interest" shall mean, with respect to any Serviced Loan or
any successor REO Loan with respect thereto, any amounts Received thereon (other
than late payment charges, Prepayment Premiums or Yield Maintenance Charges)
that represent penalty interest (arising out of a default) in excess of interest
accrued on the principal balance of such Loan (or successor REO Loan), at the
related Mortgage Rate.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defeasance Certificate" shall have the meaning assigned thereto in
Section 3.21(k).
"Defeasance Collateral" shall mean, with respect to any Defeasance
Loan, the Government Securities required or permitted to be pledged in lieu of
prepayment pursuant to the terms thereof in order to obtain a release of the
related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned thereto
in Section 3.04(a).
"Defeasance Loan" shall mean any Loan that permits the related
Mortgagor to pledge Defeasance Collateral to the holder of such loan in lieu of
prepayment.
"Definitive Certificate" shall have the meaning assigned thereto in
Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any
Non-Registered Certificate that has been issued as a Definitive Certificate.
"Depositor" shall mean Greenwich Capital Commercial Funding Corp,
and any successor in interest.
"Depository" shall mean The Depository Trust Company or any
successor Depository hereafter named as contemplated by Section 5.03(c). The
nominee of the initial Depository for purposes of registering those Certificates
that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at
all times be a "clearing corporation" as defined in Section 8-102(3) of the
Uniform Commercial Code of the State of New York and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date" shall mean the sixth calendar day of each month
(or, if such sixth day is not a Business Day, the Business Day immediately
following such sixth day), commencing in June 2004.
"Directing Holder" shall mean with respect to any Serviced Loan
Group, the person or persons selected by the related Loan Group Directing
Holder, and with respect to any other Mortgage Loan, the person selected by the
Controlling Class Directing Holder; provided, however, that (i) absent such
selection, or (ii) until a Directing Holder is so selected or (iii) upon receipt
of a notice from the Controlling Class Directing Holder or Loan Group Directing
Holder, as applicable, that a Directing Holder is no longer designated, the
Directing Holder will be the Loan Group Directing Holder or the Controlling
Class Directing Holder, as applicable; provided, further, that, in the case of a
Directing Holder selected by the Controlling Class Directing Holder, in order
for the Trustee to certify the status of such Directing Holder, the Directing
Holder must provide notice and certification to the Trustee as to its status as
Directing Holder, and the Trustee shall provide written notice to the
Controlling Class Certificateholders as to the designation of such Directing
Holder. No Mortgagor Affiliate Holder may be a Directing Holder. The Trustee
acknowledges and agrees that with respect to each Loan Group the Person set
forth on Schedule V shall be designated as the initial Directing Holder with
respect to the related Loan Group, and that no further notice of such selection
is required. In the event that a Controlling Class Directing Holder or Loan
Group Directing Holder appoints a third party (including any affiliate) to act
as Directing Holder, none of the parties to this Agreement shall be obligated to
recognize such appointment unless such Controlling Class Directing Holder or
Loan Group Directing Holder shall have delivered to each party to this Agreement
a certification regarding such appointment. Any Loan Group Directing Holder that
is a Directing Holder may, in its capacity as Directing Holder, only control,
direct, prohibit or be consulted with respect to the enforcement of the related
Mortgage or the servicing and administration of the related Loan Group to the
extent set forth in this Agreement. The Directing Holder shall be required to
keep all non-public information received by it in such capacity pursuant to this
Agreement confidential and, upon its designation as such, shall deliver to the
Trustee a confirmation to such effect.
"Directly Operate" shall mean, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale or lease, the performance of any construction work thereon or any use of
such REO Property in a trade or business conducted by the Lower-Tier REMIC or
the related Loan REMIC, as applicable, other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer or any
Sub-Servicer on behalf of the Trustee) shall not be considered to Directly
Operate an REO Property solely because the Trustee (or the Special Servicer or
any Sub-Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs or capital expenditures with respect to such REO
Property.
"Discount Rate" shall mean, with respect to any prepaid Mortgage
Loan or REO Mortgage Loan, for purposes of allocating any Prepayment Premium or
Yield Maintenance Charge Received with respect thereto among the Class X-0,
Xxxxx X-0, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class B, Class
C, Class D, Class E, Class F, Class G and Class H Certificates, a rate equal to
the yield (when compounded monthly) on the U.S. Treasury issue (primary issue)
with a maturity date closest to the maturity date, as published in Federal
Reserve Statistical Release H.15 (519) published by the Federal Reserve Board;
provided that if there are two such U.S. Treasury issues (a) with the same
coupon, the issue with the lower yield shall apply, and (b) with maturity dates
equally close to the maturity date for such prepaid Mortgage Loan or REO
Mortgage Loan, the issue with the earliest maturity date shall apply.
"Disqualified Non-United States Tax Person" shall mean, with respect
to any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury Regulations Section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury Regulations Section
1.860E-1(c)(4)(ii), as a Holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
"Disqualified Organization" shall mean any of the following: (i) the
United States, any State or any political subdivision thereof, any foreign
government, international organization, or any agency or instrumentality of any
of the foregoing; (ii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) that is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business income); (iii) rural electric and
telephone cooperatives described in Section 1381 of the Code; or (iv) any other
Person so designated by the Trustee or the Tax Administrator based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Interest Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates, other than such
Person, to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Residual Interest Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Disqualified Partnership" shall mean any domestic entity classified
as a partnership under the Code if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest" shall mean, with respect to any
Class of Regular Interest Certificates for any Distribution Date, subject to
Section 4.05(b), an amount of interest equal to the amount of Accrued
Certificate Interest in respect of such Class of Certificates for the related
Interest Accrual Period, reduced (to not less than zero) by that portion, if
any, of the Net Aggregate Prepayment Interest Shortfall (or, in the case of the
Class OEA-B Certificates, the Net OEA-B Prepayment Interest Shortfall) for such
Distribution Date allocated to such Class of Certificates as provided below. The
Net Aggregate Prepayment Interest Shortfall, if any, for each Distribution Date
shall be allocated among the respective Classes of Regular Interest Certificates
(other than the Class OEA-B Certificates) on a pro rata basis in accordance
with, the respective amounts of Accrued Certificate Interest for each such Class
of Certificates for the related Interest Accrual Period. The Net OEA-B
Prepayment Interest Shortfall, if any, for each Distribution Date shall be
allocated among the Classes of OEA-B Certificates on a pro rata basis in
accordance with, the respective amounts of Accrued Certificate Interest for each
such Class of Certificates for the related Interest Accrual Period.
"Distribution Account" shall mean the segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b), which shall
be entitled "LaSalle Bank National Association, as Trustee, in trust for the
registered holders of Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust 2004-GG1, Commercial Mortgage Pass-Through Certificates, Series
2004-GG1" which account shall be deemed to consist of, collectively, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the Class
OEA-B Sub-Account, the Grantor Trust Sub-Accounts and the Interest Reserve
Account.
"Distribution Date" shall mean the date each month, commencing in
June 2004, on which, among other things, the Trustee is to make distributions on
the Certificates, which date shall be the tenth day of the month, or if such
tenth day is not a Business Day, then the Business Day immediately following
such tenth day, provided that the Distribution Date will be at least four
Business Days following the related Determination Date.
"Distribution Date Statement" shall have the meaning assigned
thereto in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in Section
2.03(a).
"Due Date" shall mean: (i) with respect to any Loan on or prior to
its Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Loan is scheduled to be first due;
(ii) with respect to any Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Loan had been scheduled to be first due; and (iii) with respect to any REO
Loan, the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Loan had been scheduled to be first due.
"XXXXX" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean any of: (i) an account maintained with
a federal or state chartered depository institution or trust company, the
long-term deposit or unsecured debt obligations of which are rated at least
"AA-" by Fitch Ratings, "Aa3" by Moody's and at least "AA-" (or, if such
depository institution or trust company has short-term unsecured debt
obligations rated at least "A-1" by S&P, at least "A+") by S&P (or, in the case
of any Rating Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates or Companion Loan Securities, as
evidenced in writing by such Rating Agency) at any time such funds are on
deposit therein (if such funds are to be held for more than 30 days), or the
short-term deposits of which are rated at least "F-1" by Fitch Ratings, "P-1" by
Moody's and at least "A-1" by S&P (or, in the case of any Rating Agency, such
lower rating as will not result in an Adverse Rating Event with respect to any
Class of Certificates or Companion Loan Securities, as evidenced in writing by
such Rating Agency) at any time such funds are on deposit therein (if such funds
are to be held for 30 days or less); or (ii) a segregated trust account
maintained with the trust department of a federal or state chartered depository
institution or trust company acting in its fiduciary capacity (which may be the
Trustee), which has a combined capital and surplus of at least $50,000,000, is
subject to supervision or examination by federal or state authority and, in the
case of a state chartered depository institution or trust company, is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR ss. 9.10(b); or (iii) any other account, the use of which would not,
in and of itself, cause an Adverse Rating Event with respect to any Class of
Certificates or Companion Loan Securities, as evidenced in writing by each
Rating Agency.
"Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the Xxxxxx Mae Multifamily
Guide and the ASTM Standard for Environmental Site Assessments, each as amended
from time to time.
"Environmental Insurance Policy" shall mean, with respect to any
Mortgaged Property or REO Property, any insurance policy covering pollution
conditions and/or other environmental conditions that is maintained from time to
time in respect of such Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the Mortgage
Loans identified on Schedule III hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor for
application toward the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and other items for which an escrow has
been created in respect of the related Mortgaged Property.
"Euroclear" shall mean Euroclear Bank 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 the excess, if any, of (a)
the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Mortgage Loan or REO Property, net of (i) interest on any related
Advances, (ii) any related Servicing Advances and (iii) any Liquidation Fee
payable from such Net Liquidation Proceeds, over (b) the amount needed to pay
off the Mortgage Loan or related REO Loan in full and reimburse the Trust for
any prior Additional Trust Fund Expenses related to such Loan. Any Excess
Liquidation Proceeds in respect of a Loan REMIC Loan will be deemed distributed
in respect of the related Loan REMIC Residual Interest and deemed deposited in
the Excess Liquidation Proceeds Account.
"Excess Liquidation Proceeds Account" shall mean the segregated
account created and maintained by the Trustee pursuant to Section 3.04(d) in
trust for the Certificateholders, which shall be entitled "LaSalle Bank National
Association, as Trustee, in trust for the registered Holders of Greenwich
Capital Commercial Funding Corp., Commercial Mortgage Trust 2004-GG1, Commercial
Mortgage Pass-Through Certificates, Series 2004-GG1."
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Reports" shall have the meaning assigned thereto in
Section 8.15(a).
"Exemption-Favored Party" shall mean any of (i) Greenwich Capital
Markets, (ii) Xxxxxxx, Xxxxx & Co. (iii) any Person directly or indirectly,
through one or more intermediaries, controlling, controlled by or under common
control with Greenwich Capital Markets, or, Xxxxxxx, Sachs & Co., as applicable
and (iii) any member of any underwriting syndicate or selling group of which any
Person described in clauses (i) and (ii) is a manager or co-manager with respect
to a Class of Investment Grade Certificates.
"Xxxxxx Xxx" shall mean the Federal National Mortgage Association or
any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date" shall mean the Distribution Date on which
the final distribution is to be made with respect to the Certificates in
connection with a termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination" shall mean a determination by the
Special Servicer with respect to any Specially Serviced Loan or REO Property
that there has been a recovery of all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds and other payments or recoveries that the Special Servicer
has determined, in accordance with the Servicing Standard, will be ultimately
recoverable (or in the case of the Non-Serviced Loan Groups, a "Final Recovery
Determination" as defined in the applicable Lead PSA with respect to such loan);
provided that the term Final Recovery Determination shall not apply to: (i) a
Loan that was paid in full; or (ii) a Loan or REO Property, as the case may be,
that was purchased by (A) the applicable Mortgage Loan Seller pursuant to
Section 2.03(a) and the applicable Mortgage Loan Purchase Agreement, (B) a
Purchase Option Holder or its assignee pursuant to Section 3.19, (C) the
Depositor, the Mortgage Loan Sellers, the Special Servicer, a Controlling Class
Certificateholder or the Master Servicer pursuant to Section 9.01, (D) the
holder of a related mezzanine loan in connection with a Loan default, as set
forth in the related intercreditor agreement or (E) in the case of the Loan
Group Trust Mortgage Loans, the related Companion Loan Noteholder (or in the
case of the 000 Xxxxxx Xxxxxx Trust Loans, the Class OEA-B Majority Holder or
the holder of the 000 Xxxxxx Xxxxxx Subordinate Companion Loan) or their
designees pursuant to the related Co-Lender Agreement.
"Fiscal Agent" shall mean ABN AMRO, in its capacity as fiscal agent
hereunder, or any successor fiscal agent appointed as herein provided.
"Fitch Ratings" shall mean Fitch, Inc. or its successor in interest.
If neither such rating agency nor any successor remains in existence, "Fitch
Ratings" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Fiscal
Agent, the Master Servicer and the Special Servicer, and specific ratings of
Fitch, Inc. herein referenced shall be deemed to refer to the equivalent ratings
of the party so designated.
"FV Price" shall have the meaning assigned thereto in Section
3.19(c).
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"GCCFC C2 Depositor" shall have the meaning assigned thereto in the
Preliminary Statement.
"GCCFC C2 Fiscal Agent" shall have the meaning assigned thereto in
the Preliminary Statement.
"GCCFC C2 Master Servicer" shall have the meaning assigned thereto
in the Preliminary Statement.
"GCCFC C2 PSA" shall have the meaning assigned thereto in the
Preliminary Statement.
"GCCFC C2 Special Servicer" shall have the meaning assigned thereto
in the Preliminary Statement.
"GCCFC C2 Trustee" shall have the meaning assigned thereto in the
Preliminary Statement.
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule 144A Global
Certificate or the Regulation S Global Certificate.
"Global Opinion" shall have the meaning assigned thereto in Section
11.12.
"GMACCM C2 Depositor" shall have the meaning assigned thereto in the
Preliminary Statement.
"GMACCM C2 Master Servicer" shall have the meaning assigned thereto
in the Preliminary Statement.
"GMACCM C2 PSA" shall have the meaning assigned thereto in the
Preliminary Statement.
"GMACCM C2 Special Servicer" shall have the meaning assigned thereto
in the Preliminary Statement.
"GMACCM C2 Trustee" shall have the meaning assigned thereto in the
Preliminary Statement.
"GMACCM C3 Depositor" shall have the meaning assigned thereto in the
Preliminary Statement.
"GMACCM C3 Fiscal Agent" shall have the meaning assigned thereto in
the Preliminary Statement.
"GMACCM C3 Master Servicer" shall have the meaning assigned thereto
in the Preliminary Statement.
"GMACCM C3 PSA" shall have the meaning assigned thereto in the
Preliminary Statement.
"GMACCM C3 Special Servicer" shall have the meaning assigned thereto
in the Preliminary Statement.
"GMACCM C3 Trustee" shall have the meaning assigned thereto in the
Preliminary Statement.
"Government Securities" shall mean "Government Securities" as
defined in Section 2(a)(16) of the Investment Company Act of 1940, excluding any
such securities that are not acceptable to any Rating Agency as Defeasance
Collateral.
"Grantor Trust" shall have the meaning assigned thereto in the
Preliminary Statement.
"Grantor Trust Sub-Account" shall have the meaning assigned thereto
in Section 3.04(b).
"Greenwich Capital Markets" shall mean Greenwich Capital Markets,
Inc. or its successor in interest.
"Ground Lease" shall mean, with respect to any Mortgage Loan for
which the related Mortgagor has a leasehold interest in the related Mortgaged
Property, the lease agreement(s) (including any lease agreement with respect to
a master space lease) creating such leasehold interest.
"GSMC" shall mean Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations now existing or hereafter enacted,
and specifically including asbestos and asbestos-containing materials,
polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea
formaldehyde and any substance classified as being "in inventory," "usable work
in process" or similar classification which would, if classified as unusable, be
included in the foregoing definition.
"Holder" shall mean, with respect to a Certificate, a
Certificateholder and, with respect to any Loan REMIC Interest or Uncertificated
Lower-Tier Interest, the Trust.
"HUD-Approved Servicer" shall mean a servicer that is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
203 and 211 of the National Housing Act.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer, any
Controlling Class Certificateholder, and with respect to matters relating to a
particular Loan Group any Companion Loan Noteholder (or, in the case of the 000
Xxxxxx Xxxxxx Loan Group, the Class OEA-B Majority Holder), and any and all
Affiliates thereof, (ii) does not have any direct financial interest in or any
material indirect financial interest in any of the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, any Controlling Class
Certificateholder, and with respect to matters relating to a particular Loan
Group any Companion Loan Noteholder (or, in the case of the 000 Xxxxxx Xxxxxx
Loan Group, the Class OEA-B Majority Holder), or any Affiliate thereof, and
(iii) is not connected with the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, any Controlling Class Certificateholder, and
with respect to matters relating to a particular Loan Group any Companion Loan
Noteholder (or, in the case of the 000 Xxxxxx Xxxxxx Loan Group, the Class OEA-B
Majority Holder), or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Depositor, the Mortgage Loan Sellers, the Master Servicer, the Special Servicer,
any Controlling Class Certificateholder, any Companion Loan Noteholder, the
Class OEA-B Majority Holder, or any Affiliate thereof merely because such Person
is the beneficial owner of 1% or less of any class of securities issued by the
Depositor, the Mortgage Loan Sellers, the Master Servicer, the Special Servicer,
such Controlling Class Certificateholder, such Companion Loan Noteholder, such
Class OEA-B Majority Holder or any Affiliate thereof, as the case may be,
provided that such ownership constitutes less than 1% of the total assets owned
by such Person.
"Independent Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the Appraisal
Institute, (ii) if the state in which the subject Mortgaged Property is located
certifies or licenses appraisers, is certified or licensed in such state, and
(iii) has a minimum of five years experience in the subject property type and
market.
"Independent Contractor" shall mean: (a) any Person that would be an
"independent contractor" with respect to the Lower-Tier REMIC or an applicable
Loan REMIC within the meaning of Section 856(d)(3) of the Code if the Lower-Tier
REMIC or the 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 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, delivered to the
Trustee (and, if any of the Loan Groups are affected, to the Companion Loan
Noteholder, and in the case of the 000 Xxxxxx Xxxxxx Loan Group, the Holders of
the Class OEA-B Certificates), provided that (i) such REMIC Pool or Loan REMIC
does not receive or derive any income from such Person and (ii) the relationship
between such Person and such REMIC Pool or Loan REMIC is at arm's length, all
within the meaning of Treasury Regulations Section 1.856-4(b)(5); or (b) any
other Person upon receipt by the Trustee (and, if any of the Loan Groups are
affected, by the related Companion Loan Noteholder, and in the case of the 000
Xxxxxx Xxxxxx Loan Group, by the Holders of the Class OEA-B Certificates) of an
Opinion of Counsel, which shall be at no expense to the Master Servicer, the
Special Servicer, the Trustee or the Trust Fund, to the effect that the taking
of any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor, will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code for purposes of Section 860D(a) of the Code, or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property, due to such Person's failure to be treated as an Independent
Contractor.
"Initial Trust Balance" shall be as set forth in the Preliminary
Statement hereto and shall equal the aggregate Cut-off Date Balances of the
Mortgage Loans.
"Institutional Accredited Investor" or "IAI" shall mean an
"accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of
Rule 501(a) under the Securities Act or any entity in which all of the equity
owners come within such paragraphs.
"Insurance Policy" shall mean, with respect to any Loan, any hazard
insurance policy, flood insurance policy, title policy, Environmental Insurance
Policy or other insurance policy that is maintained from time to time in respect
of such Loan or the related Mortgaged Property.
"Insurance Proceeds" shall mean the proceeds paid under any
Insurance Policy, to the extent such proceeds are not applied to the restoration
of the related Mortgaged Property, released to the Mortgagor, or any tenants or
ground lessors, as the case may be, pursuant to the terms of the related
Mortgage or lease, in accordance with the Servicing Standard.
"Insured Environmental Event" shall have the meaning assigned
thereto in Section 3.07(d).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Loan, any Uncertificated Lower-Tier Interests or any
Class of Regular Interest Certificates, in each case consisting of one of the
following: (i) a 360-day year consisting of twelve 30-day months; (ii) actual
number of days elapsed in a 360-day year; (iii) actual number of days elapsed in
a 365-day year; or (iv) actual number of days elapsed in an actual calendar year
(taking account of leap year).
"Interest Accrual Period" shall mean with respect to any Class of
Regular Interest Certificates or Uncertificated Lower-Tier Interests and any
Distribution Date, the period beginning on the first day of the calendar month
preceding the calendar month in which the related Distribution Date occurs and
ending on the last day of the calendar month preceding the calendar month in
which such Distribution Date occurs, calculated assuming that each month has 30
days and each year has 360 days.
"Interested Person" shall mean the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, any Certificateholder, or
any Affiliate of any such Person.
"Interest Reserve Account" shall mean the sub-account of the
Distribution Account, which is created and maintained by the Trustee pursuant to
Section 3.04(c) in trust for Certificateholders, which shall be entitled
"LaSalle Bank National Association, as Trustee, in trust for the registered
holders of Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust
2004-GG1, Commercial Mortgage Pass-Through Certificates, Series 2004-GG1."
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for any
Distribution Date that occurs in February of any year and for any Distribution
Date that occurs in January of any year that is not a leap year, an amount equal
to one day's interest accrued at the related Mortgage Rate on the related Stated
Principal Balance as of the Due Date in the month in which such Distribution
Date occurs (but prior to the application of any amounts due on such Due Date),
to the extent that a Monthly Payment is Received in respect thereof for such Due
Date as of the related Determination Date or a P&I Advance is made under this
Agreement in respect thereof for such Due Date by such Distribution Date.
"Interest Reserve Mortgage Loan" shall mean any Mortgage Loan (other
than the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan) that accrues interest on an
Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO Mortgage
Loan that relates to a predecessor Interest Reserve Mortgage Loan.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Grade Certificate" shall mean, as of any date of
determination, a Certificate, other than a Residual Interest Certificate, that
is rated in one of the four highest generic rating categories by at least one
Rating Agency.
"IRS" shall mean the Internal Revenue Service or any successor
agency.
"Late Collections" shall mean: (a) with respect to any Loan, all
amounts Received in connection therewith during any Collection Period, whether
as payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of such Loan due or deemed due on a Due Date in a
previous Collection Period, or on a Due Date coinciding with or preceding the
Cut-off Date, and not previously recovered; and (b) with respect to any REO
Loan, all amounts Received in connection with the related REO Property during
any Collection Period, whether as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of the
predecessor Loan, or the principal and/or interest portions of an Assumed
Monthly Payment in respect of such REO Loan, due or deemed due on a Due Date in
a previous Collection Period and not previously recovered.
"Lead Fiscal Agent" shall mean each of the GCCFC C2 Fiscal Agent and
the GMACCM C3 Fiscal Agent.
"Lead Master Servicer" shall mean each of the GCCFC C2 Master
Servicer, the GMACCM C3 Master Servicer and the GMACCM C2 Master Servicer.
"Lead Special Servicer" shall mean each of the GCCFC C2 Special
Servicer, the GMACCM C3 Special Servicer and the GMACCM C2 Special Servicer.
"Lead PSA" shall mean each of the GCCFC C2 PSA, the GMACCM C3 PSA
and the GMACCM C2 PSA.
"Lead Trustee" shall mean each of the GCCFC C2 Trustee, the GMACCM
C3 Trustee and the GMACCM C2 Trustee.
"Liquidation Event" shall mean: (a) with respect to any Loan, any of
the following events--(i) such Loan is paid in full, (ii) a Final Recovery
Determination is made with respect to such Loan, (iii) such Loan or related Loan
Group Trust Mortgage Loan (or portion thereof with respect to the Water Tower
Place Trust Loan, Southland Mall Mortgage Loan or Deerbrook Mall Mortgage Loan)
is repurchased by the applicable Mortgage Loan Seller pursuant to Section
2.03(a) and the applicable Mortgage Loan Purchase Agreement, (iv) such Loan is
purchased by a Purchase Option Holder or its assignee pursuant to Section 3.19,
(v) such Loan is purchased by the Depositor, the Special Servicer, a Mortgage
Loan Seller, a Controlling Class Certificateholder or the Master Servicer
pursuant to Section 9.01, (vi) such Loan is purchased by the holder of a related
mezzanine loan on behalf of the related Mortgagor in connection with a Loan
default, as set forth in the related intercreditor agreement, or (vii) in the
case of any of the Loan Group Trust Mortgage Loans, such Loan Group Trust
Mortgage Loan is purchased by any related Companion Loan Noteholder (or, in the
case of the 000 Xxxxxx Xxxxxx Pooled Trust Loan, by the Class OEA-B Majority
Holder and/or the Holders of the 000 Xxxxxx Xxxxxx Subordinate Companion Loan)
or its designee pursuant to the related Co-Lender Agreement or the related Lead
PSA; and (b) with respect to any REO Property (and the related REO Loan), any of
the following events--(i) a Final Recovery Determination is made with respect to
such REO Property, or (ii) such REO Property is purchased by the Depositor, the
Special Servicer, a Mortgage Loan Seller, a Controlling Class Certificateholder
or the Master Servicer pursuant to Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Loan or REO Property pursuant to Sections 3.09 or 3.19
(including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain specified events
pursuant to Section 3.11(b).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds and REO Revenues) Received in connection with: (i) the full
or partial liquidation of a Mortgaged Property or other collateral constituting
security for a defaulted Loan, through trustee's sale, foreclosure sale, REO
Disposition or otherwise, exclusive of any portion thereof required to be
released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iii) the
purchase of a Specially Serviced Mortgage Loan by a Purchase Option Holder or
its assignee pursuant to Section 3.19; (iv) the repurchase of a Mortgage Loan by
the applicable Mortgage Loan Seller(s) pursuant to Section 2.03(a) and the
applicable Mortgage Loan Purchase Agreement(s); (v) the purchase of a Mortgage
Loan or REO Property by the Depositor, a Mortgage Loan Seller, the Special
Servicer, a Controlling Class Certificateholder or the Master Servicer pursuant
to Section 9.01; (vi) the purchase of a Loan by the holder of a related
mezzanine loan on behalf of the related Mortgagor in connection with a Loan
default, as set forth in the related intercreditor agreement; or (vii) in the
case of any of the Loan Group Trust Mortgage Loans, the purchase of such
Mortgage Loan by any related Companion Loan Noteholder (or, in the case of the
000 Xxxxxx Xxxxxx Non-Pooled Trust Loan by the Class OEA-B Majority Holder
and/or the holder(s) of the 000 Xxxxxx Xxxxxx Subordinate Companion Loan) or its
designee pursuant to the Co-Lender Agreement or the related Lead PSA.
"Loan" shall mean any Mortgage Loan or Companion Loan.
"Loan Group" shall have the meaning assigned thereto in the
Preliminary Statement (and shall include any successor REO Loans).
"Loan Group Custodial Account" shall mean, with respect to any
Serviced Loan Group, the segregated account or sub-accounts created and
maintained by the Master Servicer pursuant to Section 3.04A on behalf of the
Holders of such Loan Group, which shall be entitled "Wachovia Bank, National
Association, as Master Servicer, in trust for LaSalle Bank National Association,
as Trustee, for the registered holders of Greenwich Capital Commercial Funding
Corp., Commercial Mortgage Trust 2004-GG1, Commercial Mortgage Pass-Through
Certificates, Series 2004-GG1, and COMPANION LOAN NOTEHOLDERS, as their
interests may appear."
"Loan Group Directing Holder" with respect to any Serviced Loan
Group, will be as follows:
o with respect to the 000 Xxxxxx Xxxxxx Loan Group, for so long as (i)
a Control Appraisal Event does not exist and neither the holders of
more than 50% of the principal balance of the related Subordinate
Companion Loan nor the Class OEA-B Majority Holder are Mortgagor
Affiliate Holders, both the holder of such Subordinate Companion
Loan and the Class OEA-B Majority Holder, (ii) if a Control
Appraisal Event does not exist, but either (a) the holders of more
than 50% of the principal balance of the related Subordinate
Companion Loan or (b) the Class OEA-B Majority Holder are Mortgagor
Affiliate Holders, then the one of (a) or (b) that is not a Mortgage
Affiliate Holder or (iii) while a Control Appraisal Event does exist
or if both the holders of more than 50% of the principal balance of
the related Subordinate Companion Loan and the Class OEA-B Majority
Holder are Mortgagor Affiliate Holders, the Controlling Class
Directing Holder;
o with respect to each of the Tier 2 Loan Groups, the Loan Group
Directing Holder shall be the Controlling Class Directing Holder;
o with respect to each of the Tier 3 Loan Groups, the Loan Group
Directing Holder will be the Controlling Class Directing Holder;
For purposes of this definition, in calculating the holders of more
than 50% of a Subordinate Companion Loan, the unpaid principal amount of such
Subordinate Companion Loan held by a Mortgagor Affiliate Holder shall be deemed
to be zero, except with respect to determining whether holders of more 50% of
such Subordinate Companion Loan are not Mortgagor Affiliate Holders.
"Loan Group Mortgaged Property" shall mean any of the properties
securing a Loan Group.
"Loan Group Noteholders" shall mean, with respect to each Loan
Group, the Trustee, as holder of the Mortgage Note or Mortgage Notes for the
related Loan Group Trust Mortgage Loan and the related Companion Loan
Noteholder.
"Loan Group Remittance Amount" shall mean, with respect to any
Master Servicer Remittance Date and each Serviced Loan Group, an amount equal
to: (a) the aggregate amount of (i) all payments and other collections on or
with respect to the applicable Loan Group and the related Mortgaged Property (if
it becomes an REO Property) that (A) were received as of the close of business
on the immediately preceding Determination Date and (B) are on deposit or are
required to be on deposit in the related Loan Group Custodial Account as of
12:00 noon (New York City time) on such Master Servicer Remittance Date,
including any such payments and other collections transferred to the related
Loan Group Custodial Account from the related Loan Group REO Account (if
established), and (ii) any and all P&I Advances made with respect to the Loan
Group Trust Mortgage Loan(s) and the related Pari Passu Companion Loan(s); net
of (b) the portion of the aggregate amount described in clause (a) of this
definition that represents one or more of the following--(i) Monthly Payments
that are due on a Due Date following the end of the related Collection Period,
(ii) any amount payable or reimbursable to any Person from the related Loan
Group Custodial Account pursuant to clauses (ii) through (xv) of Section 3.05A,
and (iii) any amounts deposited in the related Loan Group Custodial Account in
error.
"Loan Group Remittance Date" shall mean, (i) with respect to each
Serviced Companion Loan that is not an asset of a securitization, the Master
Servicer Remittance Date and (ii) in the case of each other Serviced Companion
Loan that is an asset of a securitization, the earlier of (A) the Master
Servicer Remittance Date and (B) the Business Day prior to the date that is the
equivalent to the "Master Servicer Remittance Date" in such securitization but
in no event earlier than the first Business Day following the Determination
Date.
"Loan Group REO Account" shall mean, with respect to each Serviced
Loan Group the segregated account or accounts created and maintained by the
Special Servicer pursuant to Section 3.17 on behalf of the Certificateholders
and the related Companion Noteholders, which shall be entitled "Lennar Partners,
Inc., as Special Servicer, in trust for LaSalle Bank National Association, as
Trustee, for the registered holders of Greenwich Capital Commercial Funding
Corp., Commercial Mortgage Trust 2004-GG1, Commercial Mortgage Pass-Through
Certificates, Series 2004-GG1, and for [NAMES OF COMPANION LOAN NOTEHOLDERS], as
their interests may appear."
"Loan Group REO Property" shall mean the Loan Group Mortgaged
Property, if such Mortgaged Property becomes an REO Property hereunder.
"Loan Group Servicing Reports" shall mean, with respect to any
Serviced Loan Group, each of the CMSA Delinquent Loan Status Report, CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, CMSA Historical
Liquidation Report, CMSA REO Status Report, Loan Payoff Notification Report,
CMSA Loan Periodic Update File, CMSA Property File, CMSA Loan Level Reserve/LOC
Report, CMSA Financial File, CMSA Loan Setup File, CMSA Servicer Watch List,
CMSA Operating Statement Analysis Report, CMSA NOI Adjustment Worksheet and CMSA
Comparative Financial Status Report, each as may be modified to reflect the fact
that a single Mortgaged Property or REO Property, as the case may be, is the
subject of such report.
"Loan Group Trust Mortgage Loan" shall mean, with respect to any
Loan Group, the portion of such Loan Group that is a Mortgage Loan in the Trust.
"Loan Payoff Notification Report" shall mean a report containing
substantially the information described in Exhibit E attached hereto, and
setting forth for each Serviced Loan as to which written notice of anticipated
payoff has been received by the Master Servicer as of the Determination Date
preceding the delivery of such report, among other things, the mortgage loan
number, the property name, the ending scheduled loan balance for the Collection
Period ending on such Determination Date, the expected date of payment, the
expected related Distribution Date and the estimated amount of the Yield
Maintenance Charge or Prepayment Premium due (if any).
"Loan REMIC" shall mean each of the REMICs that were created by the
Loan REMIC Declarations and that are constituted by the DDR Portfolio Trust
Loan, Xerox Headquarters Mortgage Loan and 1801 K Street Trust Loan,
respectively, proceeds thereof, the applicable portion of the related REO
Property or a beneficial interest in the "REO Property" under the GMACCM C2 PSA,
this Agreement or the GCCFC C2 PSA, respectively, and amounts with respect
thereto held in the Collection Account and the REO Account.
"Loan REMIC Balance" shall mean, with respect to each Loan REMIC
Regular Interest, as of the Cut-off Date, an amount equal to (i) $48,819,646.98
with respect to the DDR Portfolio Trust Loan, (ii) $35,783,185.57 with respect
to the Xerox Headquarters Mortgage Loan and (iii) $12,371,875.00 with respect to
the 1801 K Street Trust Loan and from time to time, an amount equal to such
amounts reduced by the amount of distributions of principal and losses incurred
with respect of the related Loan REMIC Loan.
"Loan REMIC Declaration" shall have the meaning assigned thereto in
the Preliminary Statement.
"Loan REMIC Interests" shall mean any Loan REMIC Regular Interest
and any Loan REMIC Residual Interest.
"Loan REMIC Loan" shall mean each of the DDR Portfolio Trust Loan,
Xerox Headquarters Mortgage Loan and 1801 K Street Trust Loan.
"Loan REMIC Regular Interest" shall mean the uncertificated "regular
interest," within the meaning of Code Section 860G(a)(1), in each Loan REMIC.
The principal balance of each Loan REMIC Regular Interest shall equal the
outstanding Stated Principal Balance of the related Loan REMIC Loan (or, if
applicable, the deemed Stated Principal Balance of any successor REO Mortgage
Loan). Payments of principal, interest (including Default Interest) and
prepayment premiums received on or in respect of such Loan REMIC Loan (or any
amount with respect to any related REO Property) shall be deemed distributable
on the related Loan REMIC Regular Interest and other collections of amounts
received on or in respect of such Loan REMIC Loan shall be deemed distributable
to the Trust Fund other than on the related Loan REMIC Regular Interest.
"Loan REMIC Residual Interest" shall mean the sole class of
"residual interest," within the meaning of Code Section 860G(a)(2), in each Loan
REMIC. Each Loan REMIC Residual Interest shall be represented by the Class R-I
Certificates and beneficially owned by the Holders of the Class R-I
Certificates.
"Lockout Period" shall mean, with respect to any Loan that prohibits
the Mortgagor from prepaying such loan until a date specified in the related
Mortgage Note or other Loan document, the period from the Closing Date until
such specified date.
"Loss Reimbursement Amount" shall mean:
(a) 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; and
(b) with respect to any Lower-Tier Regular Interest, for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) the Lower-Tier
REMIC with respect to such Lower-Tier Regular Interest on all prior
Distribution Dates, if any.
For purposes of this definition: (x) any increase in the Class
Principal Balance of any Class of Principal Balance Certificates pursuant to
Section 4.05(a) shall constitute a reimbursement to the Holders of such Class of
Principal Balance Certificates of any related Unfunded Principal Balance
Reductions; and (y) any increase in the Lower-Tier Interest Principal Balance of
any Lower-Tier Regular Interest pursuant to Section 4.05(c) shall constitute a
reimbursement to the Lower-Tier REMIC with respect to any related Unfunded
Principal Balance Reductions relating to such Lower-Tier Regular Interest.
"Lower-Tier Distribution Account" shall mean the sub-account deemed
to be a part of the Distribution Account and maintained by the Trustee pursuant
to Section 3.04(b).
"Lower-Tier Distribution Amount" shall mean the aggregate of amounts
distributable to the Uncertificated Lower-Tier Interests pursuant to Section
4.01(i).
"Lower-Tier Interest Principal Reinstatement Amount" shall have the
meaning assigned thereto pursuant to Section 4.05(c).
"Lower-Tier REMIC" shall mean the segregated pool of assets
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made, and consisting
of: (i) the Mortgage Loans (excluding each Loan REMIC Loan) as from time to time
are subject to this Agreement and all payments under and proceeds of such
Mortgage Loans received by the Trust after the Closing Date, together with all
documents included in the related Mortgage Files; (ii) each Loan REMIC Regular
Interest and any collections thereon, (iii) any REO Properties as from time to
time are subject to this Agreement and all income and proceeds therefrom (to the
extent not allocable to a Companion Loan) and a beneficial interest in the
applicable portion of the "REO Property" under the Lead PSA for the Non-Serviced
Trust Loans (other than the DDR Portfolio Trust Loan and the 1801 K Street Trust
Loan, which are assets of the related Loan REMIC); and (iv) such funds or assets
as from time to time are deposited in the Pool Custodial Account, each Loan
Group Custodial Account (to the extent related to the Serviced Mortgage Loans
(other than the Xerox Headquarters Mortgage Loan)), the Lower-Tier Distribution
Account, the Class OEA-B Sub-Account, the Interest Reserve Account and, if
established, the Pool REO Account and each Loan Group REO Account (to the extent
related to the Serviced Mortgage Loans (other than the Xerox Headquarters
Mortgage Loan)).
"Master Servicer" shall mean Wachovia Bank, National Association, in
its capacity as master servicer hereunder, or any successor master servicer
appointed as herein provided.
"Master Servicer Class OEA-B Remittance Amount" shall mean, with
respect to any Master Servicer Remittance Date, the portion of the Loan Group
Remittance Amount for the 000 Xxxxxx Xxxxxx Loan Group equal to: (a) the
aggregate amount of all payments and other collections on or with respect to the
000 Xxxxxx Xxxxxx Non-Pooled Trust Loan and any related REO Property that (A)
were Received as of the close of business on the immediately preceding
Determination Date and (B) are on deposit or are required to be on deposit in
the related Loan Group Custodial Account as of 12:00 noon (New York City time)
on such Master Servicer Remittance Date, including any such payments and other
collections transferred to the related Loan Group Custodial Account from the
related Loan Group REO Account (if established); net of (b) the portion of the
aggregate amount described in clause (a) of this definition that represents one
or more of the following--(i) Monthly Payments that are due on a Due Date
following the end of the related Collection Period (except if such Master
Servicer Remittance Date relates to the Final Distribution Date), (ii) any
amount payable or reimbursable to any Person from the related Loan Group
Custodial Account pursuant to clauses (ii) through (xvi) of Section 3.05A(a)
that is allocable to the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan in accordance
with the terms of the related Co-Lender Agreement, (iii) any Excess Liquidation
Proceeds and (iv) any amounts deposited in the related Loan Group Custodial
Account in error.
"Master Servicer Remittance Amount" shall mean, with respect to any
Master Servicer Remittance Date, an amount equal to: (a) the aggregate amount of
all payments and other collections on or with respect to the Serviced Mortgage
Loans and the Non-Serviced Trust Loans and any related REO Properties (excluding
any amounts that relate to the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan, but
including with respect to the Non-Serviced Trust Loans, all payments remitted
by, or advances made by, the applicable Lead Master Servicer) that (A) were
Received as of the close of business on the immediately preceding Determination
Date (or in the case of the Non-Serviced Trust Loans, as of 12:00 noon (New York
City time) on the Master Servicer Remittance Date) and (B) are on deposit or are
required to be on deposit in the Pool Custodial Account as of 12:00 noon (New
York City time) on such Master Servicer Remittance Date, including any such
payments and other collections transferred to the Pool Custodial Account from
the Pool REO Account (if established); net of (b) the portion of the aggregate
amount described in clause (a) of this definition that represents one or more of
the following--(i) Monthly Payments that are due on a Due Date following the end
of the related Collection Period, (ii) any amount payable or reimbursable to any
Person from the Pool Custodial Account pursuant to clauses (ii) through (xviii)
of Section 3.05(a), (iii) any Excess Liquidation Proceeds and (iv) any amounts
deposited in the Pool Custodial Account in error.
"Master Servicer Remittance Date" shall mean the date each month,
commencing in June 2004, on which, among other things, the Master Servicer is
required to (i) make P&I Advances and (ii) transfer the Master Servicer
Remittance Amount, the Master Servicer Class OEA-B Remittance Amount and any
Excess Liquidation Proceeds to the Trustee, which date shall be the Business Day
immediately preceding each Distribution Date.
"Master Servicing Fee" shall mean, with respect to each Serviced
Loan and the Non-Serviced Trust Loans (and, in each case, any successor REO Loan
with respect thereto), the fee designated as such and payable to the Master
Servicer pursuant to Section 3.11(a). The Master Servicing Fee includes any
servicing fee rate payable to any third-party servicers that sub-service or
primary service the loans on behalf of the Master Servicer, but does not include
any primary servicing fee payable with respect to a Non-Serviced Trust Loan to
the applicable Lead Master Servicer under the applicable Lead PSA.
"Master Servicing Fee Rate" shall mean, with respect to each
Serviced Loan and the Non-Serviced Trust Loans and any successor REO Loan, the
rate per annum specified as such on the Mortgage Loan Schedule. With respect to
each Loan Group, the Master Servicing Fee Rate for the related Mortgage Loan may
be different than the Master Servicing Fee Rate for the related Companion Loan,
as more particularly set forth on the Mortgage Loan Schedule.
"Material Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Material Document Defect" shall have the meaning assigned thereto
in Section 2.03(a).
"Modified Loan" shall mean any Serviced Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.21 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Loan);
(b) except as expressly contemplated by the related Loan documents,
results in a release of the lien of the related Mortgage on any material
portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount, or the delivery of substitute real
property collateral with a fair market value (as is), that is not less
than the fair market value (as is) of the property to be released, as
determined by an appraisal delivered to the Special Servicer (at the
expense of the related Mortgagor and upon which the Special Servicer may
conclusively rely); or
(c) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Loan or materially
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Additional Report on Recoveries and Reimbursements" shall
mean, with respect to the Collection Period immediately prior to the related
Determination Date, a report, in a format reasonably acceptable to the Master
Servicer, the Special Servicer, the Trustee and the Fiscal Agent that identifies
the following with respect to such Collection Period, in all cases both on a
loan-by-loan basis and in the aggregate:
(a) the amount of any Advance (and accrued and unpaid interest
thereon) that became a Workout-Delayed Reimbursement Amount during such
period;
(b) (i) the amount of any Workout-Delayed Reimbursement Amount that
was reimbursed to the Master Servicer, the Special Servicer, the Trustee
or the Fiscal Agent during such period, (ii) the extent to which any
reimbursement of a Workout-Delayed Reimbursement Amount made during such
period was made from principal collections received during such period as
contemplated by subsection (vii) of Section 3.05(a), and (iii) the amount
of any related Unliquidated Advances;
(c) the amount of any Unliquidated Advances recovered from the
related Mortgagor or otherwise from the proceeds of the related Mortgage
Loan or REO Property on behalf of the Trust during such Collection Period;
(d) (i) the amount of any Unliquidated Advance that became a
Nonrecoverable Advance in such Collection Period, and (ii) the amount of
any Workout-Delayed Reimbursement Amount that arose in a prior such
period, was not reimbursed to the Master Servicer, the Special Servicer,
the Trustee or the Fiscal Agent in such Collection Period or a prior such
Collection Period (and therefore had not become an Unliquidated Advance)
but which has become a Nonrecoverable Advance in such Collection Period;
(e) the amount of any Advance (and accrued and unpaid interest
thereon), other than an amount described in clause (d) above, that became
a Nonrecoverable Advance during such Collection Period;
(f) (i) the amount of any Nonrecoverable Advance (and accrued and
unpaid interest thereon) that was reimbursed to the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent during the Collection
Period immediately prior to the related Determination Date, and (ii) the
extent (if any) to which any reimbursement of a Nonrecoverable Advance
(and accrued interest thereon) was made from principal collections on the
Mortgage Loans received during such period as contemplated by subsection
(vii) of Section 3.05(a);
(g) the amount of any Advance reimbursed to the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent as a Nonrecoverable
Advance in a prior Collection Period but recovered from the related
Mortgagor or otherwise from the proceeds of the related Mortgage Loan or
REO Property on behalf of the Trust during such Collection Period
(notwithstanding that it was previously determined to constitute a
Nonrecoverable Advance); and
(h) a reconciliation of interest on Advances accrued on any
Workout-Delayed Reimbursement Amount or any Nonrecoverable Advance, any
Default Charges collected during such Collection Period and the amount of
Default Charges that were applied to pay or reimburse interest on
Advances.
The preparation of each Monthly Additional Report on Recoveries and
Reimbursements shall constitute a responsibility of the Master Servicer and
shall not constitute a responsibility of any other party. Each CMSA Loan
Periodic Update File prepared by the Master Servicer shall be accompanied by a
Monthly Additional Report on Recoveries and Reimbursements; provided, however,
that the Master Servicer shall not be responsible for preparing a Monthly
Additional Report on Recoveries and Reimbursements in any month in which there
is no Unliquidated Advance or Workout-Delayed Reimbursement Amount outstanding.
The Master Servicer will not be required to prepare a Monthly Additional Report
on Recoveries and Reimbursements if (A) (1) the CMSA adopts a form of report
that incorporates information that is substantially similar to the information
set forth above and (2) the Master Servicer prepares and delivers such CMSA
report or (B) (1) the CMSA adopts revisions to one or more reports or files in
the CMSA Investor Reporting Package to include information in the Monthly
Additional Report on Recoveries and Reimbursements and (2) the Master Servicer
prepares and delivers such reports and/or files as revised.
"Monthly Payment" shall mean, with respect to any Loan, as of any
Due Date, the scheduled monthly debt service payment on such Loan that is
actually payable by the related Mortgagor from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, extension, waiver or amendment granted
or agreed to by the Special Servicer pursuant to Section 3.21), including any
Balloon Payment payable in respect of such Loan on such Due Date; provided that
the Monthly Payment due in respect of any Loan shall not include Default
Interest.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its
successor in interest. If neither such rating agency nor any successor remains
in existence, "Moody's" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, and specific ratings
of Xxxxx'x Investors Service, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Mortgage" shall mean, with respect to any Loan, the mortgage, deed
of trust, deed to secure debt or similar instrument that secures the related
Mortgage Note and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean:
(a) with respect to any Mortgage Loan and, in the case of any Loan
Group, any Companion Loan, the following documents collectively (which, in
the case of a Loan Group, except for the Mortgage Note referred to in
clause (i) and clause (vi) of this definition, relates to an entire Loan
Group):
(i) (A) the original executed Mortgage Note for such Mortgage
Loan, endorsed (without recourse, representation or warranty,
express or implied) to the order of "LaSalle Bank National
Association, as trustee for the registered holders of Greenwich
Capital Commercial Funding Corp., Commercial Mortgage Trust
2004-GG1, Commercial Mortgage Pass-Through Certificates, Series
2004-GG1" or in blank, and further showing a complete, unbroken
chain of endorsement from the originator or, in the case of the
Water Tower Place Trust Loan, the Southland Mall Mortgage Loan and
the Deerbrook Mall Mortgage Loan, the originators (if such
originator is not the Mortgage Loan Seller) (or, alternatively, if
the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note), and (B)
in the case of a Loan Group, a copy of the executed Mortgage Note
for the related Companion Loan;
(ii) an original or copy of the Mortgage, together with
originals or copies of any and all intervening assignments thereof,
in each case (unless the particular item has not been returned from
the applicable recording office) with evidence of recording
indicated thereon;
(iii) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together
with originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of
recording indicated thereon;
(iv) an original executed assignment, in recordable form
(except for recording information not yet available if the
instrument being assigned has not been returned from the applicable
recording office), of (A) the Mortgage and (B) any related
Assignment of Leases (if such item is a document separate from the
Mortgage), in favor of "LaSalle Bank National Association, in its
capacity as trustee for the registered holders of Greenwich Capital
Commercial Funding Corp., Commercial Mortgage Trust 2004-GG1,
Commercial Mortgage Pass-Through Certificates, Series 2004-GG1" (or,
in each case, a copy thereof, certified to be the copy of such
assignment submitted for recording);
(v) an original or copy of the assignment of all unrecorded
documents relating to the Mortgage Loan, in favor of "LaSalle Bank
National Association, as trustee for the registered holders of
Greenwich Capital Commercial Funding Corp., Commercial Mortgage
Trust 2004-GG1, Commercial Mortgage Pass-Through Certificates,
Series 2004-GG1";
(vi) originals or copies of final written modification
agreements in those instances where the terms or provisions of the
Mortgage Note for such Mortgage Loan (or, if applicable, either
Mortgage Note of a Loan Group) or the related Mortgage have been
modified as to a monetary term or other material term thereof, in
each case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon if the instrument being modified is a recordable document;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage
Loan (or, if such policy has not been issued, a "marked-up" pro
forma title policy marked as binding and countersigned by the title
insurer or its authorized agent, or an irrevocable, binding
commitment to issue such title insurance policy);
(viii) filed copies (with evidence of filing) of any prior
effective UCC Financing Statements in favor of the originator of
such Mortgage Loan or in favor of any assignee prior to the Trustee
(but only to the extent the applicable Mortgage Loan Seller had
possession of such UCC Financing Statements prior to the Closing
Date) and an original UCC-2 or UCC-3 assignment thereof, as
appropriate, in form suitable for filing, in favor of "LaSalle Bank
National Association, in its capacity as trustee for the registered
holders of Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust 2004-GG1, Commercial Mortgage Pass-Through
Certificates, Series 2004-GG1";
(ix) an original or copy of the related Ground Lease relating
to such Mortgage Loan, if any;
(x) an original or copy of the related loan agreement, if any;
(xi) an original of the related guaranty of payment under, or
an original of the letter of credit (which original shall be
delivered by the Trustee to the Master Servicer with a copy
retained) in connection with, such Mortgage Loan, if any;
(xii) an original or copy of the lock-box agreement or cash
management agreement relating to such Mortgage Loan, if any;
(xiii) an original or copy of the environmental indemnity from
the related Mortgagor, if any;
(xiv) an original or copy of the related security agreement
(if such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments
thereof;
(xv) an original assignment of the related security agreement
(if such item is a document separate from the Mortgage and if such
item is not included in the assignment described in clause (v)), in
favor of "LaSalle Bank National Association, in its capacity as
trustee for the registered holders of Greenwich Capital Commercial
Funding Corp., Commercial Mortgage Trust 2004-GG1, Commercial
Mortgage Pass-Through Certificates, Series 2004-GG1";
(xvi) in the case of a Loan Group, a copy of the related
Co-Lender Agreement;
(xvii) in the case of any Loan as to which there exists a
related mezzanine loan, the original or a copy of the related
intercreditor agreement;
(xviii) an original or copy of any related Environmental
Insurance Policy;
(xix) with respect to hospitality properties, a signed copy of
the franchise agreement (if any), franchisor comfort letter (if any)
and transfer documents for such comfort letter; and
(xx) with respect to the transfer described in Section 2.01,
the originals or copies of the Loan REMIC Declarations;
provided that whenever the term "Mortgage File" is used to refer to
documents actually received by the Trustee or by a Custodian on its behalf, such
term shall not be deemed to include such documents required to be included
therein unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (a)(vi) and (a)(ix) through (a)(xviii) of this definition,
shall be deemed to include such documents only to the extent the Trustee or a
Custodian on its behalf has actual knowledge of their existence; provided,
further, with respect to the Non-Serviced Trust Loans, the preceding delivery
requirements with respect to clause (a)(i) of this definition will be satisfied
by delivery of the original Mortgage Note (and all intervening endorsements) and
with respect to clauses (a)(ii) through (a)(xix) of this definition by delivery
by the applicable Mortgage Loan Seller of copies of the "mortgage file"
delivered under the applicable Lead PSA.
With respect to the Water Tower Place Trust Loan, the Southland Mall
Mortgage Loan and the Deerbrook Mall Mortgage Loan, the delivery of the Mortgage
File by either Commerzbank or GSMC shall satisfy the delivery requirements for
both Commerzbank and GSMC.
"Mortgage Loan" shall mean each of the mortgage loans listed on the
Mortgage Loan Schedule and from time to time held in the Trust Fund. As used
herein, the term "Mortgage Loan" includes the related Mortgage Note(s), Mortgage
and other security documents contained in the related Mortgage File or otherwise
held on behalf of the Trust. The term "Mortgage Loan" includes the "Loan Group
Trust Mortgage Loan" portion of each Loan Group, but does not include any
Companion Loans.
"Mortgage Loan Purchase Agreement" shall mean the Mortgage Loan
Purchase Agreement dated as of May 13, 2004 and entered into by and between the
Depositor and the applicable Mortgage Loan Seller.
"Mortgage Loan Schedule" shall mean the list of Mortgage Loans
transferred on the Closing Date to the Trustee as part of the Trust Fund,
attached hereto as Schedule I (and also delivered to the Trustee and the Master
Servicer in a computer readable format). Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code)
and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due
Date following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate, and (B) Master
Servicing Fee Rate (separately identifying any primary servicing fee
rate or subservicing fee rate included in the Master Servicing Fee
Rate, and in the case of each Loan Group, separately identifying the
Master Servicing Fee Rate applicable to each Loan in such Loan
Group);
(x) whether the Mortgage Loan is secured by a Ground Lease;
(xi) the Mortgage Loan Seller(s);
(xii) the originator (or in the case of the Water Tower Place
Trust Loan, the Deerbrook Mall Mortgage Loan and the Southland Mall
Loan, the originators);
(xiii) whether the related Mortgage Loan is a Defeasance Loan;
(xiv) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and the Cross-Collateralized Group to which it
belongs; and
(xv) whether such Mortgage Loan is part of a Serviced Loan
Group, in which case the information required by clauses (iii),
(iv), (v), (vi), (vii), (viii) and (ix)(B) shall also be set forth
for the Companion Loan in such Loan Group.
"Mortgage Loan Sellers" shall mean each of Greenwich Capital
Financial Products, Inc., GSMC and Commerzbank.
"Mortgage Note" shall mean the original executed note or notes
evidencing the indebtedness of a Mortgagor under a Mortgage Loan, together with
any rider, addendum or amendment thereto, or any renewal, substitution or
replacement of such note or notes.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Mortgage Loans, in each case other than the 000 Xxxxxx Xxxxxx
Non-Pooled Trust Loan, collectively. The Mortgage Pool does not include any
Companion Loan or any related REO Loan or the 000 Xxxxxx Xxxxxx Non-Pooled Trust
Loan or any related REO Loan.
"Mortgage Pool Data Update Report" shall mean, with respect to any
Distribution Date, a report (which may be included as part of the Distribution
Date Statement), prepared by the Trustee, containing information regarding the
Loans as of the end of the related Collection Period, which report shall contain
substantially the categories of information regarding the Loans set forth on
Annex A to the Prospectus Supplement (calculated, where applicable, on the basis
of the most recent relevant information provided by the Mortgagors to the Master
Servicer or the Special Servicer, as the case may be, and by the Master Servicer
or the Special Servicer, as the case may be, to the Trustee), and which
information shall be presented in tabular format substantially similar to the
format utilized on such annex and shall also include a loan-by-loan listing (in
descending balance order) showing loan number, property type, location, unpaid
principal balance, Mortgage Rate, paid-through date, maturity date, gross
interest portion of the Monthly Payment, principal portion of the Monthly
Payment, and any Prepayment Premium or Yield Maintenance Charge received.
"Mortgage Rate" shall mean, with respect to each Loan (and any
successor REO Loan with respect thereto), the related annualized rate at which
interest is scheduled (in the absence of a default) to accrue on such Loan from
time to time in accordance with the related Mortgage Note and applicable law, as
such rate may be modified in accordance with Section 3.21 or in connection with
a bankruptcy, insolvency or similar proceeding involving the related Mortgagor.
Notwithstanding the foregoing, if any Mortgage Loan (other than the 000 Xxxxxx
Xxxxxx Non-Pooled Trust Loan) does not accrue interest on the basis of a 360 day
year consisting of twelve 30-day months, then, solely for purposes of
calculating Pass-Through Rates (and the rate of the related Loan REMIC Regular
Interest in the case of each Loan REMIC Loan), the Mortgage Rate of such
Mortgage Loan for any one-month period preceding a related Due Date shall be the
annualized rate at which interest would have to accrue in respect of such
Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day months
in order to produce the aggregate amount of interest actually accrued (exclusive
of Default Interest) in respect of such Mortgage Loan during such one-month
period at the related Mortgage Rate; provided, however, that with respect to any
Mortgage Loan (other than the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan) or
related Loan REMIC Regular Interest accruing interest based on a 360-day year
and the actual number of days elapsed, the Mortgage Rate for (A) the one month
period preceding the Due Dates that occur in January and February in any year
that is not a leap year or the one month period preceding the Due Date that
occurs in February in any year that is a leap year will be determined exclusive
of the Interest Reserve Amount withheld from that month, and (B) preceding the
Due Date in March will be determined inclusive of the amounts withheld from the
immediately preceding February and, if applicable, January.
"Mortgaged Property" shall mean the real property (together with all
improvements and fixtures thereon) subject to the lien of a Mortgage.
"Mortgagor" shall mean, individually and collectively, as the
context may require, the obligor or obligors under a Loan, including any Person
that has not signed the related Mortgage Note but owns an interest in the
related Mortgaged Property, which interest has been encumbered to secure such
Loan.
"Mortgagor Affiliate Holder" shall mean any Companion Loan
Noteholder or Certificateholder that is a Mortgagor or an Affiliate of the
Mortgagor (including any Companion Loan Noteholder, its Affiliate, a
Certificateholder or its Affiliate, in each case, that was a lender of the
Mortgagor and has foreclosed on the equity interests in the Mortgagor or any
Companion Loan Noteholder or Certificateholder that acquires, directly or
through an Affiliate, a direct equity interest in the Mortgaged Property).
"Mountain Lodge Apartments Loan Group" shall have the meaning
assigned thereto in the Preliminary Statement.
"Mountain Lodge Apartments Subordinate Companion Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
"Mountain Lodge Apartments Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Net Aggregate Prepayment Interest Shortfall" shall mean, with
respect to any Distribution Date and any Serviced Mortgage Loan (other than the
000 Xxxxxx Xxxxxx Non-Pooled Trust Loan), the amount, if any, by which (a) the
aggregate of all Prepayment Interest Shortfalls incurred in connection with the
receipt of Principal Prepayments and/or, insofar as they result from the
application of Insurance Proceeds and/or Condemnation Proceeds, other early
recoveries of principal Received on such Mortgage Loans (including Specially
Serviced Mortgage Loans) during the related Collection Period, exceeds (b) the
aggregate amount deposited by the Master Servicer in the Distribution Account
for such Distribution Date pursuant to Section 3.20(a) in connection with such
Prepayment Interest Shortfalls.
"Net Default Charges" shall have the meaning assigned thereto in
Section 3.27(a).
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period on funds
held in such Investment Account (exclusive, in the case of a Servicing Account,
a Reserve Account or the Defeasance Deposit Account, of any portion of such
interest or other income payable to a Mortgagor in accordance with the related
Loan documents and applicable law), exceeds the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of such
funds in accordance with Section 3.06 (exclusive, in the case of a Servicing
Account, a Reserve Account or the Defeasance Deposit Account, of any portion of
such losses that were incurred in connection with investments made for the
benefit of a Mortgagor).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any Collection Period, the amount by which the aggregate of all
losses, if any, incurred during such Collection Period in connection with the
investment of funds held in such Investment Account in accordance with Section
3.06 (exclusive, in the case of a Servicing Account, a Reserve Account or the
Defeasance Deposit Account, of any portion of such losses that were incurred in
connection with investments made for the benefit of a Mortgagor), exceeds the
aggregate of all interest and other income realized during such Collection
Period on such funds (exclusive, in the case of a Servicing Account, a Reserve
Account or the Defeasance Deposit Account, of any portion of such interest or
other income payable to a Mortgagor in accordance with the related Loan
documents and applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Specially Serviced Loan or REO
Property, over the amount of all Liquidation Expenses incurred with respect
thereto.
"Net Mortgage Rate" shall mean with respect to any Mortgage Loan or
REO Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate then in effect, minus the Administrative Cost Rate; provided,
however, that for purposes of calculating Pass-Through Rates, the Net Mortgage
Rate for any Mortgage Loan will be determined without regard to any
modification, waiver or amendment of the terms of such Mortgage Loan, whether
agreed to by the Master Servicer or Special Servicer or resulting from a
bankruptcy, insolvency or similar proceeding involving the Mortgagor.
"Net OEA-B Prepayment Interest Shortfall" shall mean, with respect
to any Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments and/or, insofar as they result from the application of
Insurance Proceeds and/or Condemnation Proceeds, other early recoveries of
principal Received on the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan (including if
such Loan is a Specially Serviced Mortgage Loan) during the related Collection
Period, exceeds (b) the aggregate amount deposited by the Master Servicer in the
Class OEA-B Sub-Account for such Distribution Date pursuant to Section 3.19(a)
in connection with such Prepayment Interest Shortfalls.
"Net Prepayment Consideration" shall mean the Prepayment
Consideration Received with respect to any Mortgage Loan or REO Mortgage Loan,
net of any Workout Fee or Liquidation Fee payable therefrom.
"New Lease" shall mean any lease of REO Property entered into at the
direction of the Special Servicer, including any lease renewed, modified or
extended on behalf of the Trustee and, in the case of any Serviced Loan Group,
the related Companion Loan Noteholder, if the Trust has the right to renegotiate
the terms of such lease.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance. Workout-Delayed Reimbursement Amounts shall
constitute a Nonrecoverable Advance only when the Person making such
determination in accordance with the procedures specified in the definition of
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as applicable,
and taking into account factors such as all other outstanding Advances, either
(a) has determined that such Workout-Delayed Reimbursement Amounts, would not
ultimately be recoverable from Late Collections or any other recovery on or in
respect of the related Mortgage Loan or Loan Group or REO Loans, or (b) has
determined that such Workout-Delayed Reimbursement Amount, along with any other
Workout-Delayed Reimbursement Amounts (that have not been reimbursed to the
party that made such Advance) or unreimbursed Nonrecoverable Advances, would not
be ultimately recoverable from the principal portion of future general
collections on the Mortgage Loans and REO Properties. Any determination as to
whether an Advance is or, if made, would be a Nonrecoverable Advance, if made by
the Master Servicer or the Special Servicer shall be made in accordance with the
Servicing Standard and if made by the Trustee or the Fiscal Agent shall be made
in such party's reasonable, good faith judgment.
"Nonrecoverable P&I Advance" shall mean with respect to any Mortgage
Loan or any Pari Passu Companion Loan, any P&I Advance previously made or
proposed to be made in respect of such Loan or a related REO Loan by the Master
Servicer, the Trustee, the Fiscal Agent or any Other Backup Advancer, or in the
case of the 000 Xxxx Xxxxxx Xxxxx Xxxx, Xxxxx Fargo Tower Trust Loan and the
1801 K Street Trust Loan, made by the GCCFC C2 Master Servicer, the Master
Servicer, the Trustee or the Fiscal Agent, which P&I Advance such party or the
Special Servicer has determined will not be ultimately recoverable from late
payments, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds, or
any other recovery on or in respect of such Mortgage Loan, Loan Group or REO
Loan, as the case may be. Any determination as to whether an Advance is or, if
made, would be a Nonrecoverable Advance, if made by the Master Servicer or the
Special Servicer shall be made in accordance with the Servicing Standard and if
made by the Trustee or the Fiscal Agent shall be made in such party's
reasonable, good faith judgment.
"Nonrecoverable Servicing Advance" shall mean any Servicing Advance
previously made or proposed to be made in respect of a Loan or REO Property by
the Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent or any
Other Backup Advancer, or in the case of the 000 Xxxx Xxxxxx Xxxxx Xxxx, Xxxxx
Fargo Tower Trust Loan and the 1801 K Street Trust Loan, made by the GCCFC C2
Master Servicer, the GCCFC C2 Special Servicer, the GCCFC C2 Trustee or the
GCCFC C2 Fiscal Agent, which Servicing Advance such party or the Special
Servicer has determined will not be ultimately recoverable from late payments,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, or any other
recovery on or in respect of such Loan or REO Property, as the case may be. Any
Servicing Advance that is not (i) required to be repaid by the related Mortgagor
under the terms of the related Mortgage Loan documents or (ii) cannot be
collected from the Mortgagor under applicable law shall be deemed to be a
Nonrecoverable Advance for purposes of the Master Servicer's, the Special
Servicer's, the Trustee's or the Fiscal Agent's entitlement to reimbursement for
such Advance. Any determination as to whether an Advance is or, if made, would
be a Nonrecoverable Advance, if made by the Master Servicer or the Special
Servicer shall be made in accordance with the Servicing Standard and if made by
the Trustee or the Fiscal Agent shall be made in such party's reasonable, good
faith judgment.
"Non-Registered Certificate" shall mean any Certificate that has not
been the subject of registration under the Securities Act. As of the Closing
Date, the Class XP, Class XC, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class P, Class OEA-B1, Class OEA-B2, Class R-I and
Class R-II Certificates are Non-Registered Certificates.
"Non-Serviced Companion Loan" shall mean each of the Xxxxx Fargo
Tower Companion Loans, the 000 Xxxx Xxxxxx Companion Loans, Water Tower Place
Companion Loans, the DDR Portfolio Companion Loans, the 5 Houston Center
Companion Loan and the 1801 K Street Companion Loan.
"Non-Serviced Loan Group" shall mean, individually or collectively,
as applicable, the Xxxxx Fargo Tower Loan Group, the 000 Xxxx Xxxxxx Loan Group,
the Water Tower Place Loan Group, the DDR Portfolio Loan Group, the 5 Houston
Center Loan Group and the 1801 K Street Loan Group.
"Non-Serviced Trust Loan" shall mean each of the Xxxxx Fargo Tower
Trust Loan, the 000 Xxxx Xxxxxx Trust Loan, the Water Tower Place Trust Loan,
the 5 Houston Center Trust Loan, the DDR Portfolio Trust Loan and the 0000 X
Xxxxxx Xxxxx Xxxx.
"Xxx-Xxxxxx Xxxxxx Tax Person" shall mean any Person other than a
United States Tax Person.
"Notional Amount" means, as of any date of determination: (i) with
respect to all of the Class XP or Class XC Certificates as a Class, Class XP
Notional Amount or Class XC Notional Amount, as applicable, as of such date of
determination; and (ii) with respect to any Class XP or Class XC Certificate,
the product of the Percentage Interest evidenced by such Certificate and the
Class XP Notional Amount or Class XC Notional Amount, as applicable, as of such
date of determination.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer or the Special Servicer, as the case
may be or by a Responsible Officer of the Trustee or the Fiscal Agent, as the
case may be, and shall mean with respect to any other Person, a certificate
signed by any of the Chairman of the Board, the Vice Chairman of the Board, the
President, any Vice President or Managing Director, an Assistant Vice President
or any other authorized officer (however denominated) or another officer
customarily performing functions similar to those performed by any of the above
designated officers or, with respect to a particular matter, any other officer
to whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may, without limitation, be salaried counsel for the Depositor, the Master
Servicer or the Special Servicer, acceptable in form and delivered to the
Trustee or any other specified Person, as the case may be, except that any
opinion of counsel relating to (a) the qualification of the Lower-Tier REMIC,
any Loan REMIC or the Upper-Tier REMIC as a REMIC, (b) compliance with the REMIC
Provisions, (c) whether any act or event would cause an Adverse REMIC Event, or
(e) the resignation of the Master Servicer or the Special Servicer pursuant to
this Agreement, must be a written opinion of Independent counsel acceptable to
and delivered to the Trustee or any other specified Person, as the case may be.
"Original Lower-Tier Principal Amount" shall mean the amount set
forth under the column bearing such title in the table in the Preliminary
Statement hereto.
"Original Class Principal Balance" shall mean, with respect to any
Class of Principal Balance Certificates, the initial Class Principal Balance
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"Other Backup Advancer" means, with respect to the 000 Xxxxxx Xxxxxx
Loan Group, any servicer or trustee with respect to any Companion Loan
Securities relating to the 000 Xxxxxx Xxxxxx Pari Passu Companion Loans that has
made P&I Advances on such 000 Xxxxxx Xxxxxx Pari Passu Companion Loans upon the
failure of the Master Servicer to make such Advances when required hereby.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" shall mean, as to any Certificate, any
ownership or security interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"Palisades I Office Building Loan Group" shall have the meaning
assigned thereto in the Preliminary Statement.
"Palisades I Office Building Subordinate Companion Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
"Palisades I Office Building Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"P&I Advance" shall mean, as to any Mortgage Loan (excluding the 000
Xxxxxx Xxxxxx Non-Pooled Trust Loan) or any Serviced Pari Passu Companion Loan
or a related REO Loan, any advance made by the Master Servicer, the Trustee or
the Fiscal Agent pursuant to Section 4.03 or Section 4.03A, as applicable.
"Pari Passu Companion Loan" shall have the meaning assigned thereto
in the Preliminary Statement.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates for any Interest
Accrual Period, 1.785% per annum;
(b) with respect to the Class A-2 Certificates for any Interest
Accrual Period, 3.835% per annum;
(c) with respect to the Class A-3 Certificates for any Interest
Accrual Period, 4.344% per annum;
(d) with respect to the Class A-4 Certificates for any Interest
Accrual Period, 4.755% per annum;
(e) with respect to the Class A-5 Certificates for any Interest
Accrual Period, 4.883% per annum;
(f) with respect to the Class A-6 Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.135% per annum
and (ii) the Weighted Average Net Mortgage Rate for such Interest Accrual
Period;
(g) with respect to the Class A-7 Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.317% per annum
and (ii) the Weighted Average Net Mortgage Rate for such Interest Accrual
Period;
(h) with respect to the Class B Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.426% per annum
and (ii) the Weighted Average Net Mortgage Rate for such Interest Accrual
Period;
(i) with respect to the Class C Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.466% per annum
and (ii) the Weighted Average Net Mortgage Rate for such Interest Accrual
Period;
(j) with respect to the Class D Certificates for any Interest
Accrual Period, an annual rate equal to the Weighted Average Net Mortgage
Rate for such Interest Accrual Period minus 0.184%;
(k) with respect to the Class E Certificates for any Interest
Accrual Period, an annual rate equal to the Weighted Average Net Mortgage
Rate for such Interest Accrual Period minus 0.105%;
(l) with respect to the Class F Certificates for any Interest
Accrual Period, an annual rate equal to the Weighted Average Net Mortgage
Rate for such Interest Accrual Period;
(m) with respect to the Class G Certificates for any Interest
Accrual Period, an annual rate equal to the Weighted Average Net Mortgage
Rate for such Interest Accrual Period;
(n) with respect to the Class H Certificates for any Interest
Accrual Period, an annual rate equal to the Weighted Average Net Mortgage
Rate for such Interest Accrual Period;
(o) with respect to each of the Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 5.450% per annum and (ii) the
Weighted Average Net Mortgage Rate for such Interest Accrual Period;
(p) with respect to the Class OEA-B1 Certificates for any Interest
Accrual Period, an annual rate equal to the Class OEA-B Adjusted Net
Mortgage Rate;
(q) with respect to the Class OEA-B2 Certificates for any Interest
Accrual Period, an annual rate equal to the Class OEA-B Adjusted Net
Mortgage Rate;
(r) with respect to the Class XC Certificates, for the initial
Distribution Date, 0.14845% per annum, and for any subsequent Distribution
Date, the weighted average of the Class XC Strip Rates for the Components
for such Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding immediately
prior to such Distribution Date); and
(s) with respect to the Class XP Certificates for the initial
Distribution Date, 0.55323% per annum, and for any subsequent Distribution
Date, the weighted average of the Class XP Strip Rates for the respective
Class XP Components for such Distribution Date (weighted on the basis of
the respective Component Notional Amounts of such Components outstanding
immediately prior to such Distribution Date).
"Percentage Interest" shall mean: (a) with respect to any Regular
Interest Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Notional Amount, as the case may be, of such
Certificate as of the Closing Date, as specified on the face thereof, and the
denominator of which is the Original Class Principal Balance or initial Notional
Amount, as the case may be, of the relevant Class; and (b) with respect to
Residual Interest Certificate, the percentage interest in distributions to be
made with respect to the relevant Class, as stated on the face of such
Certificate.
"Performance Certification" shall have the meaning assigned to such
term in Section 8.15(d).
"Performing Party" shall have the meaning assigned to such term in
Section 8.15(d).
"Performing Serviced Loan" shall mean any Serviced Loan as to which
a Servicing Transfer Event has never occurred and any Corrected Loan.
"Performing Serviced Mortgage Loan" shall mean any Serviced Mortgage
Loan that is a Performing Serviced Loan.
"Permitted Encumbrances" shall have the meaning assigned thereto in
Section 2.04(b)(viii).
"Permitted Investments" shall mean any one or more of the following
obligations or securities (including obligations or securities of the Trustee if
otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof (having original maturities of
not more than 365 days), provided that such obligations are backed
by the full faith and credit of the United States. Such obligations
must be limited to those instruments that have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such interest
is variable, interest must be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately with
that index;
(ii) repurchase obligations with respect to any security
described in clause (i) of this definition (having original
maturities of not more than 365 days), provided that the short-term
deposit or debt obligations of the party agreeing to repurchase such
obligations are rated in the highest rating category of each of S&P,
Fitch Ratings and Xxxxx'x (or, in the case of any Rating Agency,
such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates or Companion Loan Securities,
as evidenced in writing by such Rating Agency). In addition, any
such item by its terms must have a predetermined fixed dollar amount
of principal due at maturity that cannot vary or change. Interest
may either be fixed or variable. If such interest is variable,
interest must be tied to a single interest rate index plus a single
fixed spread (if any), and move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits
and bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof (having
original maturities of not more than 365 days), the short term
obligations of which are rated in the highest rating category of
each of S&P, Fitch Ratings and Xxxxx'x (or, in the case of any
Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to any Class of Certificates or Companion
Loan Securities, as evidenced in writing by such Rating Agency). In
addition, any such item by its terms must have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such interest
is variable, interest must be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately with
that index;
(iv) commercial paper (having original maturities of not more
than 90 days) of any corporation incorporated under the laws of the
United States or any state thereof (or if not so incorporated, the
commercial paper is United States Dollar denominated and amounts
payable thereunder are not subject to any withholding imposed by any
non-United States jurisdiction) which is rated in the highest rating
category of each of S&P, Fitch Ratings and Xxxxx'x (or, in the case
of any Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Certificates or
Companion Loan Securities, as evidenced in writing by such Rating
Agency). In addition, such commercial paper by its terms must have a
predetermined fixed dollar amount of principal due at maturity that
cannot vary or change. Interest may either be fixed or variable. If
such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index;
(v) units of money market funds rated in the highest
applicable rating category of each of S&P, Fitch Ratings and Xxxxx'x
(or, in the case of any Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of
Certificates or Companion Loan Securities, as evidenced in writing
by such Rating Agency) and which seeks to maintain a constant net
asset value; and
(vi) any other obligation or security that (A) is acceptable
to each Rating Agency, evidence of which acceptability shall be
provided in writing by each Rating Agency to the Master Servicer,
the Special Servicer and the Trustee, and (B) constitutes a "cash
flow investment" (within the meaning of the REMIC Provisions), as
evidenced by an Opinion of Counsel obtained at the expense of the
Person that wishes to include such obligation or security as a
Permitted Investment;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; (2) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity; and (3) no
investment described hereunder may have a "r" highlighter or other comparable
qualifier attached to its rating.
"Permitted Transferee" shall mean any Transferee of a Residual
Interest Certificate other than (a) a Disqualified Organization, (b) any Person
as to whom, as determined by the Trustee (based upon an Opinion of Counsel,
obtained at the request of the Trustee at the expense of such Person or the
Person seeking to Transfer a Residual Interest Certificate, supporting such
determination), the Transfer of a Residual Interest Certificate may cause either
REMIC Pool or any Loan REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding or an Adverse Grantor Trust Event, (c) a Disqualified
Non-United States Tax Person, (d) a Disqualified Partnership, or (e) a United
States Tax Person with respect to whom interest is attributable to a foreign
permanent establishment or fixed base (within the meaning of any applicable
income tax treaty between the United States and any foreign jurisdiction) of
such Person or any other United States Tax Person.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as to
any taxable year of each REMIC Pool, the Holder of Certificates entitled to the
largest percentage of the Voting Rights allocated to the related Class of
Residual Interest Certificates.
"Pool Custodial Account" shall mean the segregated account or
accounts created and maintained by the Master Servicer pursuant to Section
3.04(a) on behalf of the Trustee in trust for the Certificateholders, which
shall be entitled "Wachovia Bank, National Association, as Master Servicer, on
behalf of LaSalle Bank National Association, as Trustee, in trust for the
registered holders of Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust 2004-GG1, Commercial Mortgage Pass-Through Certificates, Series
2004-GG1."
"Pool REO Account" shall mean the segregated account or accounts
created and maintained by the Special Servicer pursuant to Section 3.17 on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Lennar Partners, Inc., as Special Servicer, on behalf of LaSalle Bank
National Association, as Trustee, in trust for the registered holders of
Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2004-GG1,
Commercial Mortgage Pass-Through Certificates, Series 2004-GG1."
"Pooled Mortgage Loans" means the Mortgage Loans other than the 000
Xxxxxx Xxxxxx Non-Pooled Trust Loan.
"Pooled REO Mortgage Loans" means the REO Mortgage Loans other than
any REO Mortgage Loan with respect to the 000 Xxxxxx Xxxxxx Non-Pooled Trust
Loan.
"Prepayment Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, the assumption that no Mortgage
Loan is prepaid prior to stated maturity.
"Prepayment Consideration" shall mean any Prepayment Premium or
Yield Maintenance Charge.
"Prepayment Consideration Entitlement" shall mean, with respect to
(i) any Distribution Date on which any Net Prepayment Consideration Received on
any Mortgage Loan (or any successor REO Mortgage Loan with respect thereto),
other than the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan (or any successor REO
Mortgage Loan with respect thereto), is distributable and (ii) each of the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class B,
Class C, Class D, Class E, Class F, Class G and Class H Certificates entitled to
distributions of principal on such Distribution Date, an amount equal to the
product of (a) such Net Prepayment Consideration, multiplied by (b) a fraction
(not greater than 1.0 or less than 0.0), the numerator of which is equal to the
excess, if any, of the Pass-Through Rate for such Class of Principal Balance
Certificates over the relevant Discount Rate, and the denominator of which is
equal to the excess, if any, of the Mortgage Rate for such Mortgage Loan (or REO
Mortgage Loan) over the relevant Discount Rate, and further multiplied by (c) a
fraction, the numerator of which is equal to the amount of principal to be
distributed on such Class of Principal Balance Certificates on such Distribution
Date pursuant to Section 4.01(a) or 9.01, as applicable, and the denominator of
which is equal to the Principal Distribution Amount for such Distribution Date.
"Prepayment Interest Excess" shall mean with respect to any Serviced
Loan and the Non-Serviced Trust Loans that were subject to a Principal
Prepayment in full or in part made (or, if resulting from the application of
Insurance Proceeds or Condemnation Proceeds, any other early recovery of
principal received) after its Due Date in any Collection Period, any payment of
interest (net of related Master Servicing Fees) actually collected from the
related Mortgagor or otherwise and intended to cover interest accrued on such
Principal Prepayment during the period from and after such Due Date (exclusive,
however, of any related Prepayment Premium or Yield Maintenance Charge that may
have been collected).
"Prepayment Interest Shortfall" shall mean with respect to any
Serviced Loan and the Non-Serviced Trust Loans that were subject to a Principal
Prepayment in full or in part made (or, if resulting from the application of
Insurance Proceeds or Condemnation Proceeds, any other early recovery of
principal received) prior to its Due Date in any Collection Period, the amount
of interest, to the extent not collected from the related Mortgagor or otherwise
(without regard to any Prepayment Premium or Yield Maintenance Charge that may
have been collected), that would have accrued at a rate per annum equal to the
related Mortgage Rate (net of the rate at which the related Master Servicing
Fees that are payable on such Loan accrue) on the amount of such Principal
Prepayment during the period from the date to which interest was paid by the
related Mortgagor to, but not including, such Due Date. A Prepayment Interest
Shortfall in respect of each Loan REMIC Loan shall be a Prepayment Interest
Shortfall in respect of the related Loan REMIC Regular Interest.
"Prepayment Premium" shall mean any premium, penalty or fee (other
than a Yield Maintenance Charge) paid or payable, as the context requires, as a
result of a Principal Prepayment on, or other early collection of principal of,
a Loan.
"Primary Servicing Office" shall mean the offices of the Master
Servicer or the Special Servicer, as the context may require, that are primarily
responsible for such party's servicing obligations hereunder. As of the Closing
Date, the Primary Servicing Office of the Master Servicer is located at NC 1075,
0000 Xxxxxxxx Xxxxx, XXX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000-0000, and the
Primary Servicing Office of the Special Servicer is located at 0000 Xxxxxxxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxxxx 00000.
"Prime Rate" shall mean the "prime rate" published in the "Money
Rates" section of The Wall Street Journal, as such "prime rate" may change from
time to time. If The Wall Street Journal ceases to publish the "prime rate,"
then the Trustee shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Trustee shall select a comparable interest rate index. In either case,
such selection shall be made by the Trustee in its sole discretion and the
Trustee shall notify the Fiscal Agent, the Master Servicer, the Special
Servicer, the Companion Loan Noteholders and the Holders of the Class OEA-B
Certificates in writing of its selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than the Class X Certificates).
"Principal Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the aggregate (without duplication) of the
following:
(a) the aggregate of all payments of principal (other than Principal
Prepayments) Received with respect to the Serviced Mortgage Loans during
the related Collection Period, in each case exclusive of any portion of
the particular payment that represents a Late Collection of principal for
which a P&I Advance was previously made under this Agreement for a prior
Distribution Date or that represents the principal portion of a Monthly
Payment due on or before the Cut-off Date or on a Due Date subsequent to
the related Collection Period;
(b) the aggregate of the principal portions of all Monthly Payments
due in respect of the Serviced Mortgage Loans for their respective Due
Dates occurring during the related Collection Period, that were Received
prior to the related Collection Period;
(c) the aggregate of all Principal Prepayments Received on the
Serviced Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds Received with respect to any Serviced Mortgage
Loans during the related Collection Period that were identified and
applied by the Master Servicer as recoveries of principal of such Mortgage
Loans, in each case exclusive of any portion of such proceeds that
represents a Late Collection of principal due on or before the Cut-off
Date or for which a P&I Advance was previously made under this Agreement
for a prior Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and REO Revenues Received with respect to any
REO Properties during the related Collection Period that were identified
and applied by the Master Servicer as recoveries of principal of the
related REO Mortgage Loans, in each case exclusive of any portion of such
proceeds and/or revenues that represents a Late Collection of principal
due on or before the Cut-off Date or for which a P&I Advance was
previously made under this Agreement for a prior Distribution Date;
(f) the aggregate of the principal portions of all P&I Advances made
under this Agreement with respect to the Mortgage Loans and any REO
Mortgage Loans for such Distribution Date; and
(g) all amounts received by the Master Servicer on or prior to 12:00
noon (New York City time) on the Master Servicer Remittance Date from the
applicable Lead Master Servicer in respect of principal for the
Non-Serviced Trust Loans (which shall include the principal portion of any
P&I Advance made by the applicable Lead Master Servicer);
provided that none of the amounts set forth in clauses (a) to (g) above shall
represent amounts received, due or advanced on or in respect of (1) the 000
Xxxxxx Xxxxxx Non-Pooled Trust Loan or any successor REO Loan thereto or (2) any
Companion Loan or any successor REO Loan thereto; provided, further, that the
Principal Distribution Amount for any Distribution Date shall be reduced by the
amount of any reimbursements of (i) Nonrecoverable Advances plus interest on
such Nonrecoverable Advances that are deemed paid or reimbursed from principal
collections on the Mortgage Loans in a period during which such principal
collections would have otherwise been included in the Principal Distribution
Amount for such Distribution Date and (ii) Workout-Delayed Reimbursement Amounts
that were paid or reimbursed from principal collections on the Mortgage Loans in
a period during which such principal collections would have otherwise been
included in the Principal Distribution Amount for such Distribution Date
(provided, that, in the case of clause (i) and (ii) above, if any of the amounts
that were deemed reimbursed or actually reimbursed from principal collections on
the Mortgage Loans are subsequently recovered on the related Mortgage Loan, such
recovery will increase the Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs).
"Principal Prepayment" shall mean any voluntary payment of principal
made by the Mortgagor on a Loan that is Received in advance of its scheduled Due
Date and that is not accompanied by an amount of interest (without regard to any
Prepayment Premium or Yield Maintenance Charge that may have been collected)
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
"Prohibited Transaction Exemption" shall mean Prohibited Transaction
Exemption 90-59 granted to Greenwich Capital Markets and Exemption 88-89 granted
to Xxxxxxx, Xxxxx & Co. by the United States Department of Labor, as such
Prohibited Transaction Exemption may be amended from time to time.
"Proposed Plan" shall have the meaning assigned thereto in Section
3.18(a)(iii).
"Prospectus" shall mean the prospectus dated April 21, 2004, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
April 29, 2004, relating to the Registered Certificates.
"Purchase Option Holders" shall have the meaning assigned thereto in
Section 3.19(b).
"Purchase Price" shall mean, with respect to any Mortgage Loan (or
REO Property), a cash price equal to the aggregate of: (a) the outstanding
principal balance of such Mortgage Loan (or the successor REO Loan) as of the
date of purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or
the successor REO Loan) to, but not including, the Due Date in the Collection
Period of purchase (exclusive, however, of any portion of such accrued but
unpaid interest that represents Default Interest), (c) all related unreimbursed
Servicing Advances (including Advances that were reimbursed out of general
collections of the Mortgage Pool and not reimbursed by, or on behalf of, the
related Mortgagor), if any (including any Servicing Advances that were
reimbursed out of general collections of the Mortgage Pool and not reimbursed
by, or on behalf of the related Mortgagor), (d) all accrued and unpaid interest,
if any, in respect of related Advances in accordance with, as applicable,
Section 3.12(b), Section 4.03(d) and/or Section 4.03A(d), and (e) in the case of
a repurchase by the applicable Mortgage Loan Seller pursuant to Section 2.03(a)
and the applicable Mortgage Loan Purchase Agreement, (i) to the extent not
otherwise included in the amount described in clause (d) of this definition, any
unpaid Special Servicing Fees, Workout Fees and other Additional Trust Fund
Expenses with respect to such Mortgage Loan (or REO Property), including any
Liquidation Fee payable because the subject repurchase occurred outside the
applicable cure period set forth in Section 2.03 with respect to the Material
Document Defect or Material Breach that gave rise to the repurchase, and (ii) to
the extent not otherwise included in the amount described in clause (c) of this
definition, any costs and expenses incurred by the Master Servicer, the Special
Servicer or the Trustee (on behalf of the Trust) in enforcing the obligation of
such Person to purchase such Mortgage Loan. With respect to the Deerbrook Mall
Mortgage Loan, the Southland Mall Mortgage Loan and the Water Tower Place Trust
Loan, the Purchase Price for each of Commerzbank and GSMC will be its respective
percentage interest as of the Closing Date of the total Purchase Price for such
Mortgage Loan. The percentage interests with respect to each of the Water Tower
Place Trust Loan, the Southland Mall Mortgage Loan and the Deerbrook Mall
Mortgage Loan for each of Commerzbank and GSMC shall be 50%.
"Qualified Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rated Final Distribution Date" shall mean, for the purposes of this
Agreement, the Distribution Date in June 2036.
"Rating Agency" shall mean each of S&P, Fitch Ratings and Xxxxx'x.
Notwithstanding the foregoing, when used with respect to any Companion Loan
Securities Rating Agency means any of the foregoing rating agencies that rated
such Companion Loan Securities.
"Realized Loss" shall mean: (1) with respect to each Loan as to
which a Final Recovery Determination has been made, or with respect to any
successor REO Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to the excess,
if any, of (a) the sum of (i) the unpaid principal balance of such Loan or REO
Loan, as the case may be, as of the commencement of the Collection Period in
which the Final Recovery Determination was made, plus (ii) without taking into
account the amount described in subclause (1)(b) of this definition, all accrued
but unpaid interest on such Loan or such REO Loan, as the case may be, to but
not including the Due Date in the Collection Period in which the Final Recovery
Determination was made (exclusive, however, of any portion of such accrued but
unpaid interest that represents Default Interest), over (b) all payments and
proceeds, if any, Received in respect of such Loan or, to the extent allocable
to such REO Loan, the related REO Property, as the case may be, during the
Collection Period in which such Final Recovery Determination was made, insofar
as such payments and proceeds are allocable to interest (other than Default
Interest) on or principal of such Loan or REO Loan; (2) with respect to each
Loan as to which any portion of the principal or previously accrued interest
payable thereunder was canceled in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, extension, waiver
or amendment of such Loan granted or agreed to by the Special Servicer pursuant
to Section 3.21, the amount of such principal and/or interest (other than
Default Interest) so canceled; and (3) with respect to each Loan as to which the
Mortgage Rate thereon has been permanently reduced and not recaptured for any
period in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, extension, waiver or amendment of such Loan
granted or agreed to by the Special Servicer pursuant to Section 3.21, the
amount of the consequent reduction in the interest portion of each successive
Monthly Payment due thereon (each such Realized Loss shall be deemed to have
been incurred on the Due Date for each affected Monthly Payment); provided,
however, that any Loan Group shall be deemed to be a single Loan for purposes of
this definition.
"Received" shall mean in the case of any Loan or REO Property,
received by the Master Servicer or any of its Sub-Servicers, the Special
Servicer or any of its Sub-Servicers or the Trustee, as the case may be, in any
event on behalf of the Trust and/or the Companion Loan Noteholders.
"Record Date" shall mean: with respect to the initial Distribution
Date, the Closing Date; and, with respect to any other Distribution Date, the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Recording/Filing Agent" shall have the meaning assigned thereto in
Section 2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in
Section 1.03(c).
"Reference Rate" shall mean, with respect to any Interest Accrual
Period, the rate per annum set forth on the Reference Rate Schedule.
"Registered Certificate" shall mean any Certificate that has been
the subject of registration under the Securities Act. As of the Closing Date,
the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7,
Class B, Class C, Class D and Class E Certificates are Registered Certificates.
"Regular Interest Certificate" shall mean any Certificate other than
a Class R-I Certificate or Class R-II Certificate.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Certificates" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates offered and sold outside of the
United States in reliance on Regulation S, one or more global Certificates,
collectively, in definitive, fully registered form without interest coupons,
each of which Certificates bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the date that is
40 days after the later of (a) the commencement of the offering to Persons other
than distributors in reliance on Regulation S, and (b) the date of closing of
the offering, except pursuant to an exemption from the registration requirements
of the Securities Act.
"Regulation S Restricted Certificate": Any Certificate that is not
rated in one of the four highest generic ratings categories by a Rating Agency.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of interest, compounded annually, on Servicing Advances in accordance
with Section 3.12(b) and on P&I Advances in accordance with, as applicable,
Section 4.03(d) or Section 4.03A(d), which rate per annum is equal to the Prime
Rate.
"Release Date" shall have the meaning assigned thereto in Section
5.02(b).
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC Pool" shall mean either of the Lower-Tier REMIC and/or the
Upper-Tier REMIC, as applicable.
"REMIC Provisions" shall mean the provisions of the federal income
tax law relating to REMICs, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and proposed,
temporary and final Treasury regulations and any published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean either of the Pool REO Account or the
applicable Loan Group REO Account.
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of any
REO Property pursuant to Section 3.19.
"REO Extension" shall have the meaning assigned thereto in Section
3.17(a).
"REO Loan" shall mean the mortgage loan (or, if any Loan Group is
involved, any of the mortgage loans comprising such Loan Group) deemed for
purposes hereof to be outstanding with respect to each REO Property or, with
respect to a Non-Serviced Trust Loan, the Loan deemed outstanding when the
related Mortgaged Property is acquired on behalf of the holders under the Lead
PSA. Each REO Loan shall be deemed to provide for monthly payments of principal
and/or interest equal to its Assumed Monthly Payment and otherwise to have the
same terms and conditions as its predecessor Loan (such terms and conditions to
be applied without regard to the default on such predecessor Loan and the
acquisition of the related REO Property as part of the Trust Fund).
"REO Mortgage Loan" shall mean any REO Loan that relates to a
predecessor Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired on behalf
and in the name of the Trustee for the benefit of the Certificateholders (or, in
the case of the Loan Group Mortgaged Properties (other than the Non-Serviced
Loan Groups, which are being serviced under the applicable Lead PSA), for the
benefit of the Certificateholders and the Companion Loan Noteholders, as their
interests may appear), through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Loan.
"REO Revenues" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
"REO Tax" shall have the meaning assigned thereto in Section
3.18(a).
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, the Master Servicer in the form of Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the party required or authorized to obtain
such appraisal hereunder, which appraisal shall be prepared in accordance with
12 CFR ss. 225.62 and conducted in accordance with the standards of the
Appraisal Institute or, in the case of a Required Appraisal Loan having a Stated
Principal Balance of, or in the case of a Mortgaged Property that has an
allocated loan amount of, less than $2,000,000, if no satisfactory (as
determined by the Special Servicer pursuant to Section 3.09(a)) appraisal
meeting the foregoing criteria was obtained or conducted within the prior 12
months, a "desktop" value estimate performed by the Special Servicer.
"Required Appraisal Loan" shall mean any Serviced Mortgage Loan or
Serviced Loan Group:
(i) that becomes a Modified Loan,
(ii) that is 60 days or more delinquent in respect of any
Monthly Payment, except for a Balloon Payment,
(iii) solely in the case of a delinquent Balloon Payment, a
Serviced Loan shall be considered to be a Required Appraisal Loan if
the related Mortgagor has failed to make when due any Balloon
Payment; provided, however, if (x) the related Mortgagor is actively
seeking a refinancing commitment, (y) the related Mortgagor
continues to make payments in the amount of its Assumed Monthly
Payment and (z) the Directing Holder consents, the Loan will not be
considered a Required Appraisal Loan until 60 days beyond the
related maturity date; and provided, further, if the related
Mortgagor has delivered to the Master Servicer, on or before the
60th day after the related maturity date, a refinancing commitment
reasonably acceptable to the Master Servicer, and the Mortgagor
continues to make its payments in the amount of its Assumed Monthly
Payments, the Loan will not be considered a Required Appraisal Loan
until the earlier of (1) 120 days beyond the related maturity date
and (2) the termination of the refinancing commitment;
(iv) with respect to which the related Mortgaged Property has
become an REO Property,
(v) with respect to which a receiver or similar official is
appointed and continues for 60 days in such capacity in respect of
the related Mortgaged Property,
(vi) with respect to which the related Mortgagor is subject to
a bankruptcy, insolvency or similar proceedings, which, in the case
of an involuntary bankruptcy, insolvency or similar proceeding, has
not been dismissed within 60 days of the commencement thereof, or
(vii) that remains outstanding five (5) years following any
extension of its maturity date pursuant to Section 3.21.
Any Required Appraisal Loan (other than a Mortgage Loan that became a Required
Appraisal Loan pursuant to clause (vii) above) shall cease to be such at such
time as it has become a Corrected Loan (except if such Required Appraisal Loan
had not become a Specially Serviced Loan at the time the applicable event(s)
described in any of clauses (i) through (vii) above ceased to exist), it has
remained current for at least three (3) consecutive Monthly Payments, and no
other event described in clauses (i) through (vii) above has occurred with
respect thereto during the preceding three-month period; provided that the term
"Required Appraisal Loan" shall include any successor REO Loan(s); and provided,
further, that any Serviced Loan Group shall, upon the occurrence of any of the
events described in clauses (i) through (vii) of this definition in respect of
any Loan in such Serviced Loan Group, be deemed to be a single "Required
Appraisal Loan."
"Required Appraisal Value" shall mean, with respect to any Mortgaged
Property securing (or REO Property relating to) a Required Appraisal Loan, an
amount equal to the sum of: (a) the excess, if any, of (i) 90% of the Appraised
Value of such Mortgaged Property (or REO Property) as determined by the most
recent Required Appraisal or any letter update of such Required Appraisal (as it
may be adjusted downward by the Special Servicer in accordance with the
Servicing Standard (without implying any duty to do so) based upon its review of
the Appraisal or estimate and such other information as it may deem
appropriate), over (ii) the amount of any obligations secured by liens on such
Mortgaged Property (or REO Property) that are prior to the lien of the related
Required Appraisal Loan; plus (b) the amount of Escrow Payments and Reserve
Funds held by the Master Servicer in respect of such Required Appraisal Loan
that (i) are not being held in respect of any real estate taxes and assessments,
insurance premiums or, if applicable, ground rents, (ii) are not otherwise
scheduled to be applied or utilized (except to pay debt service on such Required
Appraisal Loan) within the twelve-month period following the date of
determination and (iii) may be applied towards the reduction of the principal
balance of such Required Appraisal Loan; plus (c) the amount of any letter of
credit constituting additional security for such Required Appraisal Loan and
that may be applied towards the reduction of the principal balance of such
Required Appraisal Loan.
"Reserve Account" shall mean any account established by the Master
Servicer, pursuant to Section 3.03(d), as to which Reserve Funds shall be
deposited.
"Reserve Funds" shall mean, with respect to any Serviced Loan, any
amounts delivered by the related Mortgagor to be held by or on behalf of the
mortgagee representing reserves for repairs, capital improvements and/or
environmental remediation in respect of the related Mortgaged Property or debt
service on such Loan.
"Residual Interest Certificate" shall mean a Class R-I or Class R-II
Certificate.
"Responsible Officer" shall mean: (a) when used with respect to the
Trustee, any Vice President, any Assistant Vice President, any Trust Officer,
any Assistant Secretary or any other officer of the Trustee's Asset-Backed
Services Trust Group customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for the
administration of this Agreement; and (b) when used with respect to the Fiscal
Agent, any officer thereof.
"Review Package" shall mean a package of documents consisting of a
memorandum outlining the analysis and recommendation (in accordance with the
Servicing Standard) of the Master Servicer or the Special Servicer, as the case
may be, with respect to the matters that are the subject thereof, and copies of
all relevant documentation.
"Rule 144A Global Certificate" shall mean, with respect to any Class
of Book-Entry Non-Registered Certificates, one or collectively more global
certificates representing such Class registered in the name of the Depository or
its nominee, in definitive, fully registered form without interest coupons, none
of which certificates bears a Regulation S Legend, and each of which
certificates has a Rule 144A CUSIP number.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Fiscal Agent, the Master Servicer and the Special
Servicer, and specific ratings of Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Certification" shall have the meaning assigned to
such term in Section 8.15(d).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Serviced Companion Loan" shall mean the 000 Xxxxxx Xxxxxx Pari
Passu Companion Loans, the 000 Xxxxxx Xxxxxx Subordinate Companion Loan, the 000
Xxxxxxx Xxxxxx Subordinate Companion Loan, the Davies Pacific Center Subordinate
Companion Loan, the Sycamore Mineral Springs Resort Subordinate Companion Loans,
the 510 Glenwood Subordinate Companion Loan, Sunrise Mesa MHP Subordinate
Companion Loan, the Mountain Lodge Apartments Subordinate Companion Loan, the
Palisades I Office Building Subordinate Companion Loan and the Berryland
Shopping Center Subordinate Companion Loan.
"Serviced Loan" shall mean any Loan (including a Specially Serviced
Loan, but excluding an REO Loan) that is, as contemplated by Section 3.01, to be
serviced and administered by the Master Servicer and/or the Special Servicer
hereunder, which includes the Mortgage Loans (other than the Non-Serviced Trust
Loans) and the Companion Loans (other than the Non-Serviced Companion Loans).
"Serviced Loan Group" shall mean the 000 Xxxxxx Xxxxxx Loan Group
and each of the Tier 2 Loan Groups and Tier 3 Loan Groups.
"Serviced Loan Group Trust Mortgage Loan" shall mean the 000 Xxxxxx
Xxxxxx Pooled Trust Loan, the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan, the 000
Xxxxxxx Xxxxxx Trust Loan, the Davies Pacific Center Trust Loan, the Sycamore
Mineral Springs Resort Trust Loan, the 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxx Xxxx MHP
Trust Loan, the Mountain Lodge Apartments Trust Loan, the Palisades I Office
Building Trust Loan and the Berryland Shopping Center Trust Loan.
"Serviced Mortgage Loan" shall mean any Mortgage Loan
that is a Serviced Loan.
"Serviced Pari Passu Companion Loan" shall mean the 000 Xxxxxx
Xxxxxx Pari Passu Companion Loans.
"Servicer Fee Amount" shall mean: (a) with respect to each
Sub-Servicer, as of any date of determination, the aggregate of the products
obtained by multiplying, for each Serviced Loan primary serviced by such
Sub-Servicer, (i) the principal balance of such Loan as of the end of the
immediately preceding Collection Period and (ii) the sub-servicing fee rate
specified in the related Sub-Servicing Agreement for such Loan; and (b) with
respect to the Master Servicer, as of any date of determination, the aggregate
of the products obtained by multiplying, for each Serviced Loan and the
Non-Serviced Trust Loans, (i) the principal balance of such Loan or the
Non-Serviced Trust Loans, as applicable, as of the end of the immediately
preceding Collection Period and (ii) the excess, if any, of the Master Servicing
Fee Rate for such Loan or the Non-Serviced Trust Loans, as applicable, over the
sub-servicing fee rate (if any) applicable to such Loan, as specified in any
Sub-Servicing Agreement related to such Loan.
"Servicer Reports" shall mean each of the files and reports
comprising the CMSA Investor Reporting Package (excluding the CMSA Bond Level
File, the CMSA Collateral Summary File) and the Supplemental Report.
"Servicing Account" shall have the meaning assigned thereto in
Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys' fees and fees
and expenses of real estate brokers) incurred by the Master Servicer, the
Special Servicer, the Fiscal Agent or the Trustee in connection with the
servicing and administration of a Serviced Loan, if a default is imminent
thereunder or a default, delinquency or other unanticipated event has occurred
with respect thereto, or in connection with the administration of any REO
Property, including, but not limited to, the cost of (a) compliance with the
obligations of the Master Servicer, the Special Servicer, the Fiscal Agent or
the Trustee, if any, set forth in Section 3.03(c), (b) the preservation,
insurance, restoration, protection and management of a Mortgaged Property, (c)
obtaining any Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds,
(d) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including foreclosures, (e) any Required Appraisal or any other
appraisal or update thereof expressly permitted or required to be obtained
hereunder, (f) the operation, management, maintenance and liquidation of any REO
Property, and (g) obtaining any related ratings confirmation; provided that,
notwithstanding anything to the contrary, "Servicing Advances" shall not include
allocable overhead of the Master Servicer, the Special Servicer or the Trustee,
such as costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
or costs and expenses incurred by any such party in connection with its purchase
of any Loan or REO Property pursuant to any provision of this Agreement, or the
applicable Co-Lender Agreement.
"Servicing Fees" shall mean with respect to each Serviced Loan and
the Non-Serviced Trust Loans (and any successor REO Loan with respect thereto),
the Master Servicing Fee and the Special Servicing Fee.
"Servicing File" shall mean, (i) with respect to each Serviced Loan,
collectively, any and all documents (other than documents required to be part of
the related Mortgage File) in the possession of the Master Servicer or the
Special Servicer and relating to the origination and servicing of any Serviced
Loan, including any original letter of credit (together with any transfer or
assignment documents related thereto), any franchise agreement and any franchise
comfort letter (together with any transfer or assignment documents relating
thereto), appraisals, surveys, engineering reports, environmental reports,
opinion letters of counsel to a related Mortgagor, escrow agreements, property
management agreements and franchise agreements and (ii) with respect to each
Non-Serviced Trust Loan, a copy of the related Mortgage Note (and all
intervening endorsements), the applicable Lead PSA, the applicable Co-Lender
Agreement and appraisal shall be sufficient for the applicable Servicing File.
"Servicing Officer" shall mean any officer or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Serviced Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing-Released Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing-Retained Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing Standard" shall mean, with respect to the Master Servicer
or the Special Servicer, to service and administer the Serviced Loans and any
REO Properties that such party is obligated to service and administer pursuant
to this Agreement: (i) in accordance with the higher of the following standards
of care: (A) the same manner in which, and with the same care, skill, prudence
and diligence with which, the Master Servicer or the Special Servicer, as the
case may be, services and administers comparable mortgage loans with similar
borrowers and comparable REO properties for other third-party portfolios (giving
due consideration to the customary and usual standards of practice of prudent
institutional commercial mortgage lenders servicing their own mortgage loans and
REO properties), and (B) the same manner in which, and with the same care,
skill, prudence and diligence with which, the Master Servicer or Special
Servicer, as the case may be, services and administers comparable mortgage loans
owned by the Master Servicer or Special Servicer, as the case may be, in either
case exercising reasonable business judgment and acting in accordance with
applicable law, the terms of this Agreement and the terms of the respective
Serviced Loans; (ii) with a view to: the timely recovery of all payments of
principal and interest, including Balloon Payments, under the Serviced Loans or,
in the case of any such Serviced Loan that is (1) a Specially Serviced Loan or
(2) a Serviced Loan as to which the related Mortgaged Property has become an REO
Property, the maximization of recovery on the Mortgage Loan to the
Certificateholders (as a collective whole) (or, if any Loan Group is involved,
with a view to the maximization of recovery on such Loan Group to the
Certificateholders and the related Companion Loan Noteholders (as a collective
whole) (it being understood that the interest of any Subordinate Companion Loan
is a subordinate interest, subject to the terms and conditions of the related
Co-Lender Agreement) of principal and interest, including Balloon Payments, on a
present value basis (the relevant discounting of anticipated collections that
will be distributable to the Certificateholders (or, in the case of any Loan
Group, to the Certificateholders and the related Companion Noteholders) to be
performed at the related Mortgage Rate (or, in the case of any Loan Group, at
the weighted average of the Mortgage Rates for such Loan Group); and (iii)
without regard to (A) any relationship, including as lender on any other debt,
that the Master Servicer or the Special Servicer, as the case may be, or any
Affiliate thereof, may have with any of the related Mortgagors, or any Affiliate
thereof, or any other party to this Agreement; (B) the ownership of any
Certificate (or any Companion Loan or any certificate backed by a Companion Loan
or any Mezzanine Loan) by the Master Servicer or the Special Servicer, as the
case may be, or any Affiliate thereof; (C) the obligation of the Master Servicer
or the Special Servicer, as the case may be, to make Advances; (D) the right of
the Master Servicer or the Special Servicer, as the case may be, or any
Affiliate of either of them, to receive compensation or reimbursement of costs
hereunder generally or with respect to any particular transaction; and (E) the
ownership, servicing or management for others of any other mortgage loan or real
property not subject to this Agreement by the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof.
"Servicing Transfer Event" shall mean, with respect to any Serviced
Loan, the occurrence of any of the events described in clauses (a) through (h)
of the definition of "Specially Serviced Loan," except in the case of a Loan
Group, if the related Subordinate Companion Loan Noteholder and/or, in the case
of the 000 Xxxxxx Xxxxxx Loan Group, the Class OEA-B Majority Holder, is
exercising its cure rights under the related Co-Lender Agreement.
"Similar Law" shall have the meaning assigned thereto in Section
5.02(c).
"Single Certificate" shall mean, for purposes of Section 4.02, a
hypothetical Regular Interest Certificate evidencing an initial $1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents and/or the related Loan documents
provide substantially to the effect that: (i) it was formed or organized solely
for the purpose of either owning and operating the Mortgaged Property or
Properties securing one or more Loans, or owning and pledging Defeasance
Collateral in connection with the defeasance of a Defeasance Loan, as the case
may be, (ii) it may not engage in any business unrelated to such Mortgaged
Property or Properties or such Defeasance Collateral, as the case may be, (iii)
it will not have any assets other than those related to its interest in and
operation of such Mortgaged Property or such Defeasance Collateral, as the case
may be, (iv) it may not incur indebtedness other than incidental to its
ownership and operation of the applicable Mortgaged Property or Properties or
Defeasance Collateral, as the case may be, (v) it will maintain its own books
and records and accounts separate and apart from any other Person, (vi) it will
hold itself out as a legal entity, separate and apart from any other Person, and
(vii) in the case of such an entity whose sole purpose is owning or operating a
Mortgaged Property, it will have an independent director or, if such entity is a
partnership or a limited liability company, at least one general partner or
limited liability company member thereof, as applicable, which shall itself be a
"single purpose entity" (having as its sole asset its interest in the Single
Purpose Entity) with an independent director.
"Southland Mall Mortgage Loan" shall mean that certain Mortgage Loan
evidenced by two Mortgage Notes which are assets of the Trust Fund secured by
the Mortgaged Property identified on the Mortgage Loan Schedule as Southland
Mall.
"Special Servicer" shall mean Lennar Partners, Inc., in its capacity
as special servicer hereunder, or any successor special servicer appointed as
herein provided.
"Special Servicing Fee" shall mean, with respect to each Specially
Serviced Loan and each REO Loan, (excluding any Non-Serviced Trust Loan that has
become an REO Loan) the fee designated as such in, and payable to the Special
Servicer pursuant to, Section 3.11(b).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Loan and each REO Loan (excluding an REO Loan that
corresponds to a Non-Serviced Trust Loan), 0.25% per annum.
"Specially Serviced Loan" shall mean any Serviced Loan as to which
any of the following events has occurred, except in the case of the 000 Xxxxxx
Xxxxxx Loan Group, if either the Class OEA-B Majority Holder or the holder of
the 000 Xxxxxx Xxxxxx Subordinate Companion Loan is exercising its cure rights
in accordance with the Co-Lender Agreement (within the applicable cure period
set forth therein):
(a) the related Mortgagor has failed to make when due any Monthly
Payment (including a Balloon Payment), which failure continues, or the
Master Servicer determines, in its reasonable, good faith judgment, will
continue, unremedied (without regard to any grace period)--
(i) except in the case of a Balloon Loan delinquent in respect
of its Balloon Payment, for 60 days beyond the date on which the
subject payment was due, or
(ii) solely in the case of a delinquent Balloon Payment, a
Serviced Loan shall be considered to be a Specially Serviced Loan if
the related Mortgagor has failed to make when due any Balloon
Payment; provided, however, if (x) the related Mortgagor is actively
seeking a refinancing commitment, (y) the related Mortgagor
continues to make payments in the amount of its Assumed Monthly
Payment and (z) the Directing Holder consents, the Loan will not be
considered a Specially Serviced Loan until 60 days beyond the
related maturity date; and provided, further, if the related
Mortgagor has delivered to the Master Servicer, on or before the
60th day after the related maturity date, a refinancing commitment
reasonably acceptable to the Master Servicer, and the Mortgagor
continues to make its payments in the amount of its Assumed Monthly
Payments, the Loan will not be considered a Specially Serviced Loan
until the earlier of (1) 120 days beyond the related maturity date
and (2) the termination of the refinancing commitment;
(b) the Master Servicer or Special Servicer (in the case of the
Special Servicer, with the consent of the applicable Directing Holder,
subject to Section 6.11) shall have determined, in accordance with the
Servicing Standard, based on communications with the related Mortgagor,
that a default in the making of a Monthly Payment on such Serviced Loan,
including a Balloon Payment, is likely to occur and is likely to remain
unremedied (without regard to any grace period) for at least the
applicable period contemplated by clause (a) of this definition; or
(c) there shall have occurred a default (other than as described in
clause (a) above) that (i) in the judgment of the Master Servicer or the
Special Servicer (in the case of the Special Servicer, with the consent of
the applicable Directing Holder, subject to Section 6.11) materially
impairs the value of the related Mortgaged Property as security for such
Serviced Loan or otherwise materially adversely affects the interests of
Certificateholders (or, in the case of any Companion Loan, the related
Companion Loan Noteholders), and (ii) continues unremedied for the
applicable grace period under the terms of such Serviced Loan (or, if no
grace period is specified and the default is capable of being cured, for
30 days); provided that any default that results in acceleration of the
related Mortgage Loan without the application of any grace period under
the related Mortgage Loan documents shall be deemed not to have a grace
period; and provided, further, that any determination that a Servicing
Transfer Event has occurred under this clause (c) with respect to any
Mortgage Loan solely by reason of the failure of the related Mortgagor to
maintain or cause to be maintained insurance coverage against damages or
losses arising from acts of terrorism may only be made by the Special
Servicer, subject to Section 6.11, and the second paragraph of Section
3.07(a); or
(d) the Master Servicer or the Special Servicer (in the case of the
Special Servicer, with the consent of the applicable Directing Holder,
subject to Section 6.11) has determined that (i) a default (other than as
described in clause (b) of this definition) under the Loan is imminent,
(ii) such default will materially impair the value of the related
Mortgaged Property as security for such Serviced Loan or otherwise
materially adversely affects the interests of Certificateholders (or, in
the case of any Companion Loan, the related Companion Loan Noteholders),
and (iii) the default will continue unremedied for the applicable grace
period under the terms of such Serviced Loan (or, if no grace period is
specified and the default is capable of being cured, for 30 days);
provided that any default that results in acceleration of the related
Mortgage Loan without the application of any grace period under the
related Mortgage Loan documents shall be deemed not to have a grace
period; and provided, further, that any determination that a Servicing
Transfer Event has occurred under this clause (d) with respect to any
Mortgage Loan solely by reason of the failure of the related Mortgagor to
maintain or cause to be maintained insurance coverage against damages or
losses arising from acts of terrorism may only be made by the Special
Servicer, subject to Section 6.11, and the second paragraph of Section
3.07(a); or
(e) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
or the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Mortgagor and such decree or
order shall have remained in force and not dismissed for a period of 60
days; or
(f) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all
of its property; or
(g) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property;
provided, however, that a Serviced Loan will cease to be a Specially Serviced
Loan, when a Liquidation Event has occurred with respect to such Serviced Loan,
when the related Mortgaged Property has become an REO Property or, so long as at
such time no circumstance identified in clauses (a) through (h) above exists
that would cause the Serviced Loan to continue to be characterized as a
Specially Serviced Loan, when:
(w) with respect to the circumstances described in clause (a) of
this definition, the related Mortgagor has made three consecutive full and
timely Monthly Payments under the terms of such Serviced Loan (as such terms may
be changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, extension,
waiver or amendment granted or agreed to by the Master Servicer or the Special
Servicer pursuant to Section 3.21);
(x) with respect to the circumstances described in clauses (b), (d),
(e), (f) and (g) of this definition, such circumstances cease to exist in the
good faith, reasonable judgment of the Special Servicer, but, with respect to
any bankruptcy or insolvency proceedings described in clauses (e), (f) and (g),
no later than the entry of an order or decree dismissing such proceeding;
(y) with respect to the circumstances described in clause (c) of
this definition, such default is cured as determined by the Special Servicer in
its reasonable, good faith judgment; and
(z) with respect to the circumstances described in clause (h) of
this definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master Servicer's
determination and the Master Servicer may conclusively rely on the Special
Servicer's determination as to whether a Servicing Transfer Event has occurred
giving rise to a Serviced Loan's becoming a Specially Serviced Loan. If any
Serviced Loan that is part of any Loan Group becomes a Specially Serviced Loan,
then each other Serviced Loan in the Loan Group shall also become a Specially
Serviced Loan.
"Specially Serviced Mortgage Loan" shall mean a Serviced Mortgage
Loan that constitutes a Specially Serviced Loan.
"Startup Day" shall mean, with respect to each REMIC Pool, the day
designated as such in Section 10.01(c). The Startup Day of the Loan REMICs shall
be the date specified in the related Loan REMIC Declaration.
"Stated Maturity Date" shall mean, with respect to any Loan, the Due
Date specified in the related Mortgage Note (as in effect on the Closing Date)
on which the last payment of principal is due and payable under the terms of
such Mortgage Note (as in effect on the Closing Date), without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, extension,
waiver or amendment of such Loan granted or agreed to by the Special Servicer
pursuant to Section 3.21.
"Stated Principal Balance" shall mean: (a) with respect to any
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), the
Cut off Date Balance of such Mortgage Loan, as permanently reduced on each
Distribution Date (to not less than zero) by (i) any principal payments (whether
received or advanced) or other collections in respect of such Mortgage Loan that
were identified and applied as a recovery of principal for such Mortgage Loan
(or any such successor REO Mortgage Loan with respect thereto) during the
related Collection Period, (ii) the principal portion of any Realized Loss
incurred in respect of such Mortgage Loan (or, if such Mortgage Loan is part of
a Loan Group, any Realized Loss incurred in respect of such Loan Group and
allocated to such Mortgage Loan) (or any such successor REO Mortgage Loan with
respect thereto) during the related Collection Period; and (b) with respect to
any Serviced Companion Loan (and any successor REO Loan with respect thereto),
the Cut off Date Balance of such Loan, as permanently reduced on each Loan Group
Remittance Date (to not less than zero) by (i) any principal payments (whether
received or advanced) or other collections in respect of such Loan that were
identified and applied as a recovery of principal for such Loan (or any such
successor REO Loan with respect thereto) during the related Collection Period,
and (ii) the principal portion of any Realized Loss incurred in respect of the
related Loan Group and allocated to such Loan (or any such successor REO Loan
with respect thereto) during the related Collection Period.
The Stated Principal Balance of the Mortgage Pool will not be
reduced by the amount of any principal collections from the Mortgage Pool that
were used to reimburse a Workout-Delayed Reimbursement Amount pursuant to
Section 3.05(a)(vii), unless the corresponding Advance was determined to be a
Nonrecoverable Advance.
Notwithstanding the foregoing, if a Liquidation Event or Final
Recovery Determination occurs in respect of any Loan or REO Property, then the
"Stated Principal Balance" of such Loan or of the related REO Loan, as the case
may be, shall be zero commencing as of the Distribution Date in the Collection
Period next following the Collection Period in which such Liquidation Event
occurred.
"Sub-Servicer" shall mean any Person with which the Master Servicer
or the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean the written contract between
the Master Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the other hand, relating to servicing and administration of
Serviced Loans as provided in Section 3.23.
"Subordinate Companion Loan" shall have the meaning assigned thereto
in the Preliminary Statement.
"Subordinate Companion Loan Noteholder" shall mean, with respect to
any Loan Group with a Subordinate Companion Loan, the Holder of the Mortgage
Note for such Subordinate Companion Loan.
"Subsequent Exchange Act Reports" shall have the meaning assigned
thereto in Section 8.15(a).
"Subsequent Fiscal Agent" shall mean the fiscal agent under any
Subsequent PSA.
"Subsequent Master Servicer" shall mean the master servicer under
any Subsequent PSA.
"Subsequent PSA" shall mean any "pooling and servicing agreement"
entered into in connection with a securitization of any Pari Passu Companion
Loan where the servicing of such Companion Loan is performed under this
Agreement or a Lead PSA.
"Subsequent Trustee" shall mean the trustee under any Subsequent
PSA.
"Successful Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Sunrise Mesa MHP Loan Group" shall have the meaning assigned
thereto in the Preliminary Statement.
"Sunrise Mesa MHP Subordinate Companion Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Sunrise Mesa MHP Trust Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Supplemental Report" shall mean have the meaning assigned thereto
in Section 4.02(a).
"Supplemental Servicer Schedule": With respect to the Loans to be
serviced by the Master Servicer, a list attached hereto as Schedule VI, which
list sets forth the following information with respect to each Loan:
(i) the Mortgagor's name;
(ii) property type;
(iii) the original balance;
(iv) the original and remaining amortization term;
(v) whether such Mortgage Loan has a guarantor;
(vi) whether such Mortgage Loan is secured by a letter of
credit;
(vii) the current balance and monthly amount of any reserve or
escrowed funds;
(viii) the grace period with respect to both default interest
and late payment charges;
(ix) whether such Mortgage Loan is insured by RVI, lease
enhancement policy or environmental policies;
(x) whether an operation and maintenance plan exists and, if
so, what repairs are required;
(xi) whether a cash management agreement or lock-box agreement
is in place; and
(xii) the number of units, pads, rooms or square feet of the
Mortgaged Property.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Sycamore Mineral Springs Resort Loan Group" shall have the meaning
assigned thereto in the Preliminary Statement.
"Sycamore Mineral Springs Resort Subordinate Companion Loan" shall
have the meaning assigned thereto in the Preliminary Statement.
"Sycamore Mineral Springs Resort Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Tax Administrator" shall mean any tax administrator appointed
pursuant to Section 8.13 (or, in the absence of any such appointment, the
Trustee).
"Tax Matters Person" shall mean, with respect to each REMIC Pool and
each Loan REMIC, the Person designated as the "tax matters person" of such REMIC
Pool and such Loan REMIC in the manner provided under Treasury Regulations
Section 1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1, which
Person shall be the Plurality Residual Interest Certificateholder in respect of
the related Class of Residual Interest Certificates.
"Tax Returns" shall mean the federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC)
Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual
Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any
successor forms, to be filed on behalf of each REMIC Pool and each Loan REMIC
due to its classification as a REMIC under the REMIC Provisions, together with
any and all other information, reports or returns that may be required to be
furnished to the Certificateholders or filed with the IRS under any applicable
provisions of federal tax law or any other governmental taxing authority under
applicable state and local tax law.
"Tier 1 Loan Group" shall mean, the 000 Xxxxxx Xxxxxx Loan Group.
"Tier 2 Loan Group" shall mean, any one of the 000 Xxxxxxx Xxxxxx,
Davies Pacific Center and Sycamore Mineral Springs Resort Loan Groups.
"Tier 3 Loan Group" shall mean, any one of the 000 Xxxxxxxx, Xxxxxxx
Xxxx MHP, Mountain Lodge Apartments, Palisades I Office Building and Berryland
Shopping Center Loan Groups.
"Total Principal Reinstatement Amount" shall mean, with respect to
any Distribution Date, an amount (to be calculated by the Trustee immediately
following, and after taking into account, all distributions to be made with
respect to the Certificates (excluding the Class OEA-B Certificates) on such
Distribution Date) equal to the least of: (1) the Additional Principal
Distribution Amount for the subject Distribution Date; (2) the amount, if any,
by which (a) the aggregate Stated Principal Balance of the Mortgage Pool that
will be outstanding immediately following the subject Distribution Date, exceeds
(b) the aggregate of the Class Principal Balances of all the Classes of
Principal Balance Certificates (excluding the Class OEA-B Certificates) (after
taking into account the distributions made with respect to the Certificates on
such Distribution Date, but prior to any adjustments to any of those Classes of
Principal Balance Certificates pursuant to Section 4.04 or Section 4.05); and
(3) the aggregate Loss Reimbursement Amount in respect of the Principal Balance
Certificates (excluding the Class OEA-B Certificates) for the subject
Distribution Date (reduced by all distributions made with respect to the
Principal Balance Certificates in reimbursement of such aggregate Loss
Reimbursement Amount on the subject 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)(i)(B).
"Transfer Date" shall have the meaning assigned thereto in Section
5.02(b).
"Transferee" shall mean any Person who is acquiring, by Transfer,
any Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing of, by Transfer,
any Ownership Interest in a Certificate.
"Trust" shall mean the common law trust created hereunder.
"Trust Fund" shall mean, collectively, all of the assets of the Loan
REMICs, the Lower-Tier REMIC, the Upper-Tier REMIC and the Grantor Trust.
"Trustee" shall mean LaSalle Bank National Association, in its
capacity as trustee hereunder, or any successor trustee appointed as herein
provided.
"Trustee Fee" shall mean, with respect to each Distribution Date, an
amount equal to one-twelfth of the product of (i) the Trustee Fee Rate,
multiplied by (ii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately prior to such Distribution Date; provided, however, that
with respect to the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan, the Trustee Fee
shall mean, with respect to each Distribution Date, an amount equal to the
product of (i) the Trustee Fee Rate multiplied by (ii) the Stated Principal
Balance of the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan. In the case of each Loan
REMIC Loan, the Trustee Fee shall be paid by the Lower-Tier REMIC in respect of
the related Loan REMIC Regular Interest.
"Trustee Fee Rate" shall mean 0.0008% per annum.
"Trustee Liability" shall have the meaning assigned thereto in
Section 8.05(b).
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed
(if required by the UCC) and filed pursuant to the UCC.
"Uncertificated Lower-Tier Interests" shall mean any of the 45
separate non-certificated beneficial ownership interests in the Lower-Tier REMIC
issued hereunder and designated as a "regular interest" in the Lower-Tier REMIC.
Each Uncertificated Lower-Tier Interest shall accrue interest at the Weighted
Average Net Mortgage Rate (or in the case of the Class LOEA-B1 and Class LOEA-B2
Interests, the Class OEA-B Adjusted Net Mortgage Rate), and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto. The designations for the respective
Uncertificated Lower-Tier Interests are set forth in the Preliminary Statement
hereto.
"Uncertificated Principal Balance" shall mean the principal balance
of any Uncertificated Lower-Tier Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Principal Balance of
each Uncertificated Lower-Tier Interest shall equal the amount set forth in the
Preliminary Statement hereto. On each Distribution Date, the Uncertificated
Principal Balance of each Uncertificated Lower-Tier Interest shall be
permanently reduced by all distributions of principal deemed to have been made
thereon on such Distribution Date pursuant to Section 4.01(i), and shall be
further permanently reduced on such Distribution Date by all Realized Losses and
Additional Trust Fund Expenses deemed to have been allocated thereto on such
Distribution Date pursuant to Section 4.04(b).
"Underwriters" shall mean Xxxxxxx, Xxxxx & Co., Greenwich Capital
Markets, Banc of America Securities LLC, Credit Suisse First Boston LLC, Xxxxxx
Xxxxxxx & Co. Incorporated, and Wachovia Capital Markets, LLC, and their
respective successors in interest.
"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) or the Uncertificated Principal Balance of any
Uncertificated Lower-Tier Interest pursuant to Section 4.04(b).
"Unliquidated Advance" shall mean any Advance previously made by a
party hereto that has been previously reimbursed, as between the Person that
made the Advance hereunder, on the one hand, and the Trust Fund, on the other,
as part of a Workout-Delayed Reimbursement Amount pursuant to subsections (ii)
and (vi) of Section 3.05(a) but that has not been recovered from the Mortgagor
or otherwise from collections on or the proceeds of the Loan or REO Property in
respect of which the Advance was made.
"United States Tax Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any State thereof or the District
of Columbia, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more such United States Tax Persons have the authority to control all
substantial decisions of the trust (or to the extent provided in the Treasury
regulations, if the trust was in existence on August 20, 1996 and elected to be
treated as a United States person), all within the meaning of Section
7701(a)(30) of the Code.
"United States Securities Person" shall mean any "U.S. person" as
defined in Rule 902(k) of Regulation S.
"Upper-Tier Distribution Account" shall mean the subaccount deemed
to be a part of the Distribution Account and maintained by the Trustee pursuant
to Section 3.04(b).
"Upper-Tier REMIC" One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"Voting Rights" shall mean the portion of the voting rights of all
of the Certificates that is allocated to any Certificate. At all times during
the term of this Agreement, 99% of the Voting Rights shall be allocated among
the Holders of the various Classes of the Principal Balance Certificates (other
than the Class OEA-B Certificates) in proportion to the respective Class
Principal Balances of their Certificates, and 1% of the Voting Rights shall be
allocated to the Holders of the Class XP and Class XC Certificates, pro rata,
based on the Class XP Notional Amount and Class XC Notional Amount,
respectively. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates. No Voting Rights shall be
allocated to the Class OEA-B, Class R-I or Class R-II Certificates.
"Water Tower Place Loan Group" shall have the meaning assigned
thereto in the Preliminary Statement.
"Water Tower Place Pari Passu Companion Loans" shall have the
meaning assigned thereto in the Preliminary Statement.
"Water Tower Place Trust Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Weighted Average Net Mortgage Rate" shall mean, with respect to any
Distribution Date, the weighted average of the Net Mortgage Rates of the Pooled
Mortgage Loans as of the first day of the related Collection Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Collection Period (after giving effect to any payments received during any
applicable grace period); provided that in the case of each Loan REMIC Loan,
"Pooled Mortgage Loan" shall refer to the related Loan REMIC Regular Interest.
"Xxxxx Fargo Tower Loan Group" shall have the meaning assigned
thereto in the Preliminary Statement.
"Xxxxx Fargo Tower Pari Passu Companion Loans" shall have the
meaning assigned thereto in the Preliminary Statement.
"Xxxxx Fargo Tower Trust Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Workout-Delayed Reimbursement Amounts" shall mean with respect to
any Mortgage Loan, the amount of any Advance made with respect to such Mortgage
Loan on or before the date such Mortgage Loan becomes (or, but for the making of
three Monthly Payments under its modified terms, would then constitute) a
Corrected Loan, together with (to the extent accrued and unpaid) interest on
such Advances, to the extent that (i) such Advance is not reimbursed to the
Person who made such Advance on or before the date, if any, on which such
Mortgage Loan becomes a Corrected Loan and (ii) the amount of such Advance
becomes an obligation of the Mortgagor to pay such amount under the terms of the
modified Mortgage Loan documents.
"Workout Fee" shall mean the fee designated as such in, and payable
to the Special Servicer with respect to certain collections on each Corrected
Loan pursuant to, Section 3.11(b).
"Workout Fee Rate" shall mean, with respect to each Corrected Loan
as to which a Workout Fee is payable, 1.0%.
"Xerox Headquarters Mortgage Loan" shall mean that certain Mortgage
Loan secured by the Mortgaged Property identified on the Mortgage Loan Schedule
as Xerox Headquarters.
"Yield Maintenance Charge" shall mean the payments paid or payable,
as the context requires, as the result of a Principal Prepayment on, or other
early collection of principal of, a Loan, which payments are not otherwise due
thereon in respect of principal or interest and have been calculated (based on
scheduled payments of interest and/or principal on such Loan) to compensate the
Holder for reinvestment losses based on the value of an interest rate index at
or near the time of prepayment. Any other prepayment premiums, penalties and
fees not so calculated will not be considered "Yield Maintenance Charges." In
the event that a Yield Maintenance Charge shall become due for any particular
Loan, the Master Servicer shall be required to follow the terms and provisions
contained in the applicable Mortgage Note, provided, however, in the event the
particular Mortgage Note shall not specify the U.S. Treasuries which shall be
used in determining the discount rate or the reinvestment yield to be applied in
such calculation, the Master Servicer shall be required to use those U.S.
Treasuries which shall generate the lowest discount rate or reinvestment yield
for the purposes thereof. Accordingly, if either no U.S. Treasury issue, or more
than one U.S. Treasury issue, shall coincide with the term over which the Yield
Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the Loan or the actual
term remaining through the related Stated Maturity Date), the Master Servicer
shall use the applicable U.S. Treasury whose reinvestment yield is the lowest,
with such yield being based on the bid price for such issue as published in The
Wall Street Journal on the date that is 14 days prior to the date that the Yield
Maintenance Charge shall become due and payable (or, if such bid price is not
published on that date, the next preceding date on which such bid price is so
published) and converted to a monthly compounded nominal yield. The monthly
compounded nominal yield ("MEY") is derived from the reinvestment yield or
discount rate and shall be defined as MEY = (12 X [{(1+ "BEY"/2) ^1/6}-1]) X
100, where BEY is defined as the U.S. Treasury Reinvestment Yield which is in
decimal form and not in percentage, and 1/6 is the exponential power to which a
portion of the equation is raised. For example, using a BEY of 5.50%, the MEY =
(12 X [{(1+ .055/2) ^ 0.16667}- 1]) X 100 where .055 is the decimal version of
the percentage 5.5% and 0.16667 is the decimal version of the exponential power.
The MEY in the above calculation is 5.44%.
Section 1.02 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as well
as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(iii) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," "hereto," "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision; and
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
Section 1.03 Certain Adjustments to the Principal Distributions on
the Certificates.
(a) If any party hereto is reimbursed out of general collections on
the Mortgage Pool on deposit in the Pool Custodial Account for any unreimbursed
Advances that have been or are determined to be Nonrecoverable Advances
(together with interest accrued and payable thereon pursuant to Section 3.12(b)
or Section 4.03(d), as applicable, to the extent such interest was paid
hereunder from a source other than Default Charges Received by the Trust on the
Mortgage Pool), then (for purposes of calculating distributions on the
Certificates) each such reimbursement and payment of interest shall be deemed to
have been made:
(i) first, out of any amounts then on deposit in the Pool Custodial
Account that represent payments or other collections of principal Received
by the Trust with respect to the Mortgage Pool that, but for their
application to reimburse a Nonrecoverable Advance and/or to pay interest
thereon, would be included in the Available Distribution Amount for the
related Distribution Date;
(ii) second, out of any amounts then on deposit in the Pool
Custodial Account that represent any other payments or other collections
Received by the Trust with respect to the Mortgage Pool that, but for
their application to reimburse a Nonrecoverable Advance and/or to pay
interest thereon, would be included in the Available Distribution Amount
for the related Distribution Date; and
(iii) third, out of any other amounts then on deposit in the Pool
Custodial Account that may be available to reimburse the subject
Nonrecoverable Advance and/or to pay interest thereon.
(b) If and to the extent that any payment or other collection of
principal of any Mortgage Loan or REO Mortgage Loan is deemed to be applied in
accordance with Section 1.03(a)(i) to reimburse a Nonrecoverable Advance or to
pay interest thereon or is applied to reimburse a Workout-Delayed Reimbursement
Amount, and further if and to the extent that such payment or other collection
of principal constitutes part of the Principal Distribution Amount for any
Distribution Date, then for purposes of calculating the Adjusted Principal
Distribution Amount for such Distribution Date, the amount of such payment or
other collection of principal shall be subtracted from the Principal
Distribution Amount for such Distribution Date.
(c) If and to the extent that any Advance is determined to be a
Nonrecoverable Advance, such Advance or interest thereon is reimbursed out of
general principal collections on the Mortgage Pool as contemplated by Section
1.03(a) above or if any Workout-Delayed Reimbursement Amount is paid from
principal collections on the Mortgage Pool, and the particular item for which
such Advance was originally made is subsequently collected (in whole or in part)
out of payments or other collections in respect of the related Mortgage Loan (or
Loan Group if applicable) or REO Mortgage Loan (such item, and interest thereon,
to the extent such interest was paid out of general collections on the Mortgage
Pool, if and to the extent so collected, a "Recovered Amount"), then for
purposes of calculating the Adjusted Principal Distribution Amount for the
Distribution Date that corresponds to the Collection Period in which such item
was recovered, such Recovered Amount (to the extent not already included
therein) shall be added to the Principal Distribution Amount for such
Distribution Date.
(d) Nothing contained in this Section 1.03 is intended to limit the
ability of any party hereto that is entitled to reimbursement hereunder for any
unreimbursed Advances that have been or are determined to be Nonrecoverable
Advances (together with interest accrued and payable thereon pursuant to Section
3.12(b) or Section 4.03(d)) to collections of principal Received by the Trust
with respect to the Mortgage Pool; instead the order of priority set forth in
Section 1.03(a) is a deemed allocation only for purposes of calculating
distributions on the Certificates.
Section 1.04 Certain Calculations Relating to REO Loans.
(a) Each REO Loan shall be deemed to have an initial unpaid
principal balance and Stated Principal Balance equal to the unpaid principal
balance and Stated Principal Balance, respectively, of its predecessor Loan as
of the date of the related REO Acquisition. All Monthly Payments (other than a
Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Loan
delinquent in respect of its Balloon Payment) and other amounts due and owing,
or deemed to be due and owing, in respect of the predecessor Loan as of the date
of the related REO Acquisition, shall be deemed to continue to be due and owing
in respect of an REO Loan.
Amounts Received with respect to each REO Loan that is a successor
to a Serviced Loan (after provision for amounts to be applied to the payment of,
or to be reimbursed (1) to the Master Servicer or the Special Servicer for the
payment of, the costs of operating, managing and maintaining the related REO
Property and (2) to the Master Servicer, the Special Servicer, the Trustee or
the Fiscal Agent for the reimbursement of any outstanding unreimbursed Advances
on such REO Loan (and predecessor Loan) and interest thereon) shall be treated:
first, as a recovery of any amounts withdrawn from general principal collections
on the Mortgage Pool in order to reimburse any Workout-Delayed Reimbursement
Amounts and Nonrecoverable Advance with respect to such Loan and interest on any
such Advance; second, as a recovery of accrued and unpaid interest on such REO
Loan at the related Mortgage Rate to but not including the Due Date in the
Collection Period of receipt; third, as a recovery of principal of such REO Loan
to the extent of its entire unpaid principal balance (to the extent not already
reimbursed pursuant to clause first above); and fourth, in accordance with the
normal servicing practices of the Master Servicer, as a recovery of any other
amounts due and owing in respect of such REO Loan; provided that if the Loans
comprising a Serviced Loan Group become REO Loans, amounts Received with respect
to such REO Loans shall be applied to amounts due and owing in respect of such
REO Loans as provided in the related Co-Lender Agreement. Notwithstanding the
foregoing, all amounts payable or reimbursable to the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent or the Trust in respect of the
predecessor Loan as of the date of the related REO Acquisition, including any
unpaid Servicing Fees and any unreimbursed Servicing Advances and P&I Advances,
together with any interest accrued and payable to the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent in respect of such Servicing
Advances and P&I Advances (including any Unliquidated Advance) in accordance
with Sections 3.12(b), 4.03(d) and 4.03A(d), respectively, shall continue to be
payable or reimbursable to the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent or the Trust, as the case may be, in respect of an REO
Loan.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Creation of Trust; Conveyance of Mortgage Loans and
Loan REMIC Interests.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and that such trust be
designated as "Commercial Mortgage Trust 2004-GG1, Commercial Mortgage
Pass-Through Certificates, Series 2004-GG1." LaSalle Bank National Association
is hereby appointed, and does hereby agree, to act as Trustee hereunder and, in
such capacity, to hold the Trust Fund in trust for the exclusive use and benefit
of all present and future Certificateholders. The Depositor, concurrently with
the execution and delivery hereof, does hereby assign, sell, transfer, set over
and otherwise convey to the Trustee in trust, without recourse, for the benefit
of the Certificateholders, all the right, title and interest of the Depositor
in, to and under (i) the Mortgage Loans, (ii) the Mortgage Loan Purchase
Agreement, (iii) the Co-Lender Agreements, (iv) the Loan REMIC Interests, and
(v) all other assets included or to be included in the Trust Fund. Such
assignment includes all interest and principal received or receivable on or with
respect to the Mortgage Loans and due after the Cut-off Date and, in the case of
each Loan Group Trust Mortgage Loan, is subject to the related Co-Lender
Agreement and/or the related Lead PSA.
The parties hereto acknowledge and agree that, notwithstanding
Section 11.07, the transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by them to constitute a
sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct each Mortgage Loan Seller
(pursuant to the applicable Mortgage Loan Purchase Agreement) to deliver to and
deposit with the Trustee or a Custodian appointed thereby (with a copy to the
Master Servicer), on or before the Closing Date, the Mortgage File for each
Mortgage Loan (in connection with the Non-Serviced Trust Loans, the original
Mortgage File for such Mortgage Loan other than the related Mortgage Note shall
be held by the applicable Lead Trustee pursuant to the applicable Lead PSA on
behalf of the Trust Fund and the Certificateholders), with copies of the related
reserve and cash management agreements for such Mortgage Loan to be delivered to
the Master Servicer and the Special Servicer. With respect to the Deerbrook Mall
Mortgage Loan, the Southland Mall Mortgage Loan and the Water Tower Place Trust
Loan, the obligation of each of Commerzbank and GSMC to deliver a Mortgage Note
to the Trustee or a Custodian appointed thereby shall be limited to delivering
only the Mortgage Note held by such party to the Trustee or Custodian appointed
thereby. With respect to any of the Deerbrook Mall Mortgage Loan and the
Southland Mall Mortgage Loan, either Commerzbank or GSMC may deliver one
Mortgage File or one of any other document required to be delivered with respect
to such Mortgage Loan hereunder and such delivery shall satisfy such delivery
requirements for both Commerzbank and GSMC. None of the Trustee, any Custodian,
the Master Servicer or the Special Servicer shall be liable for any failure by a
Mortgage Loan Seller or the Depositor to comply with the document delivery
requirements of the applicable Mortgage Loan Purchase Agreement and this Section
2.01(b).
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 Depositor hereby represents and warrants that each Mortgage
Loan Seller has covenanted in the applicable Mortgage Loan Purchase Agreement
that it shall bear the costs related to recording or filing, as the case may be,
in the appropriate public office for real property records or UCC Financing
Statements, as appropriate, each related assignment of Mortgage and assignment
of Assignment of Leases, in favor of the Trustee referred to in clause (a)(iv)
of the definition of "Mortgage File" and each related UCC-2 and UCC-3 assignment
referred to in clause (a)(viii) of the definition of "Mortgage File" and the
Trustee shall promptly undertake to record or file any such document upon its
receipt thereof. This paragraph shall not apply to any Non-Serviced Trust Loan,
because the documents referred to in this paragraph have been assigned to the
applicable Lead Trustee.
The Depositor hereby represents and warrants that each Mortgage Loan
Seller has covenanted in the applicable Mortgage Loan Purchase Agreement as to
each Serviced Mortgage Loan, that if it cannot deliver or cause to be delivered
the documents and/or instruments referred to in clauses (a)(ii), (a)(iii),
(a)(vi) (if recorded) and (a)(viii) of the definition of "Mortgage File" solely
because of a delay caused by the public recording office where such document or
instrument has been delivered for recordation, a copy of the original certified
by the applicable Mortgage Loan Seller to be a true and complete copy of the
original thereof submitted for recording, shall be forwarded to the Trustee.
Each assignment referred to in the second preceding paragraph that
is recorded by the Trustee shall reflect that it should be returned by the
public recording office to the Trustee or its agent following recording, and
each UCC-2 and UCC-3 assignment referred to in the second preceding paragraph
that is filed by the Trustee shall reflect that the file copy thereof should be
returned to the Trustee or its agent following filing; provided that, in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Trustee shall obtain
therefrom a certified copy of the recorded original. On a monthly basis, at the
expense of the applicable Mortgage Loan Seller, the Trustee shall forward to the
Master Servicer a copy of each of the aforementioned assignments following the
Trustee's receipt thereof.
If any of the aforementioned assignments is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, then the
Trustee shall direct the applicable Mortgage Loan Seller (pursuant to the
applicable Mortgage Loan Purchase Agreement) promptly to prepare or cause the
preparation of a substitute therefor or to cure such defect, as the case may be,
and to deliver to the Trustee the substitute or corrected document. The Trustee
shall upon receipt from the applicable Mortgage Loan Seller cause the same to be
duly recorded or filed, as appropriate.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct each Mortgage Loan Seller
(pursuant to the applicable Mortgage Loan Purchase Agreement) to deliver to and
deposit (or cause to be delivered and deposited) with the Master Servicer within
10 Business Days after the Closing Date, documents and records that (A) relate
to the servicing and administration of the Serviced Loans, (B) are reasonably
necessary for the ongoing administration and/or servicing of the Serviced Loans
under this Agreement (including any asset summaries related to the Mortgage
Loans that were delivered to the Rating Agencies in connection with the rating
of the Certificates) and (C) are in possession or under control of the
applicable Mortgage Loan Seller, together with (i) all unapplied Escrow Payments
and Reserve Funds in the possession of the applicable Mortgage Loan Seller that
relate to such Serviced Loans and (ii) a statement indicating which Escrow
Payments and Reserve Funds are allocable to such Serviced Loans, provided that
the applicable Mortgage Loan Seller shall not be required to deliver any draft
documents, privileged or other internal communications, credit underwriting, due
diligence analyses or data, or internal worksheets, memoranda, communications or
evaluations. The Master Servicer shall hold all such documents, records and
funds on behalf of the Trustee in trust for the benefit of the
Certificateholders (and, insofar as they also relate to the Companion Loans, on
behalf of and for the benefit of the applicable Companion Loan Noteholder). With
respect to the Deerbrook Mall Mortgage Loan and the Southland Mall Mortgage
Loan, either Commerzbank or GSMC may make the deliveries required by this
paragraph to satisfy the delivery requirements of both Commerzbank and GSMC
under this paragraph.
(e) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, set over and otherwise conveys to the Trustee for
the benefit of the Certificateholders without recourse (except to the extent
herein provided) all the right, title and interest of the Depositor in, to and
under each Loan REMIC Interest and each related Loan REMIC Declaration. The
Trustee shall administer each Loan REMIC in accordance with Section 10.01
hereof.
(f) It is not intended that this Agreement create a partnership or a
joint-stock association.
Section 2.02 Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
hereby accepts receipt, directly or through a Custodian on its behalf, of (i)
the Mortgage Loans and all documents delivered to it that constitute portions of
the related Mortgage Files and (ii) all other assets delivered to it and
included in the Trust Fund, in good faith and without notice of any adverse
claim, and declares that it or a Custodian on its behalf holds and will hold
such documents and any other documents subsequently received by it that
constitute portions of the Mortgage Files, and that it holds and will hold the
Mortgage Loans and such other assets, together with any other assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
The Trustee (i) with respect to each Serviced Loan Group, shall also
hold the portion of such Mortgage File that relates to the Companion Loan in
such Loan Group in trust for the use and benefit of the related Companion Loan
Noteholder and (ii) with respect to each Loan Group, hereby assumes the
obligations and rights of the holder of the related Loan Group Trust Mortgage
Loan under the applicable Co-Lender Agreement and/or applicable Lead PSA.
In connection with the foregoing, the Trustee hereby certifies to
each of the other parties hereto, each Mortgage Loan Seller and each Underwriter
that, as to each Mortgage Loan, except as specifically identified in the
Schedule of Exceptions to Mortgage File Delivery attached hereto as Schedule II,
(i) all documents specified in clauses (a)(i), (ii), (vii), (ix), (xi) and (xix)
of the definition of "Mortgage File" (but in the case of documents specified in
clauses (ix) and (xix) only to the extent the Trustee or a Custodian on its
behalf has actual knowledge of their existence) of the definition of "Mortgage
File" are in its possession or the possession of a Custodian on its behalf
(other than in respect of the Non-Serviced Trust Loans, with the exception of
the related Mortgage Note and the related endorsements specified in clause
(a)(i)(A) of the definition of "Mortgage File"), and (ii) the original Mortgage
Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage
Note) received by it or any Custodian with respect to such Mortgage Loan has
been reviewed by it or by such Custodian on its behalf and (A) appears regular
on its face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appears to have been executed
(where appropriate) and (C) purports to relate to such Mortgage Loan.
(b) On or about the 45th day following the Closing Date (and, if any
exceptions are noted, again on or about the 90th day following the Closing Date
and monthly thereafter until the earliest of (i) the second anniversary of the
Closing Date, (ii) the day on which all material exceptions have been removed
and (iii) the day on which the Depositor has repurchased the last affected
Mortgage Loan), the Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to each Mortgage Loan,
and the Trustee shall, subject to Sections 2.01, 2.02(c) and 2.02(d), certify in
writing (substantially in the form of Exhibit C hereto) to each of the other
parties hereto, each Mortgage Loan Seller and each Underwriter (and, in the case
of a Serviced Loan Group, to the related Companion Loan Noteholder, upon
request) that, as to each Mortgage Loan (other than in respect of the
Non-Serviced Trust Loans, with the exception of the related Mortgage Note and
the related endorsements specified in clause (a)(i)(A) of the definition of
"Mortgage File") then subject to this Agreement (except as specifically
identified in any exception report annexed to such certification): (i) all
documents specified in clauses (a)(i) through (a)(v), (a)(vii) and, if
applicable, (a)(viii) (without regard to the second parenthetical in such clause
(a)(viii)) of the definition of "Mortgage File") that are required to be
delivered hereunder have been delivered; (ii) the recordation/filing
contemplated by Section 2.01(c) has been completed (based solely on receipt by
the Trustee of the particular recorded/filed documents); (iii) all documents
received by it or any Custodian with respect to such Loan have been reviewed by
it or by such Custodian on its behalf and (A) appear regular on their face
(handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appear to have been executed
(where appropriate) and (C) purport to relate to such Mortgage Loan; and (iv)
based on the examinations referred to in Section 2.02(a) above and this Section
2.02(b) and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clauses (v) and
(vi)(B) of the definition of "Mortgage Loan Schedule" accurately reflects the
information set forth in the Mortgage File. With respect to the items listed in
clauses (ii), (iii), (iv) and, if applicable, (vi) of the definition of Mortgage
File if the original of such document is not in the Trustee's possession because
it has not been returned from the applicable recording office, then the
Trustee's or Custodian's certification prepared pursuant to this Section 2.02(b)
should indicate the absence of such original. If the Trustee's obligation to
deliver the certifications contemplated in this subsection terminates because
two years have elapsed since the Closing Date, the Trustee shall deliver a
comparable certification to any party hereto, the applicable Companion Loan
Noteholder and any Underwriter on request.
(c) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Loans delivered to it to determine that the same are valid, legal, effective,
genuine, binding, enforceable, sufficient or appropriate for the represented
purpose or that they are other than what they purport to be on their face.
Furthermore, none of the Trustee, the Master Servicer, the Special Servicer or
any Custodian shall have any responsibility for determining whether the text of
any assignment or endorsement is in proper or recordable form, whether the
requisite recording of any document is in accordance with the requirements of
any applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction.
(d) It is understood that the scope of the Trustee's review of the
Mortgage Files is limited solely to confirming that the documents specified in
clauses (a)(i) through (a)(v), (a)(vii) and (a)(viii) of the definition of
"Mortgage File" have been received and such additional information as will be
necessary for delivering the certifications required by Sections 2.02(a) and (b)
above.
(e) If, after the Closing Date, the Depositor comes into possession
of any documents or records that constitute part of the Mortgage File or
Servicing File for any Mortgage Loan, the Depositor shall promptly deliver such
document to the Trustee (if it constitutes part of the Mortgage File) or the
Master Servicer (if it constitutes part of the Servicing File), as applicable.
Section 2.03 Repurchase of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties.
(a) If any party hereto discovers that any document constituting a
part of a Mortgage File (or, with respect to a Non-Serviced Trust Loan, the
related Mortgage Note and the related endorsements specified in clause (a)(i)(A)
of the definition of "Mortgage File") has not been properly executed, is
missing, contains information that does not conform in any material respect with
the corresponding information set forth in the Mortgage Loan Schedule, or does
not appear to be regular on its face (each, a "Document Defect"), or discovers
or receives notice of a breach of any representation or warranty of a Mortgage
Loan Seller made pursuant to Section 3(b) of the applicable Mortgage Loan
Purchase Agreement with respect to any Mortgage Loan (a "Breach"), such party
shall give prompt written notice thereof to each of the Rating Agencies, the
applicable Mortgage Loan Seller and the other parties hereto. If any such
Document Defect or Breach with respect to any Mortgage Loan materially and
adversely affects the value of the Mortgage Loan or the related Mortgaged
Property or the interests of the Certificateholders therein, then such Document
Defect shall constitute a "Material Document Defect" or such Breach shall
constitute a "Material Breach," as the case may be. Promptly upon becoming aware
of any such Material Document Defect or Material Breach (including through a
written notice given by any party hereto, as provided above), the Trustee shall
require the applicable Mortgage Loan Seller, not later than 90 days from the
earlier of the Mortgage Loan Seller's discovery or receipt of notice of such
Material Document Defect or Material Breach, as the case may be (or, in the case
of a Material Document Defect or Material Breach relating to a Mortgage Loan not
being a "qualified mortgage" within the meaning of the REMIC Provisions, not
later than 90 days of any party discovering such Material Document Defect or
Material Breach), to cure the same in all material respects (which cure shall
include payment of losses and any Additional Trust Fund Expenses associated
therewith) or repurchase the affected Mortgage Loan (or the related Mortgage
Loan Seller's portion thereof with respect to the Deerbrook Mall Mortgage Loan,
the Southland Mall Mortgage Loan and the Water Tower Place Trust Loan) or any
related REO Property (or, in the case of an REO Property that relates to a Loan
Group Trust Mortgage Loan, the Trust Fund's interest in the related REO Property
and in the case of Deerbrook Mall Mortgage Loan, the Southland Mall Mortgage
Loan and the Water Tower Place Trust Loan, the interest in the REO Property that
corresponds to the related Mortgage Loan Seller's portion thereof) at the
applicable Purchase Price by wire transfer of immediately available funds to the
Pool Custodial Account (or, in the case of a Loan Group Trust Mortgage Loan or
an REO Property that relates to a Loan Group Trust Mortgage Loan, to the related
Loan Group REO Account); provided, however, that if (i) such Material Document
Defect or Material Breach is capable of being cured but not within the
applicable 90-day period, (ii) such Material Document Defect or Material Breach
is not related to any Mortgage Loan's not being a "qualified mortgage" within
the meaning of the REMIC Provisions, (iii) the applicable Mortgage Loan Seller
has commenced and is diligently proceeding with the cure of such Material
Document Defect or Material Breach within such 90-day period and (iv) the
affected Mortgage Loan is not then a Specially Serviced Mortgage Loan, then the
applicable Mortgage Loan Seller shall have an additional 90 days to complete
such cure or, in the event of a failure to so cure, to complete such repurchase
(it being understood and agreed that, in connection with the applicable Mortgage
Loan Seller's receiving such additional 90-day period, the applicable Mortgage
Loan Seller shall deliver an Officer's Certificate to the Trustee setting forth
the reasons such Material Document Defect or Material Breach is not capable of
being cured within the initial 90-day period and what actions the applicable
Mortgage Loan Seller is pursuing in connection with the cure thereof and stating
that the applicable Mortgage Loan Seller anticipates that such Material Document
Defect or Material Breach will be cured within such additional 90-day period);
and provided, further, that, if any such Material Document Defect is still not
cured after the initial 90-day period and any such additional 90-day period
solely due to the failure of the applicable Mortgage Loan Seller to have
received the recorded document, then the applicable Mortgage Loan Seller shall
be entitled to continue to defer its cure and repurchase obligations in respect
of such Document Defect so long as the applicable Mortgage Loan Seller certifies
to the Trustee every 30 days thereafter that the Document Defect is still in
effect solely because of its failure to have received the recorded document and
that the applicable Mortgage Loan Seller is diligently pursuing the cure of such
defect (specifying the actions being taken), except that no such deferral of
cure or repurchase may continue beyond the second anniversary of the Closing
Date. Provided that the Master Servicer has notice of such Material Document
Defect or Material Breach, the Master Servicer shall notify the Mortgage Loan
Seller if the related Mortgage Loan becomes a Specially Serviced Mortgage Loan
during any applicable cure periods. Any of the following document defects shall
be conclusively presumed to be a Material Document Defect: (a) the absence from
the Mortgage File of the original signed Mortgage Note, together with the
endorsements referred to in clause (a)(i) of the definition of "Mortgage File,"
unless the Mortgage File contains a signed lost note affidavit and indemnity
with respect to the missing Mortgage Note and any missing endorsements that
appears to be regular on its face, (b) other than with respect to a Non-Serviced
Trust Loan, the absence from the Mortgage File of the original executed Mortgage
or a copy of such Mortgage certified by the local authority with which the
Mortgage was recorded, in each case with evidence of recording thereon, that
appears to be regular on its face, unless there is included in the Mortgage File
a copy of the executed Mortgage and a certificate stating that the original
signed Mortgage was sent for recordation, (c) other than with respect to a
Non-Serviced Trust Loan, the absence from the Mortgage File of the original or a
copy of the lender's title insurance policy, together with all endorsements or
riders (or copies thereof) that were issued with or subsequent to the issuance
of such policy, or marked up insurance binder or title commitment which is
marked as a binding commitment and countersigned by title company, insuring the
priority of the Mortgage as a first lien on the Mortgaged Property, (d) other
than with respect to a Non-Serviced Trust Loan, the absence from the Mortgage
File of any intervening assignments required to create a complete chain of
assignment to the Trustee on behalf of the Trust and a certificate stating that
the original intervening assignments were sent for recordation, unless there is
included in the Mortgage File a certified copy of the intervening assignment or
(e) other than with respect to a Non-Serviced Trust Loan, the absence from the
Servicing File of any original letter of credit.
With respect to the Deerbrook Mall Mortgage Loan, the Southland Mall
Mortgage Loan and the Water Tower Place Trust Loan, the obligations of each of
Commerzbank and GSMC to cure or repurchase with respect to a Material Document
Defect or Material Breach with respect to the related Mortgage Loan shall be
limited to a cure or repurchase with respect to the Mortgage Note it sold to the
Depositor in accordance with the related Mortgage Loan Purchase Agreement. With
respect to the Deerbrook Mall Mortgage Loan, the Southland Mall Mortgage Loan
and the Water Tower Place Trust Loan, any cure by either of Commerzbank or GSMC
with respect to the Mortgage Note it sold to the Depositor in accordance with
the related Mortgage Loan Purchase Agreement that also cures the Material
Document Defect or Material Breach with respect to the related Mortgage Loan
shall satisfy the cure obligations of both Commerzbank and GSMC with respect to
such Mortgage Loan.
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(a), then, prior to the subject repurchase, the
applicable Mortgage Loan Seller or its designee shall use its reasonable
efforts, subject to the terms of the related Mortgage Loan(s), to prepare and,
to the extent necessary and appropriate, have executed by the related Mortgagor
and record, such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loan(s) in such
Cross-Collateralized Group that are to be repurchased, on the one hand, and the
remaining Mortgage Loan(s) therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly corresponding thereto;
provided that no such termination shall be effected unless and until (i) the
Controlling Class Directing Holder acting as the Directing Holder, if one is
then acting, has consented (which consent shall not be unreasonably withheld and
shall be deemed to have been given if no written objection is received by the
applicable Mortgage Loan Seller within 10 Business Days of such Directing
Holder's receipt of a written request for such consent), (ii) the Trustee has
received from the applicable Mortgage Loan Seller (A) an Opinion of Counsel to
the effect that such termination would not cause an Adverse REMIC Event to occur
with respect to either REMIC Pool and (B) written confirmation from each Rating
Agency that such termination would not cause an Adverse Rating Event to occur
with respect to any Class of Certificates, (iii) the debt service coverage ratio
for the four preceding calendar quarters for all of the Mortgage Loans relating
to such Cross-Collateralized Group remaining is not less than 0.05x below the
debt service coverage ratio for all Mortgage Loans of such Cross-Collateralized
Group (including the affected Mortgage Loan) set forth in the Prospectus
Supplement, (iv) the loan-to-value ratio for all of the Mortgage Loans of such
Cross-Collateralized Group remaining is not greater than 5% more than the
loan-to-value ratio for all Mortgage Loans of such Cross-Collateralized Group
(including the affected Mortgage Loan) set forth in the Prospectus Supplement;
and provided, further, that the applicable Mortgage Loan Seller may, at its
option, purchase the entire subject Cross-Collateralized Group in lieu of
effecting a termination of the cross-collateralization. All costs and expenses
incurred by the Trustee or any Person on its behalf pursuant to this paragraph
shall be included in the calculation of the Purchase Price for the Mortgage
Loan(s) to be repurchased. If the cross-collateralization of any
Cross-Collateralized Group is not or cannot be terminated as contemplated by
this paragraph, then, for purposes of (i) determining whether any Breach or
Document Defect, as the case may be, is a Material Breach or Material Document
Defect, and (ii) the application of remedies, such Cross-Collateralized Group
shall be treated as a single Mortgage Loan.
(b) In connection with any repurchase of a Mortgage Loan pursuant to
this Section 2.03, and subject to Section 3.26, the Trustee, the Custodian, the
Master Servicer and the Special Servicer shall each tender to the repurchasing
entity, upon delivery to each of them of a receipt executed by the repurchasing
entity, all portions (including, without limitation, the Servicing File) of the
Mortgage File and other documents pertaining to such Mortgage Loan possessed by
it, and each document that constitutes a part of the Mortgage File shall be
endorsed or assigned to the extent necessary or appropriate to the repurchasing
entity or its designee in the same manner, but only if the respective documents
have been previously assigned or endorsed to the Trustee, and pursuant to
appropriate forms of assignment, substantially similar to the manner and forms
pursuant to which such documents were previously assigned to the Trustee;
provided that such tender by the Trustee shall be conditioned upon its receipt
from the Master Servicer of a Request for Release and an Officer's Certificate
to the effect that the requirements for repurchase have been satisfied. The
Master Servicer shall, and is hereby authorized and empowered by the Trustee to,
prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.03(c), and such other instruments as
may be necessary or appropriate to transfer title to an REO Property in
connection with the repurchase of an REO Loan and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer.
In connection with the repurchase of any Loan REMIC Loan, as
contemplated by this Section 2.03, the related Mortgage Loan Seller shall be
deemed to repurchase the related Loan REMIC Interests, and the Trustee shall
have no further responsibility for administering the related Loan REMIC pursuant
to this Agreement.
(c) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of a Mortgage Loan Seller
set forth in, or made pursuant to, paragraph 23 or paragraph 43 of Exhibit B to
the applicable Mortgage Loan Purchase Agreement, specifically relating to
whether or not the Mortgage Loan documents or any particular Mortgage Loan
document for any Mortgage Loan requires the related Mortgagor to bear the Rating
Agency fees reflected in paragraph 23 or reasonable costs and expenses
associated with a defeasance, as set forth in paragraph 43 of Exhibit B to the
Mortgage Loan Purchase Agreement (any such fees, costs or expenses, referred to
in this subsection (d) as "Covered Costs"), then the Master Servicer shall
direct the applicable Mortgage Loan Seller in writing to wire transfer to the
Pool Custodial Account, within 90 days of receipt of such direction, the amount
of any such reasonable costs and expenses incurred by the Trust that (i)
otherwise would have been required to be paid by the Mortgagor if such
representation or warranty with respect to such costs and expenses had in fact
been true, as set forth in the related representation or warranty, (ii) have not
been paid by the Mortgagor, (iii) are the basis of such Breach and (iv)
constitute "Covered Costs." If any amount is due under the preceding sentence
for the Deerbrook Mall Mortgage Loan, the Southland Mall Mortgage Loan or the
Water Tower Place Trust Loan, then each of Commerzbank and GSMC shall be
required to wire transfer only such party's pro rata share (i.e., 50%) of such
amount. Upon payment of such costs, the applicable Mortgage Loan Seller shall be
deemed to have cured such Breach in all respects. Provided that such payment is
made, this paragraph describes the sole remedy available to the
Certificateholders and the Trustee on their behalf regarding any such Breach,
regardless of whether it constitutes a Material Breach, and neither the
Depositor nor the applicable Mortgage Loan Seller shall be obligated to
otherwise cure such Breach or repurchase the affected Mortgage Loan under any
circumstances. Amounts deposited in the Pool Custodial Account pursuant to this
paragraph shall constitute "Liquidation Proceeds" for all purposes of this
Agreement (other than Section 3.11(c)).
(d) Each Mortgage Loan Purchase Agreement and Section 2.03(a)
provide the sole remedies available to the Certificateholders, or the Trustee on
behalf of the Certificateholders, respecting any Document Defect or Breach with
respect to any Mortgage Loan.
Section 2.04 Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents, warrants and covenants to the
Trustee, for its own benefit and the benefit of the Certificateholders and to
the Fiscal Agent, the Master Servicer, the Special Servicer and Companion Loan
Noteholders, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and
clear of all liens, claims, encumbrances and other interests with the full
right to transfer the Mortgage Loans to the Trust and the Mortgage Loans
have been validly transferred to the Trust.
The representations, warranties and covenants of the Depositor set
forth in this Section 2.04 shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of such representations, warranties and
covenants, the party discovering such breach shall give prompt written notice
thereof to the other parties.
Section 2.05 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.
The Trustee hereby acknowledges the assignment to it of the Mortgage
Loans, each Loan REMIC Regular Interest and each Loan REMIC Residual Interest,
and, subject to Sections 2.01 and 2.02, the delivery to it or a Custodian on its
behalf of the Mortgage Files and a fully executed original counterpart of the
Mortgage Loan Purchase Agreement, together with the assignment to it of all
other assets included in the Trust Fund. Concurrently with such assignment and
delivery and in exchange therefor, the Trustee (i)
acknowledges and hereby declares that it holds each Loan REMIC Regular Interest
on behalf of the Lower-Tier REMIC and the Certificateholders and holds each Loan
REMIC Residual Interest on behalf of the Holders of the Class R-I Certificates;
(ii) acknowledges the issuance of the Uncertificated Lower-Tier Interests to or
upon the order of the Depositor, (iii) acknowledges and hereby declares that it
holds the Uncertificated Lower-Tier Interests on behalf of the Upper-Tier REMIC
and Holders of the Certificates (other than the Class R-I Certificates) and (iv)
acknowledges the execution by the Certificate Registrar and the authentication
and delivery by the Authenticating Agent of the Class R-I Certificates to or
upon the order of the Depositor, in exchange for the Mortgage Loans (other than
the Loan REMIC Loans) and the Loan REMIC Regular Interests, receipt of which is
hereby acknowledged, and immediately thereafter, the Trustee acknowledges that
it has caused the Certificate Registrar to execute and caused the Authenticating
Agent to authenticate and to deliver to or upon the order of the Depositor, in
exchange for the Uncertificated Lower-Tier Interests, the Regular Interest
Certificates and the Class R-II Certificates, and the Depositor hereby
acknowledges the receipt by it or its designees, of such Certificates in
authorized denominations evidencing the entire beneficial ownership of the
Upper-Tier REMIC.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Loans.
(a) All of the Serviced Loans and REO Properties (which does not
include the Non-Serviced Loan Groups) are to be serviced and administered by the
Master Servicer and/or the Special Servicer hereunder. Each of the Master
Servicer and the Special Servicer shall service and administer the Serviced
Loans and REO Properties that it is obligated to service and administer pursuant
to this Agreement on behalf of the Trustee, for the benefit of the
Certificateholders (or, in the case of the Companion Loans, on behalf of the
related Companion Loan Noteholders), as determined in the good faith and
reasonable judgment of the Master Servicer or the Special Servicer, as the case
may be, in accordance with: (i) any and all applicable laws; (ii) the express
terms of this Agreement, the respective Serviced Loans and, in the case of the
Loan Groups, the related Co-Lender Agreement; and (iii) to the extent consistent
with the foregoing, 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 Mortgage Loan as and when
necessary and appropriate consistent with the Servicing Standard. Without
limiting the foregoing, and subject to Section 3.22, (i) the Master Servicer
shall service and administer all of the Performing Serviced Loans and shall
render such services with respect to the Specially Serviced Loans as are
specifically provided for herein, and (ii) the Special Servicer shall service
and administer each Specially Serviced Loan and REO Property and shall render
such services with respect to the Performing Serviced Loans as are specifically
provided for herein. All references herein to the respective duties of the
Master Servicer and the Special Servicer, and to the areas in which they may
exercise discretion, shall be subject to Section 3.22.
The parties hereto acknowledge that the Non-Serviced Loan Groups and
any related REO property are being serviced and administered under the
applicable Lead PSA and the applicable Lead Master Servicer will make any
advances required thereunder in respect of such loan and remit collections on
the Non-Serviced Trust Loans to or on behalf of the Trust. The Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent shall have no obligation
or authority to supervise the applicable Lead Master Servicer, the applicable
Lead Special Servicer, the applicable Lead Trustee or the applicable Lead Fiscal
Agent or to make Servicing Advances or P&I Advances, except as described in
Section 4.03A with respect to P&I Advances to be made by the Master Servicer,
the Trustee or the Fiscal Agent with respect to certain of the Non-Serviced
Trust Loans. Although the Non-Serviced Loan Groups are being serviced under the
applicable Lead PSA, the Controlling Class Directing Holder will have certain
rights relating to the servicing of the Non-Serviced Loan Groups pursuant to the
applicable Lead PSA and the applicable Co-Lender Agreement. The obligation of
the Master Servicer to provide information and collections to the Trustee and
the Certi?cateholders with respect to the Non-Serviced Loan Groups shall be
dependent on its receipt of the corresponding information and collections from
the applicable Lead Master Servicer or the applicable Lead Special Servicer.
(b) Subject to Section 3.01(a) and Section 6.11 (taking account of
Section 6.11(b)), the Master Servicer and the Special Servicer shall each have
full power and authority, acting alone or through sub-servicers, to do or cause
to be done any and all things in connection with the servicing and
administration contemplated by Section 3.01(a) that it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the Master
Servicer and the Special Servicer, in its own name, with respect to each of the
Serviced Loans it is obligated to service hereunder, is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders, the Trustee and the Companion Loan Noteholders or any of
them, (i) any and all financing statements, continuation statements and other
documents or instruments necessary to maintain the lien created by any Mortgage
or other security document in the related Mortgage File on the related Mortgaged
Property and related collateral; (ii) in accordance with the Servicing Standard
and subject to Section 3.21 and Section 6.11 (taking account of Section
6.11(b)), any and all modifications, extensions, waivers, amendments or consents
to or with respect to any documents contained in the related Mortgage File;
(iii) any and all instruments of satisfaction or cancellation, or of partial or
full release or discharge or of assignment, and all other comparable
instruments; and (iv) any and all instruments that such party may be required to
execute on behalf of the Trustee in connection with the defeasance of a Serviced
Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee
shall, at the written request of the Master Servicer or the Special Servicer,
promptly execute any limited powers of attorney and other documents furnished by
the Master Servicer or the Special Servicer that are necessary or appropriate to
enable them to carry out their servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer or the Special Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall, without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Master Servicer's or Special Servicer's, as applicable,
representative capacity; or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be registered to do business in any state.
(c) The parties hereto acknowledge that the Loan Groups are subject
to the terms and conditions of the applicable Co-Lender Agreement. The parties
hereto further recognize the respective rights and obligations of the Loan Group
Trust Mortgage Loan holder, the Pari Passu Companion Loan holder and/or
Subordinate Companion Loan Noteholder under the applicable Co-Lender Agreement,
including with respect to (i) the allocation of collections on or in respect of
the Loan Groups in accordance with the applicable Co-Lender Agreement, (ii) the
making of payments to the Loan Group Trust Mortgage Loan holder, the Pari Passu
Companion Loan holder and/or Subordinate Companion Loan Noteholder in accordance
with the applicable Co-Lender Agreement, (iii) the purchase of the Loan Group
Trust Mortgage Loans by the related Subordinate Companion Loan Noteholders
(and/or, in the case of the 000 Xxxxxx Xxxxxx Loan Group, the Class OEA-B
Majority Holder) or their designees in accordance with the applicable Co-Lender
Agreement, and, if applicable, other related Companion Loan Noteholders under
the applicable Lead PSA and (iv) in the case where a Companion Loan Noteholder
(and, in the case of the 000 Xxxxxx Xxxxxx Loan Group, the Class OEA-B Majority
Holder) is the Directing Holder, the right of such Directing Holder to cure a
default of the related Mortgagor in accordance with the applicable Co-Lender
Agreement.
Notwithstanding the foregoing, if, at such time as any Serviced Loan
Group Trust Mortgage Loan shall no longer be part of the Trust Fund and a
separate servicing agreement with respect to the related Loan Group has not been
entered into in accordance with the terms of the related Co-Lender Agreement,
then, until such time as a separate servicing agreement is entered into and any
required Rating Agency confirmation is obtained, and notwithstanding that such
Serviced Loan Group Trust Mortgage Loan is no longer part of the Trust Fund, the
Master Servicer and, if applicable, the Special Servicer shall continue to
service such Loan Group or any related Loan Group REO Properties, as the case
may be, under this Agreement as if it were a separate servicing agreement, for
the benefit of each holder of a Loan in such Loan Group, and under any related
Co-Lender Agreement, with: (i) such Loan Group and the related Loan Group
Mortgaged Properties constituting the sole assets thereunder; and (ii)
references to the "Trustee," "Trust," "Certificateholders" (or any sub-group
thereof) and the "Controlling Class Directing Holder" being construed to refer
to the new holder of the Serviced Loan Group Trust Mortgage Loan that is no
longer included in the Trust Fund under the applicable Co-Lender Agreement.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and the Companion Loan Noteholders under this Agreement
is intended by the parties to be that of an independent contractor and not that
of a joint venturer, partner or agent.
Section 3.02 Collection of Loan Payments.
(a) Each of the Master Servicer (with respect to Performing Serviced
Loans) and the Special Servicer (with respect to Specially Serviced Loans) shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the Serviced Loans it is obligated to service hereunder and
shall follow such collection procedures as are consistent with the Servicing
Standard. The Special Servicer shall ensure that, with respect to Specially
Serviced Loans, the Mortgagors make payments directly to the Master Servicer;
provided that, in the event the Special Servicer receives a payment that should
have been made directly to the Master Servicer, the Special Servicer shall
promptly forward such payment to the Master Servicer. Upon receipt of any such
payment with respect to a Specially Serviced Loan, the Master Servicer shall
promptly notify the Special Servicer, and the Special Servicer shall direct the
Master Servicer as to the proper posting of such payment. Consistent with the
foregoing, the Special Servicer, with regard to a Specially Serviced Loan, or
the Master Servicer, with regard to a Performing Serviced Loan, may waive or
defer any Default Charges in connection with collecting any late payment on a
Serviced Loan; provided that without the consent of the Special Servicer in the
case of a proposed waiver by the Master Servicer, no such waiver or deferral may
be made by the Master Servicer pursuant to this Section 3.02 if any Advance has
been made as to such delinquent payment.
(b) All amounts Received with respect to any Cross-Collateralized
Group in the form of payments from Mortgagors, Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds, shall be applied by the Master Servicer among
the Mortgage Loans constituting such Cross-Collateralized Group in accordance
with the express provisions of the related Loan documents and, in the absence of
such express provisions or to the extent that such payments and other
collections may be applied at the discretion of the lender, on a pro rata basis
in accordance with the respective amounts then "due and owing" as to each such
Mortgage Loan.
(c) Except in the case of the Loan Groups, amounts Received in
respect of or allocable to any particular Mortgage Loan (whether or not such
Mortgage Loan constitutes part of a Cross-Collateralized Group) in the form of
payments from Mortgagors, Liquidation Proceeds, Condemnation Proceeds or
Insurance Proceeds shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage Note
and Mortgage and, in the absence of such express provisions or to the extent
that such payments and other collections may be applied at the discretion of the
lender, as follows (without duplication): first, as a recovery of any related
and unreimbursed Servicing Advances (together with interest thereon), and if
applicable, unpaid Liquidation Expenses, in each case to the extent such
application is permitted under the terms of the related Loan documents; second,
as a recovery of accrued and unpaid interest on, and principal of, such Mortgage
Loan to the extent of any outstanding P&I Advances and unpaid Master Servicing
Fees in respect of such Mortgage Loan, third, as a recovery of any
Nonrecoverable Advance and Unliquidated Advance in respect of such Mortgage Loan
and, in each case, interest thereon that was reimbursed from general principal
collections on the Mortgage Pool, to the extent such application is permitted
under the terms of the related Loan documents; fourth, as a recovery of any
remaining accrued and unpaid interest on such Mortgage Loan at the related
Mortgage Rate to, but not including, the related Due Date; fifth, as a recovery
of any remaining 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); sixth, unless a Liquidation Event has occurred with respect to such
Mortgage Loan, as a recovery of amounts to be currently applied to the payment
of, or escrowed for the future payment of, real estate taxes, assessments,
insurance premiums (including premiums on any Environmental Insurance Policy),
ground rents (if applicable) and similar items; seventh, unless a Liquidation
Event has occurred with respect to such Mortgage Loan, as a recovery of Reserve
Funds to the extent then required to be held in escrow; eighth, as a recovery of
any Prepayment Premium or Yield Maintenance Charge then due and owing under such
Mortgage Loan; ninth, as a recovery of any Default Charges then due and owing
under such Mortgage Loan; tenth, as a recovery of any assumption fees,
modification fees and extension fees then due and owing under such Mortgage
Loan; eleventh, as a recovery of any other amounts then due and owing under such
Mortgage Loan; and, twelfth, as a recovery of any remaining principal of such
Mortgage Loan to the extent of its entire remaining unpaid principal balance.
All amounts Received with respect to any Loan Group shall be applied
to amounts due and owing under such Loan Group (including for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Notes, the related Mortgage, the related loan agreement, if
any, and the related Co-Lender Agreement.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Serviced Mortgage Loans,
establish and maintain one or more accounts, in which all related Escrow
Payments shall be deposited and retained (each a "Servicing Account"). Subject
to the terms of the related Loan documents, each Servicing Account shall be an
Eligible Account. Withdrawals of amounts so collected from a Servicing Account
may be made (to the extent of amounts on deposit therein in respect of the
related Loan or, in the case of clauses (iv) and (v) below, to the extent of
interest or other income earned on such amounts) only for the following
purposes: (i) consistent with the related Loan documents, to effect the payment
of real estate taxes, assessments, insurance premiums (including premiums on any
Environmental Insurance Policy), ground rents (if applicable) and comparable
items in respect of the respective Mortgaged Properties; (ii) insofar as the
particular Escrow Payment represents a late payment that was intended to cover
an item described in the immediately preceding clause (i) for which a Servicing
Advance was made, to reimburse the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, as applicable, for such Servicing Advance; (iii) to
refund to Mortgagors any sums as may be determined to be overages; (iv) to pay
interest, if required and as described below, to Mortgagors on balances in such
Servicing Account; (v) to pay the Master Servicer interest and investment income
on balances in such Servicing Account as described in Section 3.06(b), if and to
the extent not required by law or the terms of the related Loan documents to be
paid to the Mortgagor; or (vi) to clear and terminate such Servicing Account at
the termination of this Agreement in accordance with Section 9.01. To the extent
permitted by law or the applicable Loan documents, funds in the Servicing
Accounts may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06. The Master Servicer shall pay or cause to be paid to
the Mortgagors interest, if any, earned on the investment of funds in the
related Servicing Accounts, if required by law or the terms of the related Loan.
If the Master Servicer shall deposit in a Servicing Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such Servicing Account, any provision herein to the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Serviced Loan,
(i) maintain accurate records with respect to the related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar items
that are or may become a lien thereon and the status of insurance premiums and
any ground rents payable in respect thereof and (ii) use reasonable efforts to
obtain, from time to time, all bills for (or otherwise confirm) the payment of
such items (including renewal premiums) and, if the subject Serviced Loan
requires the related Mortgagor to escrow for such items, shall effect payment
thereof prior to the applicable penalty or termination date. For purposes of
effecting any such payment for which it is responsible, the Master Servicer
shall apply Escrow Payments as allowed under the terms of the related Serviced
Loan (or, if such Serviced Loan does not require the related Mortgagor to escrow
for the payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and similar items, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause the related
Mortgagor to comply with the requirement of the related Mortgage that the
Mortgagor make payments in respect of such items at the time they first become
due and, in any event, prior to the institution of foreclosure or similar
proceedings with respect to the related Mortgaged Property for nonpayment of
such items). Subject to Section 3.12(d), the Master Servicer shall timely make a
Servicing Advance to cover any such item which is not so paid, including any
penalties or other charges arising from the Mortgagor's failure to timely pay
such items.
(c) The Master Servicer shall, as to each and every Serviced Loan,
make a Servicing Advance with respect to the related Mortgaged Property in an
amount equal to all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies
(including Environmental Insurance Policies), in each instance if and to the
extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor has failed to
pay such item on a timely basis. All such Servicing Advances shall be
reimbursable in the first instance from related collections from the Mortgagors,
and further as provided in Section 3.05(a) or 3.05A. No costs incurred by the
Master Servicer in effecting the payment of real estate taxes, assessments and,
if applicable, ground rents on or in respect of the Mortgaged Properties shall,
for purposes of this Agreement, including the Trustee's calculation of monthly
distributions to Certificateholders, be added to the unpaid Stated Principal
Balances of the related Serviced Loans, notwithstanding that the terms of such
Loans so permit. The foregoing shall in no way limit the Master Servicer's
ability to charge and collect from the Mortgagor such costs together with
interest thereon.
(d) The Master Servicer shall, as to all Serviced Loans, establish
and maintain, as applicable, one or more accounts ("Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made (i) for the specific purposes for which the
particular Reserve Funds were delivered, in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any other
agreement with the related Mortgagor governing such Reserve Funds, and (ii) to
pay the Master Servicer interest and investment income earned on amounts in the
Reserve Accounts as described below. To the extent permitted in the applicable
Loan documents, funds in the Reserve Accounts may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Subject to the
related Loan documents, all Reserve Accounts shall be Eligible Accounts.
Consistent with the Servicing Standard, the Master Servicer may waive or extend
the date set forth in any agreement governing Reserve Funds by which any
required repairs, capital improvements and/or environmental remediation at the
related Mortgaged Property must be completed; provided that any waiver, any
extension for more than 120 days and any subsequent extension may only be
granted with the consent of the Special Servicer.
Section 3.04 Pool Custodial Account, Defeasance Deposit Account,
Distribution Account, Interest Reserve Account and Excess Liquidation Proceeds
Account.
(a) The Master Servicer shall establish and maintain one or more
separate accounts (collectively, the "Pool Custodial Account"), in which the
amounts described in clauses (i) through (ix) below (which shall not include any
amounts allocable to the Companion Loans or the 000 Xxxxxx Xxxxxx Non-Pooled
Trust Loan) shall be deposited and held on behalf of the Trustee in trust for
the benefit of the Certificateholders and the Trustee as the Holder of the Loan
REMIC Interests and the Uncertificated Lower-Tier Interests. The Pool Custodial
Account shall be an Eligible Account. Amounts in the Pool Custodial Account
attributable to each Loan REMIC Loan will be assets of the related Loan REMIC.
The Master Servicer shall deposit or cause to be deposited in the Pool Custodial
Account, within one Business Day of receipt (in the case of payments by
Mortgagors or other collections on the Mortgage Loans (other than the 000 Xxxxxx
Xxxxxx Non-Pooled Trust Loan)) or as otherwise required hereunder, the following
payments and collections received or made by the Master Servicer or on its
behalf subsequent to the Cut-off Date (other than in respect of principal and
interest on the Mortgage Loans due and payable on or before the Cut-off Date,
which amounts shall be delivered promptly to the Depositor or its designee, with
negotiable instruments endorsed as necessary and appropriate without recourse,
and other than amounts required to be deposited in the Defeasance Deposit
Account), or payments (other than Principal Prepayments) received by it on or
prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal of the Serviced Mortgage
Loans, including Principal Prepayments, and regardless of whether those payments
are made by the related Mortgagor or any related guarantor, out of any related
Reserve Funds maintained for such purpose, out of collections on any related
Defeasance Collateral or from any other source;
(ii) all payments on account of interest on the Serviced Mortgage
Loans, including Default Interest, and regardless of whether those payments are
made by the related Mortgagor or any related guarantor, out of any related
Reserve Funds maintained for such purpose, out of collections on any related
Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of any Serviced Mortgage Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of any Serviced Mortgage Loan (including any
amounts paid by a Mortgagor or received as Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds that represent recoveries for an Advance (or
interest thereon) that was previously reimbursed to the party that made such
Advance as either a Nonrecoverable Advance or as a Workout-Delayed Reimbursement
Amount);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Pool Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.17(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor specifically to cover items for which a Servicing
Advance has been made; and
(ix) all amounts remitted or advanced by the applicable Lead Master
Servicer in respect of the Non-Serviced Trust Loans pursuant to the applicable
Lead PSA;
provided that any amounts described in clauses (i) through (iv) and (vi) through
(viii) above that relate to any Serviced Loan Group or any related REO Property
(other than Liquidation Proceeds derived from the sale of the Pooled Mortgage
Loans to or through the Companion Loan Noteholders (or in the case of the 000
Xxxxxx Xxxxxx Pooled Trust Loan, to or through the Class OEA-B Majority Holder
and/or the holder of the 000 Xxxxxx Xxxxxx Subordinate Companion Loan) pursuant
to the Co-Lender Agreement or as a Specially Serviced Mortgage Loan pursuant to
Section 3.19 or the repurchase of a Pooled Mortgage Loan by a Mortgage Loan
Seller) shall be deposited in the applicable Loan Group Custodial Account, and,
in any such case, shall thereafter be transferred to the Pool Custodial Account
(except in the case of amounts relating to the 000 Xxxxxx Xxxxxx Non-Pooled
Trust Loan, which shall be transferred to the Class OEA-B Sub-Account) as
provided in Section 3.05A.
The foregoing requirements for deposit in the Pool Custodial Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing a Mortgagor's payment of costs
and expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees not expressly
referred to in the prior paragraph need not be deposited by the Master Servicer
in the Pool Custodial Account. If the Master Servicer shall deposit in the Pool
Custodial Account any amount not required to be deposited therein, it may at any
time withdraw such amount from the Pool Custodial Account, any provision herein
to the contrary notwithstanding. The Master Servicer shall promptly deliver to
the Special Servicer, as additional special servicing compensation in accordance
with Section 3.11(c), all assumption fees and assumption application fees (or
the applicable portions thereof), and other transaction fees received by the
Master Servicer to which the Special Servicer is entitled pursuant to such
Section upon receipt of a written statement (on which the Master Servicer is
entitled to rely) of a Servicing Officer of the Special Servicer describing the
item and amount (unless pursuant to this Agreement it is otherwise clear that
the Special Servicer is entitled to such amounts, in which case a written
statement is not required). The Pool Custodial Account shall be maintained as a
segregated account, separate and apart from trust funds created for
mortgage-backed securities of other series and the other accounts of the Master
Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (vii) through (viii) above with respect to any Mortgage Loan (other
than any Mortgage Loan that is part of a Serviced Loan Group), the Special
Servicer shall promptly, but in no event later than two Business Days after
receipt, remit such amounts to the Master Servicer for deposit into the Pool
Custodial Account in accordance with the second preceding paragraph, unless the
Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement or
other appropriate reason. With respect to any such amounts paid by check to the
order of the Special Servicer, the Special Servicer shall endorse such check to
the order of the Master Servicer, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason. Any such amounts received by the Special Servicer with respect to an REO
Property (other than an REO Property that relates to a Loan Group) shall be
deposited by the Special Servicer into the Pool REO Account and thereafter
remitted to the Master Servicer for deposit into the Pool Custodial Account as
and to the extent provided in Section 3.17(c).
If and when any Mortgagor under a Defeasance Loan that is a Serviced
Loan elects to defease all or any part of its Loan and, pursuant to the
provisions of the related Loan documents, delivers cash to the Master Servicer
to purchase the required Defeasance Collateral, the Master Servicer shall
establish and maintain one or more separate segregated accounts (collectively,
the "Defeasance Deposit Account"), in which the Master Servicer shall deposit
such cash within one Business Day of receipt by the Master Servicer. The Master
Servicer shall retain such cash in the Defeasance Deposit Account pending its
prompt application to purchase Defeasance Collateral. The Master Servicer shall
hold such cash and maintain the Defeasance Deposit Account on behalf of the
Mortgagor, as beneficial owner of the Defeasance Collateral, and the Trustee
and, in the case of the Loan Groups, the Companion Loan Noteholders, to secure
payment on the related Defeasance Loan. The Defeasance Deposit Account shall be
an Eligible Account. To the extent permitted by law or the applicable Defeasance
Loan, prior to the purchase of Defeasance Collateral, funds in the Defeasance
Deposit Account may be invested only in Permitted Investments in accordance with
the provisions of Section 3.06. The Master Servicer shall pay or cause to be
paid to the related Mortgagor(s) interest, if any, earned on the investment of
funds in the Defeasance Deposit Account, if required by law or the terms of the
related Loan(s).
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the
Distribution Account shall be an Eligible Account. The Distribution Account
shall be deemed to consist of seven separate sub-accounts, which shall be
established and maintained on a book-entry basis: the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Class OEA-B Sub-Account, the
Interest Reserve Account and three separate subaccounts with respect to the Loan
REMIC Residual Interests (each, a "Grantor Trust Sub-Account"). The Grantor
Trust Sub-Accounts shall be assets of the Grantor Trust and beneficially owned
by the Holders of the Class R-I Certificates, and shall not be an asset of the
Lower-Tier REMIC or the Upper-Tier REMIC. The Class OEA-B Sub-Account shall be
deemed to be held in trust for the benefit of the Holders of the Class OEA-B
Certificates. The Master Servicer shall deliver to the Trustee each month on or
before the Master Servicer Remittance Date, for deposit in the Lower-Tier
Distribution Account, an aggregate amount of immediately available funds equal
to the Master Servicer Remittance Amount for such Master Servicer Remittance
Date, together with, in the case of the final Distribution Date, any additional
amounts contemplated by the second paragraph of Section 9.01. The Master
Servicer shall deliver to the Trustee each month on or before the Master
Servicer Remittance Date therein, for deposit in the Class OEA-B Sub-Account, an
aggregate amount of immediately available funds equal to the Master Servicer
Class OEA-B Remittance Amount for such Master Servicer Remittance Date, together
with, in the case of the final Distribution Date, any additional amounts with
respect to the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan contemplated by the
second paragraph of Section 9.01.
Notwithstanding anything herein to the contrary, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Class OEA-B
Sub-Account, the Grantor Trust Sub-Accounts and the Interest Reserve Account may
be maintained as part of a single Distribution Account. Amounts actually
deposited into or distributed from the Distribution Account will be deemed to be
deposited or distributed from the Lower-Tier Distribution Account, the
Upper-Tier Distribution Account, the Class OEA-B Sub-Account, the Grantor Trust
Sub-Accounts and the Interest Reserve Account, as applicable.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the
Lower-Tier Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a); and
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.20(a) in connection with Prepayment Interest
Shortfalls.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the Class
OEA-B Sub-Account any amounts required to be deposited by the Master Servicer
pursuant to Section 3.20(a) in connection with Prepayment Interest Shortfalls on
the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account, the Class OEA-B Sub-Account or the Grantor Trust
Sub-Accounts, as applicable, any and all amounts received by the Trustee that
are required by the terms of this Agreement to be deposited therein.
Promptly on each Distribution Date, the Trustee shall be deemed to
withdraw from the Lower-Tier Distribution Account and the Class OEA-B
Sub-Account and deposit in the Upper-Tier Distribution Account an aggregate
amount of immediately available funds equal to the Lower-Tier Distribution
Amount, the Available OEA-B Distribution Amount and the amount of any Net
Prepayment Consideration for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(i) and
4.01(j), respectively.
In the event that the Master Servicer fails, on any Master Servicer
Remittance Date, to remit to the Trustee any amount(s) required to be so
remitted to the Trustee hereunder by such date, the Master Servicer shall pay
the Trustee, for the account of the Trustee, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Master
Servicer Remittance Date, to but not including the date such payment was made.
On the Master Servicer Remittance Date in March of each year
(commencing in March 2005), the Trustee shall transfer from the Interest Reserve
Account to the Lower-Tier Distribution Account all Interest Reserve Amounts then
on deposit in the Interest Reserve Account with respect to the Interest Reserve
Mortgage Loans and any Interest Reserve REO Mortgage Loans.
As and when required pursuant to Section 3.04(d), the Trustee shall
transfer monies from the Excess Liquidation Proceeds Account to the Lower-Tier
Distribution Account.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account"), which may be a sub-account of
the Distribution Account, to be held in trust for the benefit of the
Certificateholders and the Trust as Holder of the Loan REMIC Interests and the
Uncertificated Lower-Tier Interests. Each account that constitutes the Interest
Reserve Account shall be an Eligible Account. On each Distribution Date in
February and, during a year that is not a leap year, in January, prior to any
distributions being made in respect of the Certificates on such Distribution
Date, the Trustee shall withdraw from the Lower-Tier Distribution Account and
deposit in the Interest Reserve Account with respect to each Interest Reserve
Mortgage Loan and Interest Reserve REO Mortgage Loan, an amount equal to the
Interest Reserve Amount, if any, in respect of such Mortgage Loan or REO
Mortgage Loan (in the case of a Loan REMIC Loan, in respect of the related Loan
REMIC Regular Interest), as the case may be, for such Distribution Date.
Notwithstanding that the Interest Reserve Account, the OEA-B
Sub-Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account and the Grantor Trust Sub-Accounts may be sub-accounts of the
Distribution Account for reasons of administrative convenience, the Interest
Reserve Account, the OEA-B Sub-Account, the Lower-Tier Distribution Account, the
Upper-Tier Distribution Account and the Grantor Trust Sub-Accounts shall, for
all purposes of this Agreement (including the obligations and responsibilities
of the Trustee hereunder), be considered to be and shall be required to be
treated as, separate and distinct accounts. The Trustee shall indemnify and hold
harmless the Trust Fund against any losses arising out of the failure by the
Trustee to perform its duties and obligations hereunder as if such accounts were
separate. The provisions of this paragraph shall survive any resignation or
removal of the Trustee and appointment of a successor trustee.
(d) If any Excess Liquidation Proceeds are received on the Mortgage
Pool, the Trustee shall establish and maintain one or more accounts
(collectively, the "Excess Liquidation Proceeds Account") to be held in trust
for the benefit of the Certificateholders. Each account that constitutes the
Excess Liquidation Proceeds Account shall be an Eligible Account. On each Master
Servicer Remittance Date, the Master Servicer shall withdraw from the Pool
Custodial Account and remit to the Trustee for deposit in the Excess Liquidation
Proceeds Account all Excess Liquidation Proceeds received during the Collection
Period ending on the Determination Date immediately prior to such Master
Servicer Remittance Date. Excess Liquidation Proceeds with respect to a Loan
REMIC Loan shall be deemed distributable to the related Loan REMIC Residual
Interest and immediately deposited in the Excess Liquidation Proceeds Account.
(e) Funds in the Pool Custodial Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. Funds
in the Distribution Account (and all subaccounts thereof) and the Excess
Liquidation Proceeds Account shall remain uninvested. The Master Servicer shall
give notice to the Trustee, the Special Servicer and the Rating Agencies of the
location of the Pool Custodial Account as of the Closing Date and of the new
location of the Pool Custodial Account within two Business Days of any change
thereof. As of the Closing Date, the Distribution Account (and all subaccounts
thereof) and, when established, the Excess Liquidation Proceeds Account shall be
located at the Trustee's offices in Chicago, Illinois. The Trustee shall give
notice to the Master Servicer, the Special Servicer and the Rating Agencies of
any change in the location of the Distribution Account (and all subaccounts
thereof), the Interest Reserve Account or the Excess Liquidation Proceeds
Account prior to any change thereof.
Section 3.04A. Loan Group Custodial Account. (a) The Master Servicer
shall establish and maintain, with respect to each Serviced Loan Group, one or
more separate accounts, which may be sub-accounts of a single account (with
respect to each Loan Group, the "Loan Group Custodial Account") in which the
amounts described in clauses (i) through (ix) below shall be deposited and held
in trust for the benefit of the related Loan Group Noteholders, as their
interests may appear; provided that a Loan Group Custodial Account may be a
sub-account of another Custodial Account. Each of the Loan Group Custodial
Accounts shall be an Eligible Account or a subaccount of an Eligible Account.
The Master Servicer shall deposit or cause to be deposited in the applicable
Loan Group Custodial Account, within one Business Day of receipt (in the case of
payments or other collections on such Loan Group) or as otherwise required
hereunder, the following payments and collections received or made by the Master
Servicer or on its behalf with respect to the related Loan Group subsequent to
the Cut-off Date (other than in respect of principal and interest on such Loan
Group due and payable on or before the Cut-off Date, which payments shall be
held pursuant to the terms of the related Co-Lender Agreement, and other than
amounts required to be deposited in the Defeasance Deposit Account):
(i) all payments on account of principal of the applicable Loan
Group, including Principal Prepayments, and regardless of whether those
payments are made by the related Mortgagor or any related guarantor, out
of any related Reserve Funds maintained for such purpose, out of
collections on any related Defeasance Collateral or from any other source;
(ii) all payments on account of interest on the applicable Loan
Group, including Default Interest, and regardless of whether those
payments are made by the related Mortgagor or any related guarantor, out
of any related Reserve Funds maintained for such purpose, out of
collections on any related Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and/or late
payment charges received in respect of the applicable Loan Group;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the applicable Loan Group (other than
Liquidation Proceeds derived from the sale of any Pooled Mortgage Loans to
or through the related Subordinate Companion Loan Noteholder (or, in the
case of the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan, any sale to or
through the Class OEA-B Majority Holder and/or the holder of the 000
Xxxxxx Xxxxxx Subordinate Companion Loan) or the repurchase of a Pooled
Mortgage Loan by a Mortgage Loan Seller, which shall be deposited directly
into the Pool Custodial Account) (including any amounts paid by a
Mortgagor or received as Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds that represent recoveries for an Advance (or interest
thereon) that was previously reimbursed to the party that made such
Advance as either a Nonrecoverable Advance or as a Workout-Delayed
Reimbursement Amount);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the applicable Loan Group
Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
with respect to the applicable Loan Group resulting from a deductible
clause in a blanket hazard policy;
(vii) any amounts required to be transferred from the related Loan
Group REO Account pursuant to Section 3.17(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by the related Mortgagor with respect to the applicable Loan
Group specifically to cover items for which a Servicing Advance has been
made; and
(ix) any P&I Advances required to be made by the Master Servicer
with respect to a Loan Group Trust Mortgage Loan or the related Pari Passu
Companion Loans in accordance with Section 4.03A.
The foregoing requirements for deposit in the applicable Loan Group
Custodial Account shall be exclusive. Notwithstanding the foregoing, actual
payments from the related Mortgagor in respect of all Loan Groups in the nature
of Escrow Payments, Reserve Funds, assumption fees, assumption application fees,
funds representing such Mortgagor's payment of costs and expenses associated
with assumptions and defeasance, modification fees, extension fees, charges for
beneficiary statements or demands, amounts collected for checks returned for
insufficient funds and any similar fees not expressly referred to in the prior
paragraph need not be deposited by the Master Servicer in the applicable Loan
Group Custodial Account. If the Master Servicer shall deposit into a Loan Group
Custodial Account any amount not required to be deposited therein, it may at any
time withdraw such amount from such Loan Group Custodial Account, any provision
herein to the contrary notwithstanding. The Master Servicer shall promptly
deliver to the Special Servicer, as additional special servicing compensation in
accordance with Section 3.11(c), all assumption fees and assumption application
fees (or the applicable portions thereof) and other transaction fees received by
the Master Servicer with respect to all Loan Groups, to which the Special
Servicer is entitled pursuant to such section, upon receipt of a written
statement of a Servicing Officer of the Special Servicer describing the item and
amount (unless pursuant to this Agreement it is otherwise clear that the Special
Servicer is entitled to such amounts, in which case a written statement is not
required). Each Loan Group Custodial Account shall be maintained as a segregated
account, separate and apart from trust funds created for mortgage-backed
securities of other series and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to a Loan Group, the Special Servicer shall
promptly, but in no event later than two Business Days after receipt, remit such
amounts to the Master Servicer for deposit into the related Loan Group Custodial
Account in accordance with the second preceding paragraph, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement or other
appropriate reason. With respect to any such amounts paid by check to the order
of the Special Servicer, the Special Servicer shall endorse such check to the
order of the Master Servicer, unless the Special Servicer determines, consistent
with the Servicing Standard, that a particular item cannot be so endorsed and
delivered because of a restrictive endorsement or other appropriate reason. Any
such amounts received by the Special Servicer with respect to an REO Property
that relates to any Loan Group shall initially be deposited by the Special
Servicer into the related REO Account and thereafter remitted to the Master
Servicer for deposit into the related Loan Group Custodial Account, all in
accordance with Section 3.17(c).
(f) If and when the related Mortgagor elects to defease a Serviced
Loan Group, the provisions of the last paragraph of Section 3.04(a) relating to
the Defeasance Deposit Account shall apply.
(g) The Master Servicer shall give notice to the Trustee, the
related Companion Loan Noteholders and the Special Servicer of the location of
the related Loan Group Custodial Account when first established and of the new
location of such Custodial Account prior to any change thereof.
(h) With respect to the Companion Loans for each of the Tier 3 Loan
Groups, as to which a separate primary servicer is collecting the Monthly
Payment on each such Companion Loan, all Monthly Payments in respect of the
related Companion Loans will be made directly to such primary servicer until (i)
either the Companion Loan or the related Loan Group Trust Mortgage Loan is
accelerated, (ii) the occurrence and continuation of a monetary event of default
under the Loan Group or (iii) the occurrence and continuation of an event of
default under the related Loan Group caused by certain insolvency actions as set
forth in the related intercreditor agreement.
Section 3.05 Permitted Withdrawals From the Pool Custodial Account,
the Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Pool Custodial Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account
the amounts required to be so deposited pursuant to the first paragraph of
Section 3.04(b), and any amounts that may be applied to make P&I Advances
pursuant to Section 4.03(a);
(ii) to reimburse the Fiscal Agent, the Trustee and itself, in that
order, for xxxxxxxxxxxx X&X Advances made thereby with respect to the
Mortgage Pool (excluding any P&I Advances made with respect to any
Mortgage Loan that is part of a Serviced Loan Group and any related REO
Loans), the Fiscal Agent's, the Trustee's and Master Servicer's, as the
case may be, respective rights to reimbursement pursuant to this clause
(ii) with respect to any such P&I Advance being limited to amounts on
deposit in the Pool Custodial Account that represent Late Collections of
interest and principal (net of the related Master Servicing Fees and any
related Workout Fees or Liquidation Fees) received in respect of the
particular Mortgage Loan or REO Mortgage Loan as to which such P&I Advance
was made; provided, however, that if any P&I Advance that was made with
respect to the Mortgage Pool (including any Mortgage Loans that are part
of a Serviced Loan Group and any related REO Loans) becomes a
Workout-Delayed Reimbursement Amount, then such P&I Advance shall
thereafter be reimbursed from the portion of general collections and
recoveries on or in respect of all of the Mortgage Loans and REO
Properties on deposit in the Pool Custodial Account from time to time that
represent collections or recoveries of principal to the extent provided in
clause (vii) below;
(iii) to pay (A) to itself earned and unpaid Master Servicing Fees
with respect to the Mortgage Pool (exclusive of the Serviced Loan Group
Trust Mortgage Loans and any related REO Mortgage Loans), the Master
Servicer's right to payment pursuant to this clause (iii)(A) with respect
to any such Master Servicing Fees being limited to amounts on deposit in
the Pool Custodial Account that are allocable as a recovery of interest on
or in respect of the Mortgage Loan or REO Mortgage Loan as to which such
Master Servicing Fees were earned, and (B) to itself, out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any Master Servicing Fee earned in respect of any Mortgage Loan or REO
Mortgage Loan (including any Loan Group Trust Mortgage Loans and/or any
related REO Mortgage Loans, to the extent not paid from the related Loan
Group Custodial Account pursuant to Section 3.05A) that remains unpaid
after the application of clause (A) above following a Final Recovery
Determination made with respect to such Mortgage Loan or the related REO
Property and the deposit into the Pool Custodial Account of all amounts
received in connection with such Final Recovery Determination;
(iv) to pay to the Special Servicer, out of general collections on
the Mortgage Pool on deposit in the Pool Custodial Account, earned and
unpaid Special Servicing Fees in respect of each Specially Serviced
Mortgage Loan and REO Mortgage Loan (including the Loan Group Trust
Mortgage Loans and/or any related REO Mortgage Loans, to the extent not
paid from the related Loan Group Custodial Account pursuant to Section
3.05A);
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) any earned and unpaid Workout Fees and Liquidation Fees
in respect of each Specially Serviced Mortgage Loan, Corrected Loan and/or
REO Mortgage Loan (including the Loan Group Trust Mortgage Loans and/or
any related REO Mortgage Loans, to the extent not paid from the related
Loan Group Custodial Account pursuant to Section 3.05A), as applicable, in
the amounts and from the sources specified in Section 3.11(b);
(vi) to reimburse the Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, for any unreimbursed Servicing Advances
made thereby with respect to any Mortgage Loan or REO Property (other than
the Loan Group Trust Mortgage Loans and/or any related REO Properties),
the Fiscal Agent's, the Trustee's, the Master Servicer's and the Special
Servicer's respective rights to reimbursement pursuant to this clause (vi)
with respect to any Servicing Advance being limited to amounts on deposit
in the Pool Custodial Account that represent payments made by the related
Mortgagor to cover the item for which such Servicing Advance was made, and
to amounts on deposit in the Pool Custodial Account that represent
Liquidation Proceeds (net of Liquidation Fees payable therefrom),
Condemnation Proceeds, Insurance Proceeds and, if applicable, REO Revenues
received in respect of the particular Mortgage Loan or REO Property as to
which such Servicing Advance was made; provided, however, that if such
Servicing Advance becomes a Workout-Delayed Reimbursement Amount, then
such Servicing Advance shall thereafter be reimbursed from the portion of
general collections and recoveries on or in respect of all of the Mortgage
Loans and REO Properties on deposit in the Pool Custodial Account from
time to time that represent collections or recoveries of principal to the
extent provided in clause (vii) below;
(vii) to reimburse the Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, out of general collections on the
Mortgage Pool on deposit in the Pool Custodial Account, for (1)(a) any
unreimbursed Advances that have been or are determined to be
Nonrecoverable Advances and (b) with respect to the 000 Xxxx Xxxxxx Loan
Group, Xxxxx Fargo Tower Loan Group and the 1801 K Street Loan Group, to
reimburse the GCCFC C2 Fiscal Agent, the GCCFC C2 Trustee and the GCCFC C2
Master Servicer, in that order, for any unreimbursed advances made by any
such party pursuant to the GCCFC C2 PSA in respect of such Loan Group
(other than principal and interest advances made on the 000 Xxxx Xxxxxx
Companion Loans, Xxxxx Fargo Tower Companion Loans and 1801 K Street
Companion Loan) that have been or are determined to be nonrecoverable
advances pursuant to the terms of the GCCFC C2 PSA (up to, with respect to
Servicing Advances, the corresponding Loan Group Trust Mortgage Loan's
proportionate share of such advance, or if such amount, together with
amounts available in the trust fund created under the GCCFC C2 PSA is
insufficient to reimburse the party that made such advance, then up to the
full amount of such advance) and (2) for any Workout-Delayed Reimbursement
Amounts, such reimbursement to be made out of the principal portion of the
general collections on the Mortgage Loans and REO Properties net of such
amounts being reimbursed pursuant to clause (1) above; provided that the
amounts referred to in clause (1) above may be withdrawn over time in
accordance with Section 3.05(e);
(viii) to pay the Fiscal Agent, the Trustee, itself and the Special
Servicer, in that order, any interest accrued and payable in accordance
with Section 3.12(b), 4.03(d) or 4.03A(d), as applicable, on any Advance
made thereby with respect to the Mortgage Pool (exclusive of the Serviced
Loan Group Trust Mortgage Loans and any related REO Mortgage Loans), the
Fiscal Agent's, the Trustee's, the Master Servicer's and the Special
Servicer's respective rights to payment pursuant to this clause (viii)
with respect to interest on any such Advance being limited to amounts on
deposit in the Pool Custodial Account that represent Default Charges
collected on or in respect of the related Mortgage Loan during the
Collection Period in which such Advance is reimbursed, as and to the
extent contemplated by Sections 3.27(a) and (b);
(ix) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, the Fiscal Agent, the Trustee,
itself and the Special Servicer, in that order, any interest accrued and
payable in accordance with Section 3.12(b), 4.03(d) or 4.03A(d), as
applicable, (i) on any Advance (including any Advance that constitutes a
Workout-Delayed Reimbursement Amount) made thereby with respect to the
Mortgage Pool or (ii) any advance made by the GCCFC C2 Master Servicer,
the GCCFC C2 Special Servicer, the GCCFC C2 Trustee or the GCCFC C2 Fiscal
Agent with respect to the 000 Xxxx Xxxxxx Loan Group, Xxxxx Fargo Tower
Loan Group and 1801 K Street Loan Group other than any principal and
interest advance made on the related Companion Loans, but only to the
extent that such Advance has been reimbursed and the interest thereon is
not otherwise payable as contemplated by the immediately preceding clause
(viii) or Section 3.05A, as applicable;
(x) to pay, out of amounts on deposit in the Pool Custodial Account
that represent Default Charges collected on or in respect of the related
Mortgage Loan and not otherwise applied as contemplated by clause (viii)
above, any unpaid expense (other than interest accrued on Advances, which
is payable pursuant to clause (viii) above, and other than Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect
to any Mortgage Loan or REO Mortgage Loan (including the 000 Xxxxxx Xxxxxx
Non-Pooled Trust Loan, to the extent that no funds are available therefor
in the related Loan Group Custodial Account) that, if paid from a source
other than Default Charges, would constitute an Additional Trust Fund
Expense, as and to the extent contemplated by Sections 3.27(a) and (b);
(xi) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, (A) costs and expenses incurred by
the Trust Fund pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance), (B) the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Sections 3.12(d),
3.19(g), or 4.03(c), and (C) the fees of any Independent Contractor
retained with respect to any related REO Property pursuant to Section
3.18(d) (to the extent that it has not paid itself such fees prior to
remitting collections on such REO Property to the Special Servicer);
provided that, in the case of a Loan Group Mortgaged Property, any payment
pursuant to this clause (xi) is to be made only to the extent that it
would not ultimately be payable out of collections on or in respect of the
related Loan Group;
(xii) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (A) interest and investment income earned
in respect of amounts held in the Pool Custodial Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings
with respect to the Pool Custodial Account for any Collection Period, (B)
Prepayment Interest Excesses collected on the Mortgage Pool (exclusive of
the Serviced Loan Group Trust Mortgage Loans) and (C) Net Default Charges
(after application pursuant to Sections 3.27(a) and (b)) actually
collected that accrued in respect of Mortgage Loans (other than the
Serviced Loan Group Trust Mortgage Loans) that are not Specially Serviced
Mortgage Loans, and to pay the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(c), Net Default
Charges (after application pursuant to Sections 3.27(a) and (b)) actually
collected that accrued in respect of Specially Serviced Mortgage Loans and
REO Mortgage Loans (other than the Serviced Loan Group Trust Mortgage
Loans and/or any related REO Mortgage Loans);
(xiii) to pay itself, the Special Servicer, the Depositor, or any of
their respective members, managers, directors, officers, employees and
agents, as the case may be, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, any amounts payable to any
such Person pursuant to Section 6.03; provided that such payment does not
relate solely to the Companion Loans;
(xiv) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) the cost of the Opinion of
Counsel contemplated by Section 11.02(a), (B) the cost of an Opinion of
Counsel contemplated by Section 11.01(a) or 11.01(c) in connection with
any amendment to this Agreement requested by the Master Servicer or the
Special Servicer that protects or is in furtherance of the rights and
interests of Certificateholders, and (C) the cost of recording this
Agreement in accordance with Section 11.02(a);
(xv) to pay itself, the Special Servicer, any Controlling Class
Certificateholder or any other Person, as the case may be, with respect to
each Mortgage Loan, if any, previously purchased by such Person pursuant
to this Agreement, all amounts received thereon subsequent to the date of
purchase that have been deposited in the Pool Custodial Account;
(xvi) to pay, in accordance with Section 3.12(e), out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any servicing expenses, that would, if advanced, constitute Nonrecoverable
Servicing Advances (including servicing expenses that relate to, and are
allocable to, the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan or any related
REO Loan, but excluding servicing expenses that relate solely to the
Companion Loans or any related REO Loans), to the extent no funds are
available therefor in the related Loan Group Custodial Account;
(xvii) on each Master Servicer Remittance Date, to transfer Excess
Liquidation Proceeds in respect of the Mortgage Pool to the Trustee, for
deposit in the Excess Liquidation Proceeds Account, in accordance with
Section 3.04(d);
(xviii) to pay any other amounts due the Lead Master Servicer or
Lead Special Servicer, as applicable under a Lead PSA to the extent
required under the related Co-Lender Agreement; and
(xix) to clear and terminate the Pool Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Pool Custodial Account pursuant to clauses (ii) through
(xviii) above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer), the Trustee or the
Fiscal Agent from the Pool Custodial Account, amounts permitted to be paid to
the Special Servicer (or to any such third party contractor), the Trustee or the
Fiscal Agent therefrom promptly upon receipt of a written statement of a
Servicing Officer of the Special Servicer or of a Responsible Officer of the
Trustee or the Fiscal Agent describing the item and amount to which the Special
Servicer (or such third party contractor), the Trustee or the Fiscal Agent, as
applicable, is entitled (unless such payment to the Special Servicer, the
Trustee (for example, the Trustee Fee) or the Fiscal Agent, as the case may be,
is clearly required pursuant to this Agreement, in which case a written
statement is not required). The Master Servicer may rely conclusively on any
such written statement and shall have no duty to re-calculate the amounts stated
therein. With respect to any reimbursement to be made hereunder to the GCCFC C2
Master Servicer, the GCCFC C2 Special Servicer, the GCCFC C2 Trustee or the
GCCFC C2 Fiscal Agent in respect of any advance made by such parties
subsequently determined to be nonrecoverable pursuant to the terms of the GCCFC
C2 PSA, the Master Servicer may conclusively rely on a written statement from
such party delivered to the Master Servicer that such advance made is
nonrecoverable under the terms of the GCCFC C2 PSA.
The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Mortgage Loan and REO Property, on a loan-by-loan basis,
for the purpose of justifying any request for withdrawal from the Pool Custodial
Account. With respect to each Mortgage Loan for which it makes an Advance, each
of the Trustee and Fiscal Agent shall keep and maintain separate accounting, on
a loan-by-loan basis, for the purpose of justifying any request for withdrawal
from the Pool Custodial Account for reimbursements of Advances or interest
thereon.
(b) Promptly on each Distribution Date, the Trustee shall be deemed
to withdraw from the Lower-Tier Distribution Account and deposit in the
Upper-Tier Distribution Account an aggregate amount of immediately available
funds equal to the Lower-Tier Distribution Amount and the amount of any Net
Prepayment Consideration for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(i) and
4.01(j), respectively. The Trustee may, from time to time, make withdrawals from
the Distribution Account (which in the case of clauses (ii) through (vii) shall
be deemed to have been withdrawn from the Lower-Tier Distribution Account) for
any of the following purposes (in no particular order of priority) provided,
that no withdrawals under clauses (ii) through (v) below shall be deemed to be
made from the Class OEA-B Sub-Account unless such withdrawal is solely related
to the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan, and any withdrawals that relate
to the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan pursuant to such clauses shall be
made first from the Class OEA-B Sub-Account and then, to the extent not
available therein, the remainder of the Lower-Tier Distribution Account:
(i) to make distributions to Certificateholders from the applicable
subaccount on each Distribution Date pursuant to Section 4.01 or 9.01, as
applicable;
(ii) to pay (A) the Trustee, the Fiscal Agent or any of their
respective directors, officers, employees and agents, as the case may be,
out of general collections on the Mortgage Loans on deposit in the
Distribution Account, any amounts payable or reimbursable to any such
Person pursuant to Section 7.01(b) and/or Section 8.05, as applicable, and
(B) as and when contemplated by Section 8.08, the cost of the Trustee's
transferring Mortgage Files and other documents to a successor after being
terminated by Certificateholders pursuant to Section 8.07(c) without
cause;
(iii) to pay, out of general collections on the Mortgage Loans on
deposit in the Distribution Account, for the cost of the Opinions of
Counsel sought by the Trustee or the Tax Administrator (A) as provided in
clause (iv) of the definition of "Disqualified Organization," (B) as
contemplated by Sections 10.01(i) and 10.02(e), or (C) as contemplated by
Section 11.01(a) or 11.01(c) in connection with any amendment to this
Agreement requested by the Trustee which amendment is in furtherance of
the rights and interests of Certificateholders;
(iv) to pay, out of general collections on the Mortgage Loans on
deposit in the Distribution Account, any and all federal, state and local
taxes imposed on either REMIC Pool or any Loan REMIC or on the assets or
transactions of either such REMIC Pool or such Loan REMIC, together with
all incidental costs and expenses, to the extent none of the Trustee, the
Tax Administrator, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(j);
(v) to pay the Tax Administrator, out of general collections on the
Mortgage Loans on deposit in the Distribution Account, any amounts
reimbursable to it pursuant to Section 10.01(f);
(vi) to pay the Master Servicer any amounts deposited by the Master
Servicer in the Distribution Account in error;
(vii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage
Loans from the Distribution Account to the Interest Reserve Account as and
when required by Section 3.04(c); and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
On or prior to a Distribution Date, the Trustee shall be entitled to
withdraw amounts that are payable or reimbursable as set forth in clauses (ii)
through (vii) above from the Distribution Account (which will be deemed to be
withdrawn from the Lower-Tier Distribution Account) prior to making
distributions to Certificateholders on such Distribution Date.
(c) On each Master Servicer Remittance Date in March (commencing in
March 2005), the Trustee shall withdraw from the Interest Reserve Account and
deposit in the Lower-Tier Distribution Account all Interest Reserve Amounts that
have been deposited in the Interest Reserve Account in respect of the Interest
Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans during
February and/or January of the same year in accordance with Section 3.04(c).
(d) On each Master Servicer Remittance Date, the Trustee shall
withdraw from the Excess Liquidation Proceeds Account and deposit in the
Lower-Tier Distribution Account, for distribution on the following Distribution
Date, an amount equal to the lesser of (i) the entire amount, if any, then on
deposit in the Excess Liquidation Proceeds Account and (ii) the excess, if any,
of the aggregate amount distributable with respect to the Regular Interest
Certificates on such Distribution Date pursuant to Sections 4.01(a) and 4.01(b),
over the Available Distribution Amount for such Distribution Date (calculated
without regard to such transfer from the Excess Liquidation Proceeds Account to
the Distribution Account); provided that on the Master Servicer Remittance Date
immediately prior to the Final Distribution Date, the Trustee shall withdraw
from the Excess Liquidation Proceeds Account and deposit in the Lower-Tier
Distribution Account, for distribution on such Distribution Date, any and all
amounts then on deposit in the Excess Liquidation Proceeds Account.
(e) Notwithstanding anything to the contrary contained herein, upon
a determination that a previously made Advance is a Nonrecoverable Advance,
instead of obtaining reimbursement out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account immediately as contemplated by
Section 3.05(a)(vii), the Master Servicer, the Special Servicer, the Trustee or
the Fiscal Agent, as applicable, may, in its sole discretion, elect to obtain
reimbursement for such Nonrecoverable Advance over time and the unreimbursed
portion of such Advance will accrue interest at the Prime Rate. At any time
after such a determination to obtain reimbursement over time (not to exceed 6
months or such longer period as may be requested by the advancing party and
approved by the Controlling Class Directing Holder), the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, may, in its
sole discretion, decide to obtain reimbursement immediately. The fact that a
decision to recover such Nonrecoverable Advances over time, or not to do so,
benefits some Classes of Certificateholders to the detriment of other Classes
shall not constitute a violation of the Servicing Standard by the Master
Servicer or the Special Servicer or be deemed a breach of any fiduciary duty of
the Trustee to Certificateholders by the Trustee or the Fiscal Agent, or a
breach of a contractual obligation by the Master Servicer, the Special Servicer,
the Trustee or the Fiscal Agent.
To the extent a Nonrecoverable Advance with respect to a Mortgage
Loan is required to be reimbursed from general collections on the Mortgage Loans
pursuant to clauses (vi) or (vii) of Section 3.05(a), such reimbursement shall
be allocated first, to the principal portion of the general collections
available on the Mortgage Loans. To the extent a Workout-Delayed Reimbursement
Amount is reimbursed pursuant to clause (vii) of Section 3.05(a), such
reimbursement shall be limited to an amount equal to, and be allocable solely
to, principal collections available on the Mortgage Loans, net of amounts paid
pursuant to the previous sentence.
The Master Servicer shall give each Rating Agency at least 15 days
notice prior to any reimbursement to it of Nonrecoverable Advances from amounts
in the Pool Custodial Account allocable to interest on the Trust Mortgage Loans
unless (1) the Master Servicer determines in its sole discretion that waiting 15
days after such a notice could jeopardize the Master Servicer's ability to
recover Nonrecoverable Advances, (2) changed circumstances or new or different
information becomes known to the Master Servicer that could affect or cause a
determination of whether any Advance is a Nonrecoverable Advance, whether to
defer reimbursement of a Nonrecoverable Advance or the determination in clause
(1) above, or (3) the Master Servicer has not timely received from the Trustee
information requested by the Master Servicer to consider in determining whether
to defer reimbursement of a Nonrecoverable Advance; provided that, if clause
(1), (2) or (3) apply, the Master Servicer shall give each Rating Agency notice
of an anticipated reimbursement to it of Nonrecoverable Advances from amounts in
the Pool Custodial Account allocable to interest on the Trust Mortgage Loans as
soon as reasonably practicable in such circumstances. The Master Servicer shall
have no liability for any loss, liability or expense resulting from any notice
provided to each Rating Agency contemplated by the immediately preceding
sentence.
(f) In the event that servicing advances on the 000 Xxxx Xxxxxx Loan
Group, Xxxxx Fargo Tower Loan Group and 1801 K Street Loan Group or P&I advances
on such Loans have been made with respect to the 000 Xxxx Xxxxxx Loan Group,
Xxxxx Fargo Tower Loan Group or 1801 K Street Loan Group under the GCCFC C2 PSA
by the GCCFC C2 Master Servicer, GCCFC C2 Trustee or the GCCFC C2 Fiscal Agent,
and in accordance with the GCCFC C2 PSA, a subsequent determination has been
made that such advance constitutes a nonrecoverable advance, the party that made
such advance shall be entitled to a reimbursement of such advance with interest
thereon as set forth in the GCCFC C2 PSA, from general collections on all
Mortgage Loans in the Pool Custodial Account (up to, with respect to a servicing
advance, the related Loan Group Trust Mortgage Loan's proportionate share of
such servicing advance, or if such amount together with amounts available from
general collections in the custodial account created under the GCCFC C2 PSA is
insufficient to reimburse the party that made such servicing advance, then up to
the full amount of such servicing advance and interest thereon).
Section 3.05A. Permitted Withdrawals From the Loan Group Custodial
Accounts.
The Master Servicer may, from time to time, make withdrawals from
the applicable Loan Group Custodial Account, for any of the following purposes
(the order set forth below not constituting an order of priority for such
withdrawals), such amounts being allocated among the Loans in the Loan Group as
provided in the related Co-Lender Agreement:
(i) to make remittances each month on or before the Master Servicer
Remittance Date therein, in an aggregate amount of immediately available
funds equal to the applicable Loan Group Remittance Amount, to the Trust
(as holder of the Loan Group Trust Mortgage Loans or any related REO
Mortgage Loans) and the related Companion Loan Noteholder (which
remittance shall be made no later than 2:00 p.m. (New York City time) on
the Loan Group Remittance Date), in accordance with the applicable
provisions of the related Co-Lender Agreement, as applicable, such
remittances to the Trust to be made into the Pool Custodial Account, or in
the case of the portion of the Loan Group Remittance Amount for the 000
Xxxxxx Xxxxxx Loan Group that constitutes the Master Servicer Class OEA-B
Remittance Amount, to the Trustee for deposit into the Class OEA-B
Sub-Account;
(ii) to reimburse, first, the Fiscal Agent and any Other Backup
Advancer, second, the Trustee, and last, itself, in that order, for
xxxxxxxxxxxx X&X Advances made by such party (with its own funds) with
respect to the related Loan Group Trust Mortgage Loan or in the case of
the Master Servicer and any Other Backup Advancer, the Serviced Pari Passu
Companion Loans, any such party's rights to reimbursement pursuant to this
clause (ii) with respect to any such P&I Advance being limited to amounts
on deposit in the applicable Loan Group Custodial Account that represent
late collections of interest and principal (net of the related Master
Servicing Fees and any related Workout Fees or Liquidation Fees) received
in respect of the particular Loan Group Trust Mortgage Loan or, in the
case of the Master Servicer and any Other Backup Advancer, the Serviced
Pari Passu Companion Loans (as allocable thereto pursuant to the related
Loan documents and the related Co-Lender Agreement);
(iii) to pay to itself earned and unpaid Master Servicing Fees with
respect to the related Loan Group (or any successor REO Loans), the Master
Servicer's respective rights to payment pursuant to this clause (iii) with
respect to any Loan (or any successor REO Loan) in such Loan Group being
limited to amounts on deposit in the related Loan Group Custodial Account
that were received on or in respect of such Loan (or successor REO Loan)
and are allocable as a recovery of interest thereon;
(iv) to reimburse, first, the Fiscal Agent and any Other Backup
Advancer, second, the Trustee, and last, itself, in that order, for any
xxxxxxxxxxxx X&X Advances made by such party (with its own funds) with
respect to the related Loan Group Trust Mortgage Loan or, in the case of
the Master Servicer, the Serviced Pari Passu Companion Loans that such
party has determined are Nonrecoverable Advances, such party's rights to
reimbursement pursuant to this clause (iv) with respect to any such P&I
Advance being limited to amounts on deposit in the applicable Loan Group
Custodial Account that were received in respect of the particular Loan
Group Trust Mortgage Loan or the applicable Serviced Pari Passu Companion
Loan (as allocable thereto pursuant to the related Loan documents and the
related Co-Lender Agreement), in the Loan Group as to which such P&I
Advance was made;
(v) to pay to the Special Servicer earned and unpaid Special
Servicing Fees in respect of the related Loan Group while any Loan in such
Loan Group constitutes a Specially Serviced Loan and after the Loan Group
Mortgaged Properties become REO Properties;
(vi) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees and Liquidation Fees in
respect of the related Loan Group, in the amounts and from the sources
specified in Section 3.11(b);
(vii) to reimburse first, the Fiscal Agent, second, the Trustee,
third, itself and last, the Special Servicer, in that order, for any
unreimbursed Servicing Advances made thereby with respect to the related
Loan Group or any related REO Properties, any such party's respective
rights to reimbursement pursuant to this clause (vii) with respect to any
Servicing Advance being limited to amounts on deposit in the applicable
Loan Group Custodial Account that represent payments made by the related
Mortgagor to cover the item for which such Servicing Advance was made, and
to amounts on deposit in the related Loan Group Custodial Account that
represent Liquidation Proceeds (net of Liquidation Fees payable
therefrom), Condemnation Proceeds, Insurance Proceeds and, if applicable,
REO Revenues received in respect of the related Loan Group or related Loan
Group REO Properties as to which such Servicing Advance was made;
(viii) to reimburse, first, the Fiscal Agent, second, the Trustee,
third, itself and last the Special Servicer, in that order, out of general
collections in the Loan Group Custodial Account, for any unreimbursed
Servicing Advances made thereby with respect to the related Loan Group or
any related REO Properties that such party has determined are
Nonrecoverable Advances, such amounts being allocated among the Loans in
the Loan Group as provided in the related Co-Lender Agreement; provided
that such amounts may be withdrawn over time in accordance with Section
3.05A(b);
(ix) to pay first, the Fiscal Agent and any Other Backup Advancer,
second, the Trustee, third, itself and last, the Special Servicer, in that
order, any interest accrued on any Advance made thereby with respect to
the Loans in the related Loan Group or with respect to the related Loan
Group Mortgaged Properties, any such party's respective right to payment
pursuant to this clause (ix) with respect to interest on any Advance being
permitted to be satisfied (A) first, out of any amounts on deposit in the
applicable Loan Group Custodial Account that represent Default Charges
collected during the same Collection Period in which such Advance is
reimbursed, as and to the extent contemplated by Section 3.27(c), and (B)
second, to the extent that the Default Charges described in the
immediately preceding clause (A) are insufficient, but only if such
Advance is being reimbursed at the same time or if such Advance has been
previously reimbursed, out of any amounts on deposit in the applicable
Loan Group Custodial Account that represent any other collections on or in
respect of the related Loan Group;
(x) to pay for (A) costs and expenses incurred with respect to the
Loan Group Mortgaged Properties pursuant to Section 3.09(c) (other than
the costs of environmental testing, which are to be covered by, and
reimbursable as, a Servicing Advance), (B) the costs and expenses of
obtaining appraisals of the Loan Group Mortgaged Properties pursuant to
Section 3.12(d) or 4.03A(c), as applicable, and (C) the fees of any
Independent Contractor retained with respect to any related Loan Group REO
Property pursuant to Section 3.18(d) (to the extent that it has not paid
itself such fees prior to remitting collections on such REO Property to
the Special Servicer);
(xi) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (A) interest and investment income earned
in respect of amounts held in the applicable Loan Group Custodial Account
as provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to the applicable Loan Group Custodial
Account for any Collection Period and (B) Net Default Charges (after
application pursuant to Section 3.27(c)) actually collected that accrued
in respect of the Companion Loans during a period that they were not
Specially Serviced Loans and the Loan Group Mortgaged Properties were not
REO Properties, and to pay the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(c), Net Default
Charges (after application pursuant to Section 3.27(c)) actually collected
that accrued in respect of the Companion Loans during a period that they
were Specially Serviced Loans or the Loan Group Mortgaged Properties were
REO Properties;
(xii) to pay itself, the Special Servicer, or any of their
respective members, managers, directors, officers, employees and agents,
as the case may be, any amounts payable to any such Person pursuant to
Section 6.03, to the extent such amounts relate to the related Loan Group;
(xiii) to pay for the cost of recording the Co-Lender Agreement and
any required opinion of counsel related thereto and, to the extent
applicable pursuant to Section 11.02(a), the allocable portion of the cost
of the Opinion of Counsel contemplated by Section 11.02(a), and solely
with respect to the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan, to pay its
allocable share (based on the ratio of the Stated Principal Balance of
such Mortgage Loan to the Stated Principal Balance of all the Mortgage
Loans) of any Opinion of Counsel contemplated by Section 11.01(a) or
11.01(c) in connection with any amendment to this Agreement requested by
the Master Servicer or the Special Servicer that protects or is in
furtherance of the rights and interests of the Certificateholders,
provided that such amendment protects or is in furtherance of the rights
and interests of the Class OEA-B Certificateholders generally to the same
extent as for other Certificateholders;
(xiv) with respect to the 000 Xxxxxx Xxxxxx Pooled Trust Loan, if
previously purchased by any Person from the Trust Fund pursuant to this
Agreement, to pay such Person all amounts received thereon subsequent to
the date of purchase that have been deposited in the related Loan Group
Custodial Account;
(xv) to pay, in accordance with Section 3.12(e), out of collections
on the related Loan Group on deposit in the related Loan Group Custodial
Account, any servicing expenses with respect to the related Loans, that
would, if advanced, constitute Nonrecoverable Servicing Advances (provided
that servicing expenses that relate solely to a Serviced Companion Loan or
any related REO Loans will be paid solely from funds allocable thereto);
(xvi) to transfer to the Pool Custodial Account all amounts
representing Default Charges actually collected that accrued in respect of
the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans in
respect of the Loan Group Trust Mortgage Loans, to the extent such Default
Charges were not applied to offset interest on Advances pursuant to clause
(viii)(B) above (to be applied in accordance with Sections 3.27(a) and
(b)); and
(xvii) to clear and terminate the applicable Loan Group Custodial
Account at the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records in connection with each Loan Group Custodial Account, including but not
limited to, any withdrawal from each Loan Group Custodial Account, pursuant to
clauses (ii) through (xvi) above.
The Master Servicer shall pay to each of the Special Servicer (or to
third party contractors at the direction of the Special Servicer), the Trustee
and the Fiscal Agent, as applicable, from the applicable Loan Group Custodial
Account, amounts permitted to be paid thereto from such account promptly upon
receipt of a written statement of a Servicing Officer of the Special Servicer or
a Responsible Officer of the Trustee or the Fiscal Agent, as the case may be,
describing the item and amount to which the Special Servicer (or such third
party contractor), the Trustee or the Fiscal Agent, as the case may be, is
entitled (unless such payment to the Special Servicer, the Trustee or the Fiscal
Agent, as the case may be, is clearly required pursuant to this Agreement, in
which case a written statement is not required). The Master Servicer may rely
conclusively on any such written statement and shall have no duty to
re-calculate the amounts stated therein. The parties seeking payment pursuant to
this Section shall each keep and maintain separate accounting for the purpose of
justifying any request for withdrawal from each Loan Group Custodial Account, on
a loan-by-loan basis.
In the event that the Master Servicer fails, on any Loan Group
Remittance Date, to remit to the Companion Loan Noteholders any amount(s)
required to be so remitted to such Companion Loan Noteholders hereunder by such
date, the Master Servicer shall pay such Companion Loan Noteholders, for the
account of such Companion Loan Noteholders, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Master
Servicer Remittance Date, to but not including the date of remittance.
With respect to any Serviced Pari Passu Companion Loan that is an
asset of a securitization, in addition to the remittances set forth above under
clause (i), the Master Servicer shall remit any late payment received after any
Loan Group Remittance Date to the related Subsequent Master Servicer (unless the
Master Servicer made a P&I Advance for such late payment, in which case such
payment may be retained by the Master Servicer as reimbursement for such P&I
Advance in accordance with the provisions of Section 3.05(A)) within one
Business Day of receipt thereof.
Section 3.06 Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Defeasance Deposit Account, the Custodial Accounts and the
REO Accounts.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or a Custodial Account (each, for purposes of this Section 3.06,
an "Investment Account"), and the Special Servicer may direct in writing any
depository institution maintaining an REO Account (also, for purposes of this
Section 3.06, an "Investment Account"), to invest, or if it is such depository
institution, may itself invest, the funds held therein in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, no later than the Business Day immediately preceding the next
succeeding date on which such funds are required to be withdrawn from such
account pursuant to this Agreement; provided that in the case of any Servicing
Account, any Reserve Account or the Defeasance Deposit Account, such investment
direction shall be subject to the related Loan documents and applicable law.
Funds in the Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account will remain uninvested. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such) and, in the case of a Permitted Investment in any
Investment Account solely related to a Loan Group, the related Companion Loan
Noteholders. The Master Servicer (with respect to Permitted Investments of
amounts in the Servicing Accounts, the Reserve Accounts, the Defeasance Deposit
Account and the Custodial Accounts) and the Special Servicer (with respect to
Permitted Investments of amounts in the REO Accounts), on behalf of the Trustee
and, in the case of any Investment Account solely related to a Loan Group, the
related Companion Loan Noteholders, shall (and the Trustee hereby designates the
Master Servicer and the Special Servicer, as applicable, as the Person that
shall) (i) be the "entitlement holder" of any Permitted Investment that is a
"security entitlement" and (ii) maintain "control" of any Permitted Investment
that is a "certificated security," "uncertificated security" or "deposit
account." For purposes of this Section 3.06(a), (i) the terms "entitlement
holder," "security entitlement," "control" (except with respect to deposit
accounts), "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
the terms "control" (with respect to deposit accounts) and "deposit account"
shall have the meanings given such terms in Revised Article 9 (1998 Revision) of
the UCC, and (ii) "control" of any Permitted Investment in any Investment
Account by the Master Servicer or the Special Servicer shall constitute
"control" by a Person designated by, and acting on behalf of, the Trustee and,
in the case of any Investment Account solely related to a Loan Group, the
related Companion Loan Noteholders, for purposes of Revised Article 8 (1994
Revision) of the UCC or Revised Article 9 (1998 Revision) of the UCC, as
applicable. If amounts on deposit in an Investment Account are at any time
invested in a Permitted Investment payable on demand, the Master Servicer (in
the case of the Custodial Accounts, the Servicing Accounts, the Reserve Accounts
and the Defeasance Deposit Account) or the Special Servicer (in the case of the
REO Accounts) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to at least
the lesser of (1) all amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the case
may be, that such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the Investment
Account.
(b) Whether or not the Master Servicer directs the investment of
funds in any of the Servicing Accounts, the Reserve Accounts, the Defeasance
Deposit Account or the Custodial Accounts, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each such Investment Account for each Collection Period
(and, in the case of Servicing Accounts, Reserve Accounts and the Defeasance
Deposit Account, to the extent not otherwise payable to Mortgagors under
applicable law or the related Loan documents), shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.03(a), 3.03(d), 3.04(a), 3.05(a) or 3.05A, as
applicable. Whether or not the Special Servicer directs the investment of funds
in either of the REO Accounts, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.17(b). If any loss shall be incurred in respect of
any Permitted Investment on deposit in any Investment Account, the Master
Servicer (in the case of (i) the Servicing Accounts, the Reserve Accounts and
the Defeasance Deposit Account (except to the extent that any investment of
funds with respect thereto is at the direction of a Mortgagor in accordance with
the related Loan documents or applicable law) and (ii) the Custodial Accounts)
and the Special Servicer (in the case of the REO Accounts) shall promptly
deposit therein from its own funds, without right of reimbursement, no later
than the end of the Collection Period during which such loss was incurred, the
amount of the Net Investment Loss, if any, for such Investment Account for such
Collection Period. Notwithstanding any of the foregoing provisions of this
Section 3.06, no party shall be required under this Agreement to deposit any
loss on a deposit of funds in an Investment Account if such loss is incurred
solely as a result of the insolvency of the federal or state chartered
depository institution or trust company with which such deposit was maintained
so long as such depository institution or trust company satisfied the conditions
set forth in the definition of "Eligible Account" at the time such deposit was
made and also as of a date no earlier than 30 days prior to the insolvency.
(c) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and subject to Section 8.02, upon the request of
Certificateholders entitled to a majority of the Voting Rights allocated to a
Class, shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount, the Master Servicer Remittance Amount and
the Loan Group Remittance Amount, the amounts so invested shall be deemed to
remain on deposit in such Investment Account.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage; Environmental Insurance.
(a) The Master Servicer shall, consistent with the Servicing
Standard, cause to be maintained for each Mortgaged Property (other than the
Mortgaged Property securing the Non-Serviced Loan Groups, which are serviced
under the applicable Lead PSA) that is not an REO Property, all insurance
coverage as is required under the related Mortgage (except to the extent that
the failure to maintain such insurance coverage is an Acceptable Insurance
Default); provided that, if and to the extent that any such Mortgage permits the
holder thereof any discretion (by way of consent, approval or otherwise) as to
the insurance coverage that the related Mortgagor is required to maintain, the
Master Servicer or Special Servicer, as the case may be, shall exercise such
discretion in a manner consistent with the Servicing Standard; and provided,
further, that, if and to the extent that a Mortgage so permits, the Master
Servicer or Special Servicer, as the case may be, shall use reasonable efforts
consistent with the Servicing Standard to require the related Mortgagor to
obtain the required insurance coverage from Qualified Insurers that have a
"claims paying ability" or "financial strength" rating, as applicable, of at
least "A" from S&P, "A" from Fitch Ratings and "A2" by Xxxxx'x (or, in the case
of any such Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to the Certificates or any Companion Loan Securities,
as evidenced in writing by such Rating Agency); and provided, further, that the
Master Servicer shall cause to be maintained for any such Mortgaged Property
from Qualified Insurers that have a "claims paying ability" or "financial
strength rating," as applicable, of at least "A" from S&P, "A" from Fitch
Ratings and "A2" from Xxxxx'x, any such insurance that the related Mortgagor is
required but fails to maintain, only to the extent that the Trustee (as
mortgagee of record on behalf of the Certificateholders and, in the case of a
Loan Group Mortgaged Property, the related Companion Loan Noteholders) has an
insurable interest, and such insurance is available at a commercially reasonable
rate and the subject hazards are at the time commonly insured against by prudent
owners of properties similar to the Mortgaged Property located in or around the
region in which such Mortgaged Property is located.
Notwithstanding the foregoing, the Master Servicer or Special
Servicer, as applicable, will not be required to maintain (in the case of the
Special Servicer, with respect any REO Property), and shall not cause a
Mortgagor to be in default with respect to the failure of the related Mortgagor
to obtain, all-risk casualty insurance that does not contain any carve-out for
terrorist or similar acts, if, and only if, (1) the Special Servicer has
determined in accordance with the Servicing Standard that either (a) such
insurance is not available at any rate, or (b) 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 Mortgaged Property and
located in or around the region in which such Mortgaged Property is located; and
(2) the Special Servicer has obtained the consent or deemed consent of the
Directing Holder or its representative in accordance with the provisions of
Section 6.11. The requirement of the Special Servicer to obtain the consent of
the Directing Holder shall be subject to the following limitations: (a) the
Special Servicer shall not be required to obtain the consent of the Directing
Holder or its representative if such consent would cause the Special Servicer to
violate the Servicing Standard, (b) the Directing Holder's consent shall be
deemed to have been given if it has not responded within ten Business Days of
receipt of the Special Servicer's written recommendation and the information
upon which such recommendation is based, and (c) upon the Special Servicer's
determination, consistent with the Servicing Standard, that exigent
circumstances do not allow the Special Servicer to consult with the Directing
Holder, the Special Servicer will not be required to do so.
During the period in which the Special Servicer is evaluating such
terrorism insurance coverage hereunder, the Master Servicer shall not be liable
for any loss related to its failure to require the Mortgagor to maintain
terrorism insurance and shall not be in default of its obligations hereunder as
a result of such failure, provided that the Master Servicer has given prompt
notice to the Special Servicer of its determination that it will not be
successful in its efforts to cause the Mortgagor to obtain such insurance, along
with its determination, and any information in its possession, regarding the
availability and cost of such insurance. The Special Servicer shall be required
to promptly notify the Master Servicer of each determination made under the two
preceding paragraphs.
Any Controlling Class Certificateholder or, in the case of a Loan
Group, the holder of the related Subordinate Companion Loan (and/or in the case
of the 000 Xxxxxx Xxxxxx Loan Group, the Class OEA-B Majority Holder), may
request that earthquake insurance be secured for one or more Mortgaged
Properties by the related Mortgagor, to the extent such insurance may reasonably
be obtained and, provided the related Loan documents and applicable law give the
mortgagee the right to request such insurance coverage and such Loan documents
require the Mortgagor to obtain earthquake insurance at the request of the
mortgagee.
Subject to Section 3.18(a), the Special Servicer, in accordance with
the Servicing Standard, shall also cause to be maintained for each REO Property
no less insurance coverage than was previously required of the Mortgagor under
the related Mortgage (including insurance that covers losses arising from acts
of terrorism); provided that such insurance is available at commercially
reasonable rates and the subject hazards are at the time commonly insured
against by prudent owners of properties similar to the REO Property located in
or around the region in which such REO Property is located (or, in the case of
all-risk insurance or other insurance that covers acts of terrorism, such
insurance is available at a commercially reasonable rate or the subject hazards
are at the time commonly insured against by prudent owners of properties similar
to the REO Property located in or around the region in which such REO Property
is located); and provided, further, that all such insurance shall be obtained
from Qualified Insurers that, if they are providing casualty insurance, shall
have a "claims paying ability" or "financial strength" rating, as applicable, of
at least "A" from S&P, "A" from Fitch Ratings and "A2" from Xxxxx'x (or, in the
case of either Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to the Certificates or any Companion Loan Securities,
as evidenced in writing by such Rating Agency). All such insurance policies
shall contain (if they insure against loss to property and do not relate to an
REO Property) a "standard" mortgagee clause, with loss payable to the Master
Servicer (in the case of insurance maintained in respect of Loans, including
Specially Serviced Loans), or the Special Servicer (in the case of insurance
maintained in respect of REO Properties), on behalf of the Trustee; and, in each
case, such insurance shall be issued by a Qualified Insurer. Any amounts
collected by the Master Servicer or the Special Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or REO Property or amounts to be released to the related
Mortgagor, in each case subject to the rights of any tenants and ground lessors,
as the case may be, and in each case in accordance with the terms of the related
Mortgage and the Servicing Standard) shall be deposited in the applicable
Custodial Account in accordance with Section 3.04(a) or 3.04A(a), as the case
may be, in the case of amounts received in respect of a Loan, or in the
applicable REO Account in accordance with Section 3.17(b), in the case of
amounts received in respect of an REO Property. Any cost incurred by the Master
Servicer or the Special Servicer in maintaining any such insurance (including
any earthquake insurance maintained at the request of a Controlling Class
Certificateholder or the related Companion Loan Noteholders or Class OEA-B
Majority Holder) shall not, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance or
Stated Principal Balance of the related Loan or REO Loan, notwithstanding that
the terms of such loan so permit, but shall be recoverable by the Master
Servicer and the Special Servicer as a Servicing Advance.
(b) If either the Master Servicer or the Special Servicer shall
obtain and maintain, or cause to be obtained and maintained, a blanket policy
insuring against hazard losses on all of the Serviced Loans and/or REO
Properties that it is required to service and administer, then, to the extent
such policy (i) is obtained from a Qualified Insurer having (or whose
obligations are guaranteed or backed, in writing, by an entity having) a "claims
paying ability" or "financial strength" rating, as applicable, of at least "A"
from S&P, "A" from Fitch Ratings and "A3" from Xxxxx'x (if then rated by
Xxxxx'x, and if not then rated by Xxxxx'x, then a rating of at least "A" by S&P)
(or, in the case of each Rating Agency, such lower rating as will not result in
an Adverse Rating Event with respect to the Certificates or any Companion Loan
Securities, as evidenced in writing by such Rating Agency), and (ii) provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or the Special Servicer, as the case may be, shall conclusively be
deemed to have satisfied its obligation to cause hazard insurance to be
maintained on the related Mortgaged Properties and/or REO Properties. Such
blanket policy may contain a deductible clause (not in excess of a customary
amount), in which case the Master Servicer or the Special Servicer, as
appropriate, shall, if there shall not have been maintained on the related
Mortgaged Property or REO Property an individual hazard insurance policy
complying with the requirements of Section 3.07(a), and there shall have been
one or more losses that would have been covered by such individual policy,
promptly deposit into the applicable Custodial Account from its own funds the
amount not otherwise payable under the blanket policy because of the deductible
clause therein, to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Loan (or in the absence of any such
deductible limitation, the deductible limitation for an individual policy which
is consistent with the Servicing Standard). The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee and the Certificateholders and, in the case of a Loan Group Mortgaged
Property, the related Companion Loan Noteholders, claims under any such blanket
policy in a timely fashion in accordance with the terms of such policy.
(c) Subject to the third paragraph of this Section 3.07(c), each of
the Master Servicer and the Special Servicer shall at all times during the term
of this Agreement (or, in the case of the Special Servicer, at all times during
the term of this Agreement in which Specially Serviced Loans and/or REO
Properties are part of the Trust Fund) keep in force with Qualified Insurers
having (or whose obligations are guaranteed or backed, in writing, by entities
having) a "claims paying ability" or "financial strength" rating, as applicable,
of at least "A" from S&P, "A" from Fitch Ratings and "A2" from Xxxxx'x (or, if
not then rated by Xxxxx'x, then at least "A:IX" by A.M. Best's Key Rating Guide)
(or, in the case of either Rating Agency, such lower rating as will not result
in an Adverse Rating Event with respect to the Certificates or Companion Loan
Securities, as evidenced in writing by such Rating Agency), a fidelity bond,
which fidelity bond shall be in such form and amount as would permit it to be a
qualified Xxxxxx Xxx seller-servicer of multifamily mortgage loans, or in such
other form and amount as would not cause an Adverse Rating Event with respect to
the Certificates or Companion Loan Securities (as evidenced in writing from each
Rating Agency). Each of the Master Servicer and the Special Servicer shall be
deemed to have complied with the foregoing provision if an Affiliate thereof has
such fidelity bond coverage and, by the terms of such fidelity bond, the
coverage afforded thereunder extends to the Master Servicer or the Special
Servicer, as the case may be.
Subject to the third paragraph of this Section 3.07(c), each of the
Master Servicer and the Special Servicer shall at all times during the term of
this Agreement (or, in the case of the Special Servicer, at all times during the
term of this Agreement in which Specially Serviced Loans and/or REO Properties
are part of the Trust Fund) also keep in force with Qualified Insurers having
(or whose obligations are guaranteed or backed, in writing, by entities having)
a "claims paying ability" or "financial strength" rating, as applicable, of at
least "A" from S&P, "A" from Fitch Ratings and "A2" from Xxxxx'x (or, if not
then rated by Xxxxx'x, then at least "A:IX" by A.M. Best's Key Rating Guide)
(or, in the case of either Rating Agency, such lower rating as will not result
in an Adverse Rating Event with respect to the Certificates or Companion Loan
Securities, as evidenced in writing by such Rating Agency), a policy or policies
of insurance covering loss occasioned by the errors and omissions of its
officers, employees and agents in connection with its servicing obligations
hereunder, which policy or policies shall be in such form and amount as would
permit it to be a qualified Xxxxxx Xxx seller-servicer of multifamily mortgage
loans, or in such other form and amount as would not cause an Adverse Rating
Event with respect to the Certificates or Companion Loan Securities (as
evidenced in writing from each Rating Agency). Each of the Master Servicer and
the Special Servicer shall be deemed to have complied with the foregoing
provisions if an Affiliate thereof has such insurance and, by the terms of such
policy or policies, the coverage afforded thereunder extends to the Master
Servicer or the Special Servicer, as the case may be.
Notwithstanding the foregoing, for so long as the long-term debt
obligations of the Master Servicer or Special Servicer, as the case may be, are
rated at least "AA-" from Fitch Ratings, "A2" from Xxxxx'x (if then rated by
Xxxxx'x, and if not then rated by Xxxxx'x, then an equivalent rating by at least
one additional nationally recognized statistical rating agency besides S&P) and
"A" from S&P (or, in the case of any such Rating Agency, such lower rating as
will not result in an Adverse Rating Event with respect to the Certificates or
any Companion Loan Securities, as evidenced in writing by such Rating Agency),
such Person may self-insure with respect to the risks described in this Section
3.07(c).
(d) In the event that either of the Master Servicer or the Special
Servicer has actual knowledge of any event (an "Insured Environmental Event")
giving rise to a claim under any Environmental Insurance Policy in respect of
any Environmentally Insured Mortgage Loan for which the Mortgagor has not filed
a claim or in respect of an REO Property, the Master Servicer shall notify the
Special Servicer if such Loan is a Specially Serviced Loan, and the Special
Servicer shall notify the Master Servicer in all cases. Upon becoming aware of
such Insured Environmental Event, the Master Servicer, in the case of a
Performing Serviced Loan, and the Special Servicer, in the case of a Specially
Serviced Loan or an REO Property, in accordance with the terms of such
Environmental Insurance Policy and the Servicing Standard, shall timely make a
claim thereunder with the appropriate insurer and shall take such other actions
necessary under such Environmental Insurance Policy in order to realize the full
value thereof for the benefit of the Certificateholders. With respect to each
Environmental Insurance Policy in respect of an Environmentally Insured Mortgage
Loan, the Master Servicer (in the case of any such Loan that is a Performing
Serviced Loan) and the Special Servicer (in the case of any such Loan that is a
Specially Serviced Loan or in the case of an REO Property) shall each review and
familiarize itself with the terms and conditions relating to enforcement of
claims and shall, in the event the Master Servicer or the Special Servicer has
actual knowledge of an Insured Environmental Event giving rise to a claim under
such policy, monitor the dates by which any claim must be made or any action
must be taken under such policy to realize the full value thereof for the
benefit of the Certificateholders.
The Master Servicer (in the case of Performing Serviced Loans) and
the Special Servicer (in the case of Specially Serviced Loans and REO
Properties) shall each abide by the terms and conditions precedent to payment of
claims under the Environmental Insurance Policies with respect to the
Environmentally Insured Mortgage Loans and take all such actions as may be
required to comply with the terms and provisions of such policies in order to
maintain such policies in full force and effect and to make claims thereunder.
In the event that either the Master Servicer or the Special Servicer
receives notice of a termination of any Environmental Insurance Policy with
respect to an Environmentally Insured Mortgage Loan, then the party receiving
such notice shall, within five Business Days after receipt thereof, provide
written notice of such termination to the other such party and the Trustee. Upon
receipt of such notice, the Master Servicer, with respect to a Performing
Serviced Loan, or the Special Servicer, with respect to a Specially Serviced
Loan or an REO Property, shall address such termination in accordance with
Section 3.07(a). Any legal fees, premiums or other out-of-pocket costs incurred
in accordance with the Servicing Standard in connection with enforcing the
obligations of the Mortgagor under any Environmental Insurance Policy or a
resolution of such termination of an Environmental Insurance Policy shall be
paid by the Master Servicer and shall be reimbursable to it as a Servicing
Advance.
The Master Servicer (with respect to Performing Serviced Loans) and
the Special Servicer (with respect to Specially Serviced Loans) shall monitor
the actions, and enforce the obligations, of the related Mortgagor under each
Environmentally Insured Mortgage Loan insofar as such actions/obligations relate
to (i) to the extent consistent with Section 3.07(a), the maintenance
(including, without limitation, any required renewal) of an Environmental
Insurance Policy with respect to the related Mortgaged Property or (ii)
environmental testing or remediation at the related Mortgaged Property.
Section 3.08 Enforcement of Due-on-Sale and Due on Encumbrance
Provisions.
(a) If, with respect to any Performing Serviced Loan, the Master
Servicer receives a request from a Mortgagor regarding (1) the transfer of the
related Mortgaged Property to another Person, (2) the assumption of such Loan by
another Person or (3) the transfer of certain interests in such Mortgagor to
another Person, then the Master Servicer shall promptly obtain relevant
information for purposes of evaluating such request. If the Master Servicer
determines, consistent with the Servicing Standard, (A) to approve such transfer
and/or assumption or (B) that for any Performing Serviced Loan that, pursuant to
its respective loan documents, may be transferred or assumed without the consent
of the lender, provided certain conditions are satisfied, that such conditions
are satisfied, then the Master Servicer shall promptly provide to the Special
Servicer a written copy of such recommendation or determination (which shall
include the reason therefor) and the materials upon which such recommendation or
determination is based. The Special Servicer shall have the right hereunder,
within 15 days of receipt of such recommendation or determination and supporting
materials and any other materials reasonably requested by the Special Servicer
to reasonably withhold or grant consent to any such request for such transfer
and/or assumption or determination in accordance with the terms of the Loan and
this Agreement, including, without limitation, the Servicing Standard; provided
that any grant of consent on the part of the Special Servicer shall be subject
to Section 3.08(d) and Section 6.11. If the Special Servicer does not respond
within such 15-day period, the Special Servicer's consent shall be deemed
granted. If the Special Servicer consents or is deemed to have consented to such
proposed transfer and/or assumption or determination, then the Master Servicer
(subject to Section 3.08(d)) shall process the request of the related Mortgagor
and is hereby authorized to enter into an assumption or substitution agreement
with the proposed transferee/assignee, which shall be a Single Purpose Entity,
and/or release the original Mortgagor from liability under the related Loan.
Subject to Sections 3.21 and 6.11, the following additional terms
and conditions apply to any determination made pursuant to the prior paragraph:
(i) the Master Servicer may not enter into any assumption or
substitution agreement to the extent that any terms thereof would
result in an Adverse REMIC Event or Adverse Grantor Trust Event;
(ii) the Master Servicer may not enter into any assumption or
substitution agreement to the extent that any terms thereof would
create any lien on a Mortgaged Property that is senior to, or on
parity with, the lien of the related Mortgage;
(iii) the Master Servicer shall notify the Trustee, the
Special Servicer, each Rating Agency and, in the case of a Serviced
Loan Group, the related Companion Loan Noteholder, of any assumption
or substitution agreement executed pursuant to this Section 3.08(a)
and shall forward thereto a copy of such agreement, together with
copies of all relevant documentation;
(iv) subject to the terms of the related Loan documents, no
assumption of a Cross-Collateralized Mortgage Loan may be made
without the assumption of all other Mortgage Loans making up the
related Cross-Collateralized Group and no assumption of any Loan in
a Loan Group may be made without the assumption of all Loans in such
Loan Group; and
(v) subject to the terms of the related Loan documents and
applicable law, no assumption of a Loan shall be made or transfer of
interest in a Mortgagor approved, unless all costs in connection
therewith, including any arising from seeking Rating Agency
confirmation, are paid by the related Mortgagor.
If the Special Servicer does not consent to, or is not deemed to
have consented to, such transfer and/or assumption or determination, then the
Master Servicer, on behalf of the Trustee (as mortgagee of record on behalf of
the Certificateholders and, in the case of a Mortgaged Property relating to a
Loan Group, the related Companion Loan Noteholder) shall, to the extent
permitted by applicable law, enforce such transferability and assumption
restrictions.
(b) If, with respect to any Specially Serviced Loan, the Master
Servicer or the Special Servicer receives a request from a Mortgagor regarding
(1) the transfer of the related Mortgaged Property to another Person, (2) the
assumption of such Loan by another Person or (3) the transfer of certain
interests in such Mortgagor to another Person, the Master Servicer (if the
Master Servicer is the party that received the request from the Mortgagor) shall
promptly notify the Special Servicer of such request and the Master Servicer
shall deliver to the Special Servicer the Mortgage File (or a copy thereof) and
such other documents that the Master Servicer shall have received regarding the
proposed transfer and/or assumption. The Master Servicer shall only be required
to deliver the foregoing items to the extent in its possession and to the extent
such items have not already been delivered to the Special Servicer. If the
Special Servicer determines, consistent with the Servicing Standard, to approve
such transfer and/or assumption, or that for any Mortgage Loan or Serviced Loan
Group that, pursuant to its respective loan documents, may be transferred or
assumed without the consent of the lender, provided certain conditions are
satisfied, that such conditions are satisfied, the Special Servicer, subject to
Section 3.08(d) and Section 6.11, shall process the request of the related
Mortgagor and is hereby authorized to enter into an assumption or substitution
agreement with the proposed transferee/assignee, which shall be a Single Purpose
Entity, and/or release the original Mortgagor from liability under the related
Loan.
Subject to Section 3.21 and Section 6.11, the following additional
terms and conditions apply to any determination made pursuant to the prior
paragraph:
(i) the Special Servicer may not enter into any assumption or
substitution agreement to the extent that any terms thereof would
result in an Adverse REMIC Event or an Adverse Grantor Trust Event;
(ii) the Special Servicer may not enter into any assumption or
substitution agreement to the extent that any terms thereof would
create any lien on a Mortgaged Property that is senior to, or on
parity with, the lien of the related Mortgage;
(iii) the Special Servicer shall notify the Trustee, the
Master Servicer, each Rating Agency and, with respect to a Loan
Group, the related Companion Loan Noteholders of any assumption or
substitution agreement executed pursuant to this Section 3.08(b) and
shall forward thereto a copy of such agreement;
(iv) subject to the terms of the related Loan documents, no
assumption of a Cross-Collateralized Mortgage Loan shall be made
without the assumption of all other Mortgage Loans making up the
related Cross-Collateralized Group and no assumption of any Loan in
a Loan Group may be made without the assumption of all Loans in such
Loan Group; and
(v) subject to the terms of the related Loan documents and
applicable law, no assumption of a Loan shall be made unless all
costs in connection therewith, including any arising from seeking
Rating Agency confirmation, are paid by the related Mortgagor.
(c) If, with respect to a Performing Serviced Loan, the Master
Servicer receives a request from the Mortgagor regarding a further encumbrance
of the related Mortgaged Property or interests in the related Mortgagor, then
the Master Servicer shall promptly obtain relevant information for purposes of
evaluating such request. If the Master Servicer determines, consistent with the
Servicing Standard, (A) to approve such further encumbrance or (B) that for any
Performing Serviced Loan that, pursuant to its respective loan documents,
permits further encumbrances without the consent of the lender, provided certain
conditions are satisfied, that such conditions are satisfied, then the Master
Servicer shall provide to the Special Servicer a written copy of such
recommendation or determination (which shall include the reason therefor) and
the materials upon which such recommendation or determination is based. The
Special Servicer shall have the right hereunder, within 15 days of receipt of
such recommendation or determination and supporting materials and any other
materials reasonably requested by the Special Servicer, to reasonably withhold
or, subject to Section 3.08(d) and Section 6.11, grant consent to any such
request for such further encumbrance of the related Mortgaged Property. If the
Special Servicer does not respond within such 15-day period, the Special
Servicer's consent shall be deemed granted. If the Special Servicer consents or
is deemed to have consented to such further encumbrance of the related Mortgaged
Property, the Master Servicer shall process such request of the related
Mortgagor.
If the Special Servicer does not consent to, and is not deemed to
have consented to, such further encumbrance or determination, then the Master
Servicer, on behalf of the Trustee (as mortgagee of record on behalf of the
Certificateholders and, in the case of a Mortgaged Property that relates to a
Loan Group, the related Companion Loan Noteholder) shall, to the extent
permitted by applicable law, enforce the restrictions contained in the related
Loan documents on further encumbrances of the related Mortgaged Property or
interests in the related Mortgagor.
If, with respect to any Specially Serviced Loan, the Master Servicer
or the Special Servicer receives a request from a Mortgagor regarding a further
encumbrance of the related Mortgaged Property or interests in the related
Mortgagor, the Master Servicer (if the Master Servicer is the party that
received such notice from the Mortgagor) shall promptly notify the Special
Servicer of such request and the Master Servicer shall deliver to the Special
Servicer the Mortgage File (or a copy thereof) and such other documents that the
Master Servicer shall have received regarding the proposed encumbrance. The
Master Servicer shall only be required to deliver the foregoing items to the
extent in its possession and to the extent such items have not already been
delivered to the Special Servicer. If the Special Servicer determines,
consistent with the Servicing Standard, to approve such encumbrance or that for
any Mortgage Loan or Serviced Loan Group that, pursuant to its respective loan
documents, permits further encumbrances without the consent of the lender,
provided certain conditions are satisfied, that such conditions are satisfied,
the Special Servicer shall process the request of the related Mortgagor.
With respect to any Specially Serviced Loans, the Special Servicer
on behalf of the Trustee (as mortgagee of record on behalf of the
Certificateholders and, in the case of a Loan Group Mortgaged Property, the
related Companion Loan Noteholders) shall, to the extent permitted by applicable
law, enforce the restrictions contained in the related Loan documents on further
encumbrances of the related Mortgaged Property or interests in the related
Mortgagor, and process all documentation in connection therewith, unless the
Special Servicer has determined, in its reasonable, good faith judgment, that
waiver of such restrictions would be in accordance with the Servicing Standard
(as evidenced by an Officer's Certificate setting forth the basis for such
determination delivered to the Trustee, the Master Servicer, each Rating Agency
and, with respect to a Loan Group, the related Companion Loan Noteholder);
provided that any such waiver of such restrictions shall be subject to Section
3.08(d) and Section 6.11.
(d) In addition to the terms and conditions set forth above in this
Section 3.08,
(i) neither the Master Servicer (with respect to Performing Serviced
Loans) nor the Special Servicer (with respect to Specially Serviced
Mortgage Loans) may waive any restrictions contained in the related
Mortgage on transfers of the related Mortgaged Property or on transfers of
interests in the related Mortgagor unless:
(A) the Master Servicer or the Special Servicer, as the case
may be, has received prior written confirmation from each Rating
Agency that such action would not result in an Adverse Rating Event
with respect to the Certificates or any Companion Loan Securities;
or
(B) the related Mortgage Loan (1) represents less than 2% of
the principal balance of all of the Pooled Mortgage Loans (or, if
the aggregate principal balance of all the Pooled Mortgage Loans is
less than $100 million, represents less than 5% of the principal
balance of all Pooled Mortgage Loans), (2) has a principal balance
that is equal to or less than $20,000,000 and (3) is not one of the
10 largest Mortgage Loans in the Mortgage Pool based on principal
balance.
(ii) neither the Master Servicer (with respect to Performing
Serviced Loans) nor the Special Servicer (with respect to Specially
Serviced Mortgage Loans) may waive any restrictions contained in the
related Mortgage on further encumbrances of the related Mortgaged Property
or interests in the related Mortgagor unless:
(A) the Master Servicer or the Special Servicer, as the case
may be, has received prior written confirmation from each Rating
Agency that such action would not result in an Adverse Rating Event
with respect to the Certificates or any Companion Loan Securities;
(B) the related Mortgage Loan (A) represents less than 2% the
principal balance of all of the Pooled Mortgage Loans, (B) has a
principal balance that is equal to or less than $20,000,000, (C) is
not one of the 10 largest mortgage loans in the Mortgage Pool based
on principal balance, (D) does not have an aggregate loan-to-value
ratio (including existing and proposed additional debt) that is
equal to or greater than 85%, and (E) does not have an aggregate
debt service coverage ratio (including the debt service on the
existing and proposed additional debt) that is equal to or less than
1.2x to 1.0x; or
(C) the encumbrance relates to the grant of an easement,
right-of-way or similar encumbrance that the Special Servicer
determines will not have a material adverse impact on the value, use
or operation of the Mortgaged Property or the ability of the
borrower to perform its obligations under the Loan.
In connection with any request for rating confirmation from a Rating
Agency pursuant to this Section 3.08(d), the Master Servicer or the Special
Servicer, as the case may be, shall deliver its written analysis and
recommendation (in accordance with the Servicing Standard) with respect to the
matters that are the subject thereof, and copies of all relevant supporting
documentation to such Rating Agency. Further, subject to the terms of the
related Loan documents and applicable law, no waiver of a restriction contained
in the related Mortgage on transfers of the related Mortgaged Property or
interests in the related Mortgagor or on further encumbrances thereof may be
waived by the Master Servicer or the Special Servicer, as applicable, unless all
costs in connection therewith, including any arising from seeking Rating Agency
confirmation, are paid by the related Mortgagor. To the extent not collected
from the related Mortgagor, any rating agency charges in connection with the
foregoing shall be paid by the Master Servicer as a Servicing Advance.
(e) To the extent permitted by the applicable Loan documents and
applicable law, the Master Servicer or Special Servicer may charge the related
Mortgagor (and retain or share such fee in accordance with Section 3.11) a fee
in connection with any enforcement or waiver contemplated in this Section 3.08.
Section 3.09 Realization Upon Defaulted Loans; Required Appraisals;
Appraisal Reduction Calculation.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 6.11, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Specially Serviced Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments, including pursuant to Section 3.21.
Subject to Section 3.12(d) and Section 3.20(d), the Special Servicer shall
advance all costs and expenses incurred by it in any such proceedings, and shall
be entitled to reimbursement therefor as provided in Section 3.05(a) or Section
3.05A, as applicable. The Special Servicer shall be responsible, consistent with
the Servicing Standard, for determining whether to exercise any rights it may
have under the cross-collateralization and/or cross-default provisions of a
Cross-Collateralized Mortgage Loan. Nothing contained in this Section 3.09 shall
be construed so as to require the Special Servicer, on behalf of the
Certificateholders and, in the case of a Loan Group Mortgaged Property, on
behalf of the related Companion Loan Noteholders, to make a bid on any Mortgaged
Property at a foreclosure sale or similar proceeding that is in excess of the
fair market value of such property, as determined by the Special Servicer in its
reasonable and good faith judgment taking into account the factors described in
Section 3.19 and the results of any appraisal obtained as provided below in this
Section 3.09, all such bids to be made in a manner consistent with the Servicing
Standard.
If and when the Master Servicer or the Special Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a Specially Serviced Loan, whether for purposes of
bidding at foreclosure or otherwise, it may have an appraisal performed with
respect to such property by an Independent Appraiser or other expert in real
estate matters, which appraisal shall take into account the factors specified in
Section 3.19, and the cost of which appraisal shall be covered by, and be
reimbursable as, a Servicing Advance; provided that if the Master Servicer
intends to obtain an appraisal in connection with the foregoing, the Master
Servicer shall so notify the Special Servicer and consult with the Special
Servicer regarding such appraisal.
If any Serviced Loan becomes a Required Appraisal Loan, then the
Special Servicer shall (i) obtain or conduct, as applicable, a Required
Appraisal within 60 days of such Serviced Loan's becoming a Required Appraisal
Loan (unless a Required Appraisal was obtained or conducted, as applicable, with
respect to such Required Appraisal Loan within the prior 12 months and the
Special Servicer reasonably believes, in accordance with the Servicing Standard,
that no material change has subsequently occurred with respect to the related
Mortgaged Property that would draw into question the applicability of such
Required Appraisal) and (ii) obtain or conduct, as applicable, an update of the
most recent Required Appraisal approximately 12 months following the most recent
Required Appraisal or subsequent update thereof for so long as such Serviced
Loan or any successor REO Loan, as the case may be, remains a Required Appraisal
Loan. The Special Servicer shall deliver copies of all such Required Appraisals
and updated Required Appraisals to the Trustee, the Master Servicer, in the case
of a Loan Group Mortgaged Property, the related Companion Loan Noteholder, and
in the case of the 000 Xxxxxx Xxxxxx Loan Group Mortgaged Property, the Holders
of the Class OEA-B Certificates, in each such case, promptly following the
Special Servicer's receipt of the subject appraisal, and to the Controlling
Class Directing Holder upon request, and based thereon, the Special Servicer
shall calculate and notify the Trustee, the Master Servicer, the Controlling
Class Directing Holder, with respect to a Loan Group, the related Companion Loan
Noteholders, and with respect to the 000 Xxxxxx Xxxxxx Loan Group, the Holder of
the Class OEA-B Certificates, of any resulting Appraisal Reduction Amount. Such
calculations by the Special Servicer shall be subject to review and confirmation
by the Master Servicer, provided that the Master Servicer may rely on any
information provided by the Special Servicer.
The Master Servicer shall, at the direction of the Special Servicer,
advance the cost of each such Required Appraisal and updated Required Appraisal;
provided, however, that such expense will be subject to reimbursement to the
Master Servicer as a Servicing Advance out of the related Custodial Account
pursuant to Section 3.05(a) or Section 3.05A. At any time that an Appraisal
Reduction Amount exists with respect to any Required Appraisal Loan, the
applicable Directing Holder (without giving effect to any Control Appraisal
Event which may have been triggered by the most recent Appraisal Reduction
Amount) may, at its own expense, direct the Special Servicer to obtain and
deliver to the Master Servicer, the Directing Holder and the Trustee an
appraisal that satisfies the requirements of a "Required Appraisal," and upon
the written request of the applicable Directing Holder, if such new appraisal
materially differs from the previously obtained Required Appraisal, the Special
Servicer shall recalculate the Appraisal Reduction Amount in respect of such
Required Appraisal Loan based on the appraisal obtained by the Special Servicer
and shall notify the Trustee, the Master Servicer and the applicable Directing
Holder of such recalculated Appraisal Reduction Amount.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Certificateholders (and, in the case of a Loan Group Mortgaged Property, the
related Companion Loan Noteholders) under such circumstances, in such manner or
pursuant to such terms as would, in the reasonable, good faith judgment of the
Special Servicer (exercised in accordance with the Servicing Standard), (i)
cause such Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (unless the portion of such
Mortgaged Property that is not treated as "foreclosure property" and that is
held by the applicable Loan REMIC or the Lower-Tier REMIC at any given time
constitutes not more than a de minimis amount of the assets of such Loan REMIC
or the Lower-Tier REMIC within the meaning of Treasury Regulations Section
1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section 3.18(a),
subject the Trust Fund to the imposition of any federal income taxes under the
Code. Subject to the foregoing, however, a Mortgaged Property may be acquired
through a single member limited liability company if the Special Servicer
determines that such an action is appropriate to protect the Trust and/or any
related Companion Loan Noteholder from potential liability.
In addition, the Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 unless either:
(i) such personal property is, in the reasonable, good faith
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), incident to real property (within the meaning of
Section 856(e)(1) of the Code) so acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and be reimbursable as, a
Servicing Advance) to the effect that the holding of such personal
property as part of the Trust Fund will not cause the imposition of a tax
on either REMIC Pool or any Loan REMIC under the REMIC Provisions or cause
either REMIC Pool or any Loan REMIC to fail to qualify as a REMIC at any
time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee (and, in the case of a Loan Group Mortgaged Property, on behalf of the
related Companion Loan Noteholders), obtain title to a Mortgaged Property by
foreclosure, deed in lieu of foreclosure or otherwise, or take any other action
with respect to any Mortgaged Property, if, as a result of any such action, the
Trustee, on behalf of the Certificateholders (and, in the case of a Loan Group
Mortgaged Property, the related Companion Loan Noteholders), could, in the
reasonable, good faith judgment of the Special Servicer, exercised in accordance
with the Servicing Standard, be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law (a
"potentially responsible party"), unless such action is consistent with Section
6.11 and the Special Servicer has previously determined (as evidenced by an
Officer's Certificate to such effect delivered to the Trustee (and, in the case
of a Loan Group Mortgaged Property, the related Companion Loan Noteholders, and
in the case of the 000 Xxxxxx Xxxxxx Loan Group, the Holders of the Class OEA-B
Certificates) that shall specify all of the bases for such determination), in
accordance with the Servicing Standard and based on an Environmental Assessment
of such Mortgaged Property performed by an Independent Person, who regularly
conducts Environmental Assessments, within six months prior to any such
acquisition of title or other action (a copy of which Environmental Assessment
shall be delivered to the Trustee, the Master Servicer and, in the case of a
Loan Group Mortgaged Property, the related Companion Loan Noteholders, and in
the case of the 000 Xxxxxx Xxxxxx Loan Group, the Holders of the Class OEA-B
Certificates), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would (taking into
account the coverage provided under any related Environmental Insurance
Policy) maximize the recovery on the related Serviced Loan to the
Certificateholders (as a collective whole) (or, if a Loan Group is
involved, would maximize the recovery on such Loan Group to the
Certificateholders and the related Companion Loan Noteholders (as a
collective whole)), on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders
(or, in the case of a Loan Group, to Certificateholders and the related
Companion Loan Noteholders) to be performed at the related Mortgage Rate
(or, in the case of any Loan Group, at the weighted average of the
Mortgage Rates for such Loan Group)) in each case) to acquire title to or
possession of the Mortgaged Property and to take such actions as are
necessary to bring the Mortgaged Property into compliance therewith in all
material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could reasonably be
expected to be required, that it would (taking into account the coverage
provided under any related Environmental Insurance Policy) maximize the
recovery on the related Serviced Loan to the Certificateholders (as a
collective whole) (or, if a Loan Group is involved, would maximize the
recovery of such Loan Group to the Certificateholders and the related
Companion Loan Noteholders (as a collective whole)), on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders (or, in the case of a Loan Group, to
Certificateholders and the related Companion Loan Noteholders) to be
performed at the related Mortgage Rate (or, in the case of any Loan Group,
at the weighted average of the Mortgage Rates for such Loan Group), in
each case, to acquire title to or possession of the Mortgaged Property and
to take such actions with respect to the affected Mortgaged Property.
The Special Servicer shall, in good faith, undertake reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform or
cause to be performed such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied (the cost of any
such additional testing also to be covered by, and reimbursable as, a Servicing
Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph, shall
be payable out of the related Custodial Account pursuant to Section 3.05 or
Section 3.05A, as applicable (or, in the case of a Loan Group, to the extent the
funds in the applicable Loan Group Custodial Account are insufficient, shall be
advanced by the Master Servicer).
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a defaulted Serviced Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust (and, if a
Companion Loan is affected, the related Companion Loan Noteholders), subject to
Section 6.11, release all or a portion of such Mortgaged Property from the lien
of the related Mortgage.
(e) The Special Servicer shall report to the Master Servicer, the
Underwriters, the Trustee, and if a Loan Group is affected, the related
Companion Loan Noteholders (and if the 000 Xxxxxx Xxxxxx Loan Group is affected,
the Holders of the Class OEA-B Certificates) monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property
that represents security for a defaulted Serviced Loan as to which the
environmental testing contemplated in Section 3.09(c) above has revealed that
any of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earlier to occur of
satisfaction of all such conditions and release of the lien of the related
Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the affected Serviced Loan permit such an action, and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable (the cost of which undertaking shall be covered by, and be
reimbursable as, a Servicing Advance).
(g) The Master Servicer shall, with the reasonable cooperation of
the Special Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received with respect to any Serviced Loan required
by Section 6050H of the Code and, as to any Serviced Loan, the reports of
foreclosures and abandonments of any Mortgaged Property and the information
returns relating to cancellation of indebtedness income with respect to any
Mortgaged Property required by Sections 6050J and 6050P of the Code. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Serviced Loan or REO Property, it shall
promptly notify the Trustee, the Master Servicer and, if a Loan Group is
affected, the related Companion Loan Noteholders (and if the 000 Xxxxxx Xxxxxx
Loan Group is affected, the Holders of the Class OEA-B Certificates). The
Special Servicer shall maintain accurate records, prepared by a Servicing
Officer, of each such Final Recovery Determination (if any) and the basis
thereof. Each such Final Recovery Determination (if any) shall be evidenced by
an Officer's Certificate delivered to the Trustee, the Master Servicer and, if a
Loan Group is affected, the related Companion Loan Noteholders (and if the 000
Xxxxxx Xxxxxx Loan Group is affected, the Holders of the Class OEA-B
Certificates), no later than the seventh Business Day following such Final
Recovery Determination.
Section 3.10 Trustee and Custodian to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Serviced Loan, or the receipt by
the Master Servicer or the Special Servicer of a notification that payment in
full shall be escrowed in a manner customary for such purposes, the Master
Servicer or the Special Servicer shall promptly notify the Trustee (and, in the
case of a Companion Loan, the related Companion Loan Noteholders (and in the
case of the 000 Xxxxxx Xxxxxx Loan Group, the Holders of the Class OEA-B
Certificates)) by a certification (which certification shall be in the form of a
Request for Release in the form of Exhibit D-1 attached hereto and shall be
accompanied by the form of a release or discharge and shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the appropriate Custodial
Account pursuant to Section 3.04(a) or 3.04A(a), as applicable, have been or
will be so deposited) of a Servicing Officer (a copy of which certification
shall be delivered to the Special Servicer) and shall request delivery to it of
the related Mortgage File and, in the case of a Companion Loan, the original of
the Mortgage Note for such Companion Loan. Upon receipt of such certification
and request, the Trustee shall release, or cause any related Custodian to
release, the related Mortgage File (and, in the case of a Companion Loan, the
Master Servicer shall cause the related Companion Loan Noteholders to release
the Mortgage Note for such Companion Loan) to the Master Servicer or Special
Servicer and shall deliver to the Master Servicer or Special Servicer, as
applicable, such release or discharge, duly executed. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Distribution Account or any Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof) (or the
original of the Mortgage Note for the Companion Loans), the Trustee, upon
request of the Master Servicer and receipt from the Master Servicer of a Request
for Release in the form of Exhibit D-1 attached hereto signed by a Servicing
Officer thereof, or upon request of the Special Servicer and receipt from the
Special Servicer of a Request for Release in the form of Exhibit D-2 attached
hereto, shall release, or cause any related Custodian to release, such Mortgage
File (or such portion thereof) (and, in the case of the Companion Loans, the
Master Servicer shall cause the related Companion Loan Noteholders to release
the original of the Mortgage Note for such Companion Loan) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or such portion thereof) (or such original Mortgage Note for the
related Companion Loans) to the Trustee or related Custodian (or to the related
Companion Loan Noteholders), or the delivery to the Trustee (or to the related
Companion Loan Noteholders) of a certificate of a Servicing Officer of the
Special Servicer stating that such Serviced Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that are
required to be deposited into the related Custodial Account pursuant to Section
3.04(a) or 3.04A(a), as applicable, have been or will be so deposited, or that
the related Mortgaged Property has become an REO Property, the Request for
Release shall be released by the Trustee or related Custodian to the Master
Servicer or the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period (but
no less than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee (and, in the case of a
Loan Group Mortgaged Property, the related Companion Loan Noteholders) of an
exigency) of the Special Servicer's request therefor, the Trustee shall execute
and deliver to the Special Servicer (or the Special Servicer may execute and
deliver in the name of the Trustee (on behalf of the Certificateholders and, in
the case of a Loan Group Mortgaged Property, also on behalf of the related
Companion Loan Noteholders) based on a limited power of attorney issued in favor
of the Special Servicer pursuant to Section 3.01(b)), in the form supplied to
the Trustee, any court pleadings, requests for trustee's sale or other documents
stated by the Special Servicer to be reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity or to defend any legal action or counterclaim filed against the Trust
Fund, the Master Servicer, the Special Servicer or the Companion Loan
Noteholders. Together with such documents or pleadings, the Special Servicer
shall deliver to the Trustee (and, in the case of a Loan Group Mortgaged
Property, the related Companion Loan Noteholders) a certificate of a Servicing
Officer requesting that such pleadings or documents be executed by the Trustee
and certifying as to the reason such documents or pleadings are required and
that the execution and delivery thereof by the Trustee (on behalf of the
Certificateholders and, in the case of a Loan Group Mortgaged Property, also on
behalf of the related Companion Loan Noteholders) will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale. Notwithstanding
anything contained herein to the contrary, neither the Master Servicer nor the
Special Servicer shall, without the Trustee's written consent: (i) initiate any
action, suit or proceeding solely under the Trustee's name without indicating
the Master Servicer's or Special Servicer's, as applicable, representative
capacity, or (ii) take any action with the intent to cause, and that actually
causes, the Trustee to be registered to do business in any state.
Section 3.11 Servicing Compensation; Payment of Expenses.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Loan (other than the Non-Serviced Companion Loans but including the
Non-Serviced Trust Loans), including each Specially Serviced Loan, and each REO
Loan. As to each Loan (other than the Non-Serviced Companion Loans but including
the Non-Serviced Trust Loans) and REO Loan, the Master Servicing Fee shall: (i)
accrue from time to time at the related Master Servicing Fee Rate on the same
principal amount as interest accrues from time to time on such Loan or is deemed
to accrue from time to time on such REO Loan; and (ii) be calculated on a 30/360
Basis (or, in the case of the Companion Loans and any related REO Loans, on an
Actual/360 Basis) (or, in the event that a Principal Prepayment in full or other
Liquidation Event shall occur with respect to any such Loan or REO Loan on a
date that is not a Due Date, on the basis of the actual number of days to elapse
from and including the most recently preceding related Due Date to but excluding
the date of such Principal Prepayment or Liquidation Event in a month consisting
of 30 days). The Master Servicing Fee with respect to any such Loan or REO Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned
but unpaid Master Servicing Fees shall be payable monthly, on a loan-by-loan
basis, from payments of interest on each such Loan and REO Revenues allocable as
interest on each such REO Loan. The Master Servicer shall be entitled to recover
unpaid Master Servicing Fees in respect of any such Loan or REO Loan out of that
portion of related Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds allocable as recoveries of interest, to the extent permitted by Section
3.05(a) or Section 3.05A(a), as applicable. The right to receive the Master
Servicing Fee may not be transferred in whole or in part except in connection
with the transfer of all of the Master Servicer's responsibilities and
obligations under this Agreement.
Additional servicing compensation in the form of (i) Net Default
Charges, charges for beneficiary statements or demands, amounts collected for
checks returned for insufficient funds, and any similar fees (excluding
Prepayment Premiums and Yield Maintenance Charges), in each case to the extent
actually paid by a Mortgagor with respect to any Serviced Loan and accrued
during the time that such Serviced Loan was not a Specially Serviced Loan, (ii)
100% of each modification fee or extension fee actually paid by a Mortgagor with
respect to a modification, consent, extension, waiver or amendment agreed to by
the Master Servicer pursuant to Section 3.21(c) (except that the Master Servicer
shall be entitled to only 50% of each modification fee or extension fee actually
paid by the Mortgagor with respect to a modification, consent, waiver or
amendment agreed to by the Master Servicer pursuant to this Agreement if the
approval or consent of the Special Servicer (or the Directing Holder with
respect to an extension of maturity granted pursuant to Section 3.21(c)) was
required in connection therewith) and 100% of any fee actually paid by a
Mortgagor in connection with a defeasance of a Serviced Loan as contemplated
under Section 3.21(k), and (iii) 50% of any and all assumption fees and 100% of
any and all assumption application fees up to $5,000 in connection with each
assumption, transfer or substitution and 50% of the excess, if any, of the
assumption application fees received with respect to each assumption, transfer
or substitution over $5,000, in each case, actually paid by a Mortgagor in
accordance with the related Loan documents, with respect to any agreement
regarding the transfer of a Mortgaged Property or any assumption or substitution
agreement entered into by the Master Servicer on behalf of the Trust (or, in the
case of a Loan Group, on behalf of the Trust and the related Companion Loan
Noteholders) pursuant to Section 3.08(a) or paid by a Mortgagor with respect to
any transfer of an interest in a Mortgagor pursuant to Section 3.08(a), shall be
retained by the Master Servicer or promptly paid to the Master Servicer by the
Special Servicer and such additional servicing compensation is not required to
be deposited in any Custodial Account. The Master Servicer shall also be
entitled to additional servicing compensation in the form of (i) Prepayment
Interest Excesses (except in the case of the Companion Loans); (ii) interest or
other income earned on deposits in the Custodial Accounts in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to each such account for each Collection Period); and (iii) to the
extent not required to be paid to any Mortgagor under applicable law, any
interest or other income earned on deposits in the Servicing Accounts, the
Reserve Accounts and the Defeasance Deposit Account maintained thereby (but only
to the extent of the Net Investment Earnings, if any, with respect to each such
account for each Collection Period).
(b) Except as provided in the last sentence of this paragraph, as
compensation for its activities hereunder, the Special Servicer shall be
entitled to receive the Special Servicing Fee with respect to each Specially
Serviced Loan and each REO Loan that was previously a Serviced Loan. With
respect to each such Specially Serviced Loan and REO Loan, for any calendar
month (or portion thereof), the Special Servicing Fee shall: (i) accrue from
time to time at the Special Servicing Fee Rate on the same principal amount as
interest accrues from time to time on such Loan or is deemed to accrue from time
to time on such REO Loan; and (ii) be calculated on a 30/360 Basis (or, in the
case of the Companion Loans, and in each case any related REO Loans, on an
Actual/360 Basis) (or, in the event that a Principal Prepayment in full or other
Liquidation Event shall occur with respect to any such Specially Serviced Loan
or REO Loan on a date that is not a Due Date, on the basis of the actual number
of days to elapse from and including the most recently preceding related Due
Date to but excluding the date of such Principal Prepayment or Liquidation
Event, in a month consisting of 30 days and, in the case of any other partial
period that does not run from one Due Date through and including the day
immediately preceding the next Due Date, on the basis of the actual number of
days in such period in a month consisting of 30 days). The Special Servicing Fee
with respect to any such Specially Serviced Loan or REO Loan shall cease to
accrue as of the date a Liquidation Event occurs in respect thereof or it
becomes a Corrected Loan. Earned but unpaid Special Servicing Fees shall be
payable monthly out of general collections on the Mortgage Loans and any REO
Properties (or, in the case of Special Servicing Fees in respect of a Serviced
Loan Group, first out of collections relating to such Loan Group or any related
REO Property and, if insufficient therefor, out of general collections on the
Mortgage Loans and REO Properties) on deposit in the appropriate Custodial
Account pursuant to Section 3.05(a) or Section 3.05A(a), as applicable.
As further compensation for its services hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Loan. As to each such Corrected Loan, the Workout Fee shall be payable
from, and shall be calculated by application of the Workout Fee Rate to, all
collections of principal, interest (other than Default Interest), Prepayment
Premiums and/or Yield Maintenance Charges received on such Loan for so long as
it remains a Corrected Loan; provided that no Workout Fee shall be payable from,
or based upon the receipt of, Liquidation Proceeds collected in connection with
the purchase of any such Specially Serviced Loan or REO Property by a Purchase
Option Holder pursuant to Section 3.19, by the Depositor, each Mortgage Loan
Seller, the Special Servicer, a Controlling Class Certificateholder or the
Master Servicer pursuant to Section 9.01, a Companion Loan Noteholder or its
designee pursuant to the Co-Lender Agreement, (or, in the case of the 000 Xxxxxx
Xxxxxx Loan Group, by the holders of the 000 Xxxxxx Xxxxxx Subordinate Companion
Loan and/or the Class OEA-B Majority Holder pursuant to the Co-Lender Agreement
for the 000 Xxxxxx Xxxxxx Loan Group) and within the time period provided in
such Co-Lender Agreement, by the Mortgage Loan Seller pursuant to Section
2.03(a), or by the holder of a related mezzanine loan pursuant to a purchase
right in connection with a Loan default as set forth in the related
intercreditor agreement, or out of any Condemnation Proceeds, or the repurchase
of a Companion Loan by the related mortgage loan seller pursuant to the mortgage
loan purchase agreement entered into in connection with the issuance of any
Companion Loan Securities. The Workout Fee with respect to any Corrected Loan
will cease to be payable if such Corrected Loan again becomes a Specially
Serviced Loan or if the related Mortgaged Property becomes an REO Property;
provided that a new Workout Fee will become payable if and when the particular
Serviced Loan again becomes a Corrected Loan. If the Special Servicer is
terminated or removed other than for cause (and other than as a result of an
Event of Default under Sections 7.01(a)(x), 7.01(a)(xi) or 7.01(a)(xii)) or
resigns in accordance with the first sentence of the first paragraph of Section
6.04, it shall retain the right to receive any and all Workout Fees payable in
respect of Serviced Loans that became Corrected Loans during the period that it
acted as Special Servicer and were still such at the time of such termination,
removal or resignation (and the successor Special Servicer shall not be entitled
to any portion of such Workout Fees), in each case until the Workout Fee for any
such Serviced Loan ceases to be payable in accordance with the preceding
sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive the Liquidation Fee with respect to
(i) each Specially Serviced Loan as to which it receives a full, partial or
discounted payoff, (ii) each Specially Serviced Mortgage Loan that was
repurchased by a Mortgage Loan Seller, and (iii) each Specially Serviced Loan
and REO Property as to which it receives Liquidation Proceeds, in each case,
subject to the provisos to the next sentence. As to each such Specially Serviced
Loan or REO Property, the Liquidation Fee shall be payable from, and shall be
calculated by application of the Liquidation Fee Rate to, such full, partial or
discounted payoff and/or Liquidation Proceeds (exclusive of any portion of such
payoff or proceeds that represents Default Interest); provided that no
Liquidation Fee shall be payable (i) with respect to any such Specially Serviced
Loan that becomes a Corrected Loan (unless it is subsequently liquidated in
connection with a subsequent event that causes it to become a Specially Serviced
Mortgage Loan and a Liquidation Fee would be payable in connection with such
liquidation) or (ii) from, or based upon the receipt of, Liquidation Proceeds
collected in connection with the purchase of any such Specially Serviced Loan or
REO Property by a Purchase Option Holder pursuant to Section 3.19, by the
Depositor, a Mortgage Loan Seller, the Special Servicer, a Controlling Class
Certificateholder or the Master Servicer pursuant to Section 9.01, by a
Companion Loan Noteholder (and in the case of the 000 Xxxxxx Xxxxxx Loan Group,
by the holders of the 000 Xxxxxx Xxxxxx Subordinate Companion Loan and/or the
Class OEA-B Majority Holder) or its designee pursuant to the related Co-Lender
Agreement and within the period specified in such Co-Lender Agreement, by a
Mortgage Loan Seller pursuant to Section 2.03(a) in connection with a Material
Document Defect or a Material Breach (within the applicable cure period
contained in Section 2.03 with respect to the Material Document Defect or
Material Breach, as applicable, that gave rise to the particular repurchase
obligation) or by the holder of a related mezzanine loan pursuant to a purchase
right in connection with a Loan default as set forth in the related
intercreditor agreement within 60 days after the purchase right is first
exercisable.
In the event that (i) the Special Servicer has been terminated or
resigns, and (ii) prior to such termination or resignation, a Specially Serviced
Loan was liquidated or modified pursuant to a plan of action submitted by the
Special Servicer and approved (or deemed approved) by the Controlling Class
Directing Holder, then in that event the terminated or resigned Special Servicer
shall be paid the related Workout Fee or Liquidation Fee, as applicable (and the
successor special servicer shall not be entitled to any portion of such Workout
Fees or Liquidation Fees).
Notwithstanding anything to the contrary herein, a Liquidation Fee
and a Workout Fee relating to the same Loan shall not be paid from the same
proceeds with respect to such Loan.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
The Special Servicer will not be entitled to any compensation with
respect to the Non-Serviced Loan Groups, which are serviced under the applicable
Lead PSA.
(c) Additional special servicing compensation in the form of (i) Net
Default Charges actually collected on the Mortgage Pool that accrued with
respect to a Specially Serviced Loan or an REO Loan, (ii) with respect to any
Specially Serviced Loan, 100% of any and all assumption application fees and
other applicable fees, actually paid by a Mortgagor in accordance with the
related Loan documents, with respect to any assumption or substitution agreement
entered into by the Special Servicer on behalf of the Trust (or, in the case of
a Serviced Loan Group, on behalf of the Trust and the related Companion Loan
Noteholders) pursuant to Section 3.08(b) or paid by a Mortgagor with respect to
any transfer of an interest in a Mortgagor pursuant to Section 3.08(b), (iii)
with respect to any Performing Serviced Loan, 50% of the excess, if any, of any
assumption application fees received by the Master Servicer with respect to each
assumption, transfer or substitution over $5,000, and 50% of any and all
assumption fees, in each case actually paid by the Mortgagor in accordance with
the related Loan documents with respect to any agreement regarding a transfer of
a Mortgaged Property or any assumption or substitution agreement entered into by
the Master Servicer on behalf of the Trust pursuant to Section 3.08(a) or paid
by the Mortgagor with respect to any transfer of an interest in a Mortgagor
pursuant to Section 3.08(a), (iv) any and all assumption fees, modification
fees, consent fees, extension fees and similar fees actually collected on the
Serviced Loans that are not otherwise payable to the Master Servicer as
additional servicing compensation pursuant to Section 3.11(a) and (v) 50% of
each modification fee or extension fee actually paid by the Mortgagor with
respect to a modification, consent, waiver or amendment agreed to by the Master
Servicer pursuant to this Agreement if the approval or consent of the Special
Servicer (or the Directing Holder with respect to an extension of maturity
granted pursuant to Section 3.21(c)) was required in connection therewith and
100% of any modification fee or extension fee and any other applicable fee that
is actually paid by the Mortgagor in connection with an extension of the
maturity date of a Performing Serviced Loan approved by the Special Servicer in
accordance with Section 3.21(d), shall be retained by the Special Servicer or
promptly paid to the Special Servicer by the Master Servicer, as the case may
be, and shall not be required to be deposited in any Custodial Account pursuant
to Section 3.04(a) or Section 3.04A(a). The Special Servicer shall also be
entitled to additional special servicing compensation in the form of interest or
other income earned on deposits in any of the REO Accounts, if established, in
accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to such account for each Collection Period).
(d) The Master Servicer and the Special Servicer shall each be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including payment of any amounts due
and owing to any of its Sub-Servicers and the premiums for any blanket policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of any of the
Custodial Accounts or, in the case of the Special Servicer, any of the REO
Accounts, and neither the Master Servicer nor the Special Servicer shall be
entitled to reimbursement for such expenses except as expressly provided in this
Agreement.
Section 3.12 Certain Matters Regarding Servicing Advances.
(a) If the Master Servicer or Special Servicer is required under any
provision of this Agreement to make a Servicing Advance, but neither does so
within 15 days after such Advance is required to be made, the Trustee shall, if
it has actual knowledge of such failure on the part of the Master Servicer or
Special Servicer, as the case may be, give written notice of such failure, as
applicable, to the Master Servicer or the Special Servicer. If such Servicing
Advance is not made by the Master Servicer or the Special Servicer, as
applicable, within three Business Days after such notice is given to the Master
Servicer or the Special Servicer, as applicable, then (subject to Section
3.12(d)) the Trustee shall make such Servicing Advance. If the Trustee fails to
make any Servicing Advance required to be made under this Agreement, then
(subject to Section 3.12(d)) the Fiscal Agent shall make such Servicing Advance
within one Business Day of such failure by the Trustee and, if so made, the
Trustee shall be deemed not to be in default under this Agreement.
(b) The Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, compounded annually, accrued on the amount of
each Servicing Advance made thereby (with its own funds) for so long as such
Servicing Advance is outstanding, such interest to be payable: (i) out of any
Default Charges on deposit in the Pool Custodial Account that were collected on
or in respect of the related Mortgage Loan during the same Collection Period in
which such Servicing Advance is reimbursed; and (ii) to the extent that such
Default Charges are insufficient, but not before the related Advance has been
reimbursed pursuant to this Agreement, out of general collections on the
Mortgage Loans and REO Properties on deposit in the Pool Custodial Account;
provided that, if such Servicing Advance was made with respect to a Serviced
Loan Group or a Loan Group Mortgaged Property (other than the Non-Serviced Loan
Groups), then such interest shall first be payable out of amounts on deposit in
the related Loan Group Custodial Account in accordance with clause (viii) of
Section 3.05A.
(c) The Master Servicer shall reimburse itself, the Special
Servicer, the Trustee or the Fiscal Agent, as appropriate and in accordance with
Section 3.03, Section 3.05(a) or Section 3.05A(a), as applicable, for any
Servicing Advance as soon as practicable after funds available for such purpose
are deposited in the related Custodial Account.
(d) Notwithstanding anything herein to the contrary, none of the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent shall be
required to make out of its own funds any Servicing Advance that would, if made,
constitute a Nonrecoverable Servicing Advance. The determination by either the
Master Servicer or the Special Servicer that it has made a Nonrecoverable
Servicing Advance or that any proposed Servicing Advance, if made, would
constitute a Nonrecoverable Servicing Advance, shall be made in accordance with
the Servicing Standard and shall be evidenced by an Officer's Certificate
delivered promptly to the Trustee and the Depositor (and, if affected thereby,
the related Companion Loan Noteholder (and, in the case of the 000 Xxxxxx Xxxxxx
Loan Group, the Holders of the Class OEA-B Certificates)), setting forth the
basis for such determination, together with a copy of any appraisal of the
related Mortgaged Property or REO Property, as the case may be (which appraisal
shall be an expense of the Trust, shall take into account the factors specified
in Section 3.19 and shall have been conducted by an Independent Appraiser in
accordance with the standards of the Appraisal Institute within the twelve
months preceding such determination of nonrecoverability), and further
accompanied by related Mortgagor operating statements and financial statements,
budgets and rent rolls of the related Mortgaged Property (to the extent
available and/or in the Master Servicer's or the Special Servicer's possession)
and any engineers' reports, environmental surveys or similar reports that the
Master Servicer or the Special Servicer may have obtained and that support such
determination. If the Master Servicer intends to obtain an appraisal in
connection with the foregoing, the Master Servicer shall so notify the Special
Servicer and consult with the Special Servicer regarding such appraisal. The
Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any
determination by the Master Servicer or the Special Servicer that a Servicing
Advance, if made, would be a Nonrecoverable Advance; provided, however, that if
the Master Servicer or the Special Servicer has failed to make a Servicing
Advance for reasons other than a determination by the Master Servicer or the
Special Servicer, as applicable, that such Servicing Advance would be a
Nonrecoverable Advance, the Trustee or the Fiscal Agent, as applicable, shall
make such Servicing Advance within the time periods required by Section 3.12(a)
unless the Trustee or the Fiscal Agent, in good faith, makes a determination
that such Servicing Advance would be a Nonrecoverable Advance. In addition, the
Master Servicer and Special Servicer shall consider Workout-Delayed
Reimbursement Amounts in respect of prior Servicing Advances on the applicable
Mortgage Loan that have not been repaid by the related Mortgagor for the
purposes of nonrecoverability determinations as if such amounts were
unreimbursed Servicing Advances.
(e) Notwithstanding anything set forth herein to the contrary, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Loan or an REO Property is involved) pay directly out of the Pool
Custodial Account or the related Loan Group Custodial Account, as applicable,
any servicing expense that, if advanced by the Master Servicer or the Special
Servicer, would constitute a Nonrecoverable Servicing Advance; provided that the
Master Servicer (or the Special Servicer, if a Specially Serviced Loan or an REO
Property is involved) has determined in accordance with the Servicing Standard
that making such payment, in the case of withdrawals from the Pool Custodial
Account, is in the best interests of the Certificateholders (as a collective
whole) or, in the case of a Custodial Account, is in the best interests of the
Certificateholders and, in the case of a Serviced Loan Group, the related
Companion Loan Noteholders (as a collective whole), as evidenced in each case by
an Officer's Certificate delivered promptly to the Trustee, the Depositor, the
Controlling Class Directing Holder and, if affected thereby, the applicable
Companion Loan Noteholder (and, in the case of the 000 Xxxxxx Xxxxxx Loan Group,
the Holders of the Class OEA-B Certificates), setting forth the basis for such
determination and accompanied by any information that such Person may have
obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
promptly delivered to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer. The Master Servicer may conclusively
rely on any information in this regard provided by the Special Servicer (if
other than the Master Servicer or an Affiliate thereof).
(f) Notwithstanding anything to the contrary in this Agreement, the
Master Servicer shall not waive any fees that would be due or partially due to
the Special Servicer without the Special Servicer's consent and the Special
Servicer shall not waive any fees that would be due or partially due to the
Master Servicer without the Master Servicer's consent.
Section 3.13 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable after the
related Serviced Loan becomes a Specially Serviced Loan and annually thereafter
for so long as the related Loan remains a Specially Serviced Loan, the cost of
which shall be paid by the Special Servicer and shall be reimbursable as a
Servicing Advance. In addition, the Special Servicer shall perform or cause to
be performed a physical inspection of each of the REO Properties at least once
per calendar year, the cost of which shall be paid by the Special Servicer and
shall be reimbursable as a Servicing Advance. Beginning in 2005, the Master
Servicer shall at its expense perform or cause to be performed a physical
inspection of each Mortgaged Property securing a Performing Serviced Loan: (i)
at least once every two calendar years in the case of Mortgaged Properties
securing Loans that have outstanding principal balances of (or Mortgaged
Properties having allocated loan amounts of) $2,000,000 or less; and (ii) at
least once every calendar year in the case of all other such Mortgaged
Properties; provided, that the Master Servicer will not be required to perform
or cause to be performed an inspection on a Mortgaged Property if such Mortgaged
Property has been inspected by the Master Servicer or the Special Servicer in
the preceding six months. The Master Servicer and the Special Servicer shall
each promptly prepare or cause to be prepared and deliver to the Trustee and
each other a written report of each such inspection performed by it that sets
forth in detail the condition of the Mortgaged Property and that specifies the
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Master Servicer or the Special Servicer, as applicable, is aware, (ii)
any change in the condition or value of the Mortgaged Property that the Master
Servicer or the Special Servicer, as applicable, in its reasonable, good faith
judgment, considers material, or (iii) any waste committed on the Mortgaged
Property. The Master Servicer and Special Servicer shall each forward copies of
any such inspection reports prepared by it to the Underwriters and the
Controlling Class Directing Holder upon request, subject to payment of a
reasonable fee.
(b) The Special Servicer, in the case of each Specially Serviced
Loan and each REO Loan that was previously a Serviced Loan, and the Master
Servicer, in the case of each Performing Serviced Loan, shall each, consistent
with the Servicing Standard, use reasonable efforts to obtain quarterly, annual
and other periodic operating statements and rent rolls with respect to each of
the related Mortgaged Properties and REO Properties. The Special Servicer shall,
promptly following receipt, deliver copies of the operating statements and rent
rolls received or obtained by it to the Master Servicer, and the Master Servicer
shall promptly deliver copies of the operating statements and rent rolls
received or obtained by it to the Trustee, the Special Servicer or any
Controlling Class Certificateholder, in each case upon request. In addition to
the foregoing and solely with respect to the Loan Groups, the Special Servicer
and the Master Servicer, as applicable, shall each, consistent with the
Servicing Standard, use reasonable efforts to obtain occupancy reports, sales
reports for retail tenants, 24-month rolling lease expiration schedules, reserve
balances and capital expenditure statements, as well as information as to
bankrupt tenants and tenants whose leases have expired and have not been
renewed. The Special Servicer shall, promptly following receipt, deliver copies
of the materials received or obtained by it pursuant to the foregoing sentence
to the Master Servicer, and the Master Servicer shall promptly deliver copies of
all such materials received or obtained by it pursuant to the foregoing sentence
and this sentence to the Trustee, the Special Servicer, any Controlling Class
Certificateholders and, in the case of the Loan Groups, to the related Companion
Loan Noteholders (and, in the case of the 000 Xxxxxx Xxxxxx Loan Group, the
Holders of the Class OEA-B Certificates), in each case upon request; provided
that, with respect to the Loan Groups, the Special Servicer or the Master
Servicer, as applicable, shall forward any financial statements received with
respect to the Loan Group Mortgaged Properties to the Trustee promptly upon
receipt thereof without the Trustee having to make a request, but only insofar
as such financial statements are to be included in an Annual Report on Form
10-K; and provided, further, that in the event that any losses are incurred by
the Depositor that are based upon or arise out of financial statements filed
with the Commission with respect to the Loan Group Mortgaged Properties, the
Trustee shall assign or subrogate, as appropriate, any rights it may have
against the related Mortgagor with respect to such financial statements or
against the applicable auditors under any independent auditors' report filed
together with such financial statements, to the Depositor and/or its designee,
to the extent such assignment is permitted by applicable law.
Within 30 days after receipt by the Master Servicer of any annual
operating statements with respect to any Mortgaged Property or REO Property, the
Master Servicer with respect to a Performing Serviced Loan and the Special
Servicer with respect to a Specially Serviced Loan shall prepare or update and
forward to the Trustee a CMSA NOI Adjustment Worksheet for such Mortgaged
Property or REO Property (with, upon request, the annual operating statements
attached thereto as an exhibit).
The Master Servicer with respect to a Performing Serviced Loan and
the Special Servicer with respect to a Specially Serviced Loan shall prepare and
maintain one CMSA Operating Statement Analysis Report for each Mortgaged
Property and REO Property. The CMSA Operating Statement Analysis Report for each
such Mortgaged Property and REO Property is to be updated by the Master Servicer
or Special Servicer, as applicable, within 30 days after its receipt of updated
operating statements for a Mortgaged Property or REO Property, as the case may
be. The Master Servicer or Special Servicer, as applicable, shall use the
"Normalized" column from the CMSA NOI Adjustment Worksheet for any such
Mortgaged Property or REO Property (other than the Mortgaged Property securing a
Non-Serviced Loan Group), as the case may be, to update and normalize the
corresponding annual year-end information in the CMSA Operating Statement
Analysis Report and shall use any annual operating statements and related data
fields received with respect to any such Mortgaged Property or REO Property
(other than the Mortgaged Property securing a Non-Serviced Loan Group), as the
case may be, to prepare the CMSA NOI Adjustment Worksheet for such property.
Copies of CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment
Worksheets are to be forwarded to the Trustee automatically until such time as a
Form 15 is filed with respect to the Trust pursuant to Section 8.15(c), and are
otherwise to be made available by the Master Servicer to the Trustee, the
Special Servicer or any Controlling Class Certificateholder, in each case upon
request.
(c) Not later than 2:00 p.m. (New York City time) on the second
Business Day prior to each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Loans and any REO Properties, providing
the required information as of the end of the preceding calendar month: (i) a
CMSA Property File; (ii) a CMSA Comparative Financial Status Report; and (iii) a
CMSA Special Servicer Loan File. Not later than 2:00 p.m. (New York City time)
on the third Business Day prior to each Distribution Date, the Special Servicer
shall deliver or cause to be delivered to the Master Servicer the following
reports with respect to the Specially Serviced Loans, any REO Properties and, to
the extent that the subject information relates to when they were Specially
Serviced Loans, any Corrected Loans: (i) a CMSA Delinquent Loan Status Report;
(ii) a Loan Payoff Notification Report; (iii) a CMSA Historical Liquidation
Report; (iv) a CMSA Historical Loan Modification and Corrected Mortgage Loan
Report; (v) a CMSA REO Status Report; and (vi) a CMSA Loan Level Reserve/LOC
Report.
(d) Not later than 2:00 p.m. (New York City time) on the first
Business Day prior to each Distribution Date, the Master Servicer shall deliver
or cause to be delivered to the Trustee, the Rating Agencies, the Special
Servicer and, upon request, any Controlling Class Certificateholder: (i) the
most recent CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, CMSA Historical Liquidation Report, CMSA REO Status Report and CMSA Loan
Level Reserve/LOC Report received from the Special Servicer pursuant to Section
3.13(c); (ii) the most recent CMSA Property File, CMSA Financial File, CMSA Loan
Set-up File (if modified), CMSA Delinquent Loan Status Report, CMSA Comparative
Financial Status Report and Loan Payoff Notification Report (in each case
combining the reports prepared by the Special Servicer and the Master Servicer);
and (iii) a CMSA Servicer Watch List with information that is current as of the
related Determination Date with respect to the Loans. The Master Servicer shall
include on one of such reports updated information as of the applicable
Determination Date regarding the amount of accrued and unpaid interest on
Advances in accordance with Section 3.12(b), 4.03(d) and/or 4.03A(d) such
information to be presented on a loan-by-loan basis.
If the Master Servicer determines, in its reasonable judgment, that
information regarding the Mortgage Loans and REO Properties (in addition to the
information otherwise required to be contained in the CMSA Investor Reporting
Package) should be disclosed to Certificateholders and Certificate Owners, then
it shall forward such information in the form of a Supplemental Report to the
Trustee in accordance with Section 4.02(a).
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.13(c) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer, and the Master
Servicer shall deliver to the Trustee, the Special Servicer and, upon request,
any Controlling Class Certificateholder or Loan Group Directing Holder the
reports set forth in Section 3.13(d) in an electronic format reasonably
acceptable to the Master Servicer and the Trustee. The Master Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer pursuant to Section 3.13(c). The Master Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the
applicable Lead Master Servicer pursuant to the applicable Lead PSA. The Trustee
may, absent manifest error, conclusively rely on the reports to be provided by
the Master Servicer pursuant to Section 3.13(d). In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.13(d), to the extent that such information is based on reports to be
provided by the Special Servicer pursuant to Section 3.13(c) and/or that such
reports are to be prepared and delivered by the Special Servicer pursuant to
Section 3.13(c), so long as the Master Servicer and the Special Servicer are not
the same Person or Affiliates, the Master Servicer shall have no obligation to
provide such information or reports until it has received such information or
reports from the Special Servicer, and the Master Servicer shall not be in
default hereunder due to a delay in providing the reports required by Section
3.13(d) caused by the Special Servicer's failure to timely provide any report
required under Section 3.13(c) of this Agreement.
(f) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.13, including
the calculations made therein, shall be done in accordance with CMSA standards
to the extent applicable thereto.
Section 3.13A. Delivery of Certain Reports to the Companion Loan
Noteholders and the Class OEA-B Certificateholders.
(a) The Master Servicer and the Special Servicer shall each promptly
prepare or cause to be prepared and deliver to each Companion Loan Noteholder
(and, in the case of the 000 Xxxxxx Xxxxxx Loan Group, to the Trustee who shall
make such report available to the Holders of the Class OEA-B Certificates) a
written report, prepared in the manner set forth in Section 3.13, of each
inspection performed by it with respect to the related Loan Group Mortgaged
Properties (other than the Mortgaged Property securing the Non-Serviced Loan
Groups, which are serviced under the applicable Lead PSA).
The Master Servicer shall promptly deliver to each Companion Loan
Noteholder (and, in the case of the 000 Xxxxxx Xxxxxx Loan Group, to the Trustee
who shall make such report available to the Holders of the Class OEA-B
Certificates): (i) copies of operating statements and rent rolls; (ii) upon
request, annual CMSA NOI Adjustment Worksheets (with annual operating statements
as exhibits); and (iii) annual CMSA Operating Statement Analysis Reports, in
each case prepared, received or obtained by it pursuant to Section 3.13 with
respect to the related Loan Group Mortgaged Properties (other than the Mortgaged
Property securing the Non-Serviced Loan Group, which are serviced under the
applicable Lead PSA).
The Master Servicer shall promptly deliver to any Subsequent Master
Servicer, upon request, such information in the Master Servicer's possession as
the Subsequent Master Servicer requests in order to determine whether a back-up
P&I Advance would be "nonrecoverable."
(b) If the Loans forming the Loan Groups constitute Specially
Serviced Loans, or if the Loan Group Mortgaged Properties have become REO
Properties, then each calendar month, not later than 2:00 p.m. (New York City
time) on the second Business Day prior to each Determination Date, the Special
Servicer shall deliver or cause to be delivered to the Master Servicer the
following reports with respect to the Loan Groups and/or the Loan Group
Mortgaged Properties, providing the required information as of the end of the
preceding calendar month: (i) a CMSA Property File (or similar report
satisfactory to the Master Servicer); and (ii) a CMSA Comparative Financial
Status Report (or similar report satisfactory to the Master Servicer). If the
Loans forming the Loan Groups constitute Specially Serviced Loans, or if the
Loan Group Mortgaged Properties have become REO Properties, then each calendar
month, not later than 2:00 p.m. (New York City time) on the second Business Day
prior to the Master Servicer Remittance Date in such month, the Special Servicer
shall deliver or cause to be delivered to the Master Servicer such of the
following reports as may be relevant with respect to the Loan Groups and/or the
Loan Group Mortgaged Properties: (i) a CMSA Delinquent Loan Status Report; (ii)
a Loan Payoff Notification Report, (iii) a CMSA Historical Liquidation Report;
(iv) a CMSA Historical Loan Modification and Corrected Mortgage Loan Report; and
(v) a CMSA REO Status Report.
(c) Not later than 2:00 p.m. (New York City time) on the Loan Group
Remittance Date, the Master Servicer shall, with respect to the Serviced Loan
Groups, prepare all Loan Group Servicing Reports as may be relevant and that are
not otherwise required to be prepared by the Special Servicer pursuant to
Section 3.13A(b). The Master Servicer shall include on one of such reports
updated information as of the applicable Determination Date regarding the amount
of accrued and unpaid interest on Advances in accordance with Section 3.12(b),
4.03(d) and/or 4.03A(d), such information to be presented on a loan-by-loan
basis.
(d) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.13A(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer. The Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer pursuant to Section 3.13A(b). In the case of information or
reports to be furnished by the Master Servicer to the applicable Companion Loan
Noteholder (and, in the case of the 000 Xxxxxx Xxxxxx Loan Group, to the Trustee
who shall make such reports available to the Holders of the Class OEA-B
Certificates) pursuant to Section 3.13B(a), to the extent that such information
is based on reports to be provided by the Special Servicer pursuant to Section
3.13A(b) and/or that such reports are to be prepared and delivered by the
Special Servicer pursuant to Section 3.13A(b), so long as the Master Servicer
and the Special Servicer are not the same Person or Affiliates, the Master
Servicer shall have no obligation to provide such information or reports until
it has received such information or reports from the Special Servicer, and the
Master Servicer shall not be in default hereunder due to a delay in providing
the reports required by Section 3.13B(a) caused by the Special Servicer's
failure to timely provide any report required under Section 3.13A(b) of this
Agreement.
(e) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.13A, including
the calculations made therein, shall be done in accordance with CMSA standards,
to the extent applicable thereto.
Section 3.13B. Statements to the Companion Loan Noteholders and the
Class OEA-B Certificateholders.
(a) On each Loan Group Remittance Date, the Master Servicer shall
forward to each Companion Loan Noteholder (other than the holders of the
Non-Serviced Pari Passu Companion Loans with respect to which such holders will
receive similar reports from the applicable Lead Master Servicer under the
applicable Lead PSA), and in the case of the 000 Xxxxxx Xxxxxx Loan Group, to
the Trustee who shall make such reports available to the Holders of the Class
OEA-B Certificates, all Loan Group Servicing Reports prepared with respect to
the related Loan Group, pursuant to Section 3.13A, during the calendar month in
which such applicable Master Servicer Remittance Date occurs.
(b) The Master Servicer shall only be obligated to deliver the
statements, reports and information contemplated by Section 3.13B(a) to the
extent it receives the necessary underlying information from the Special
Servicer and shall not be liable for its failure to deliver such statements,
reports and information on the prescribed due dates, to the extent caused by the
failure of the Special Servicer to deliver timely such underlying information.
Nothing herein shall obligate the Master Servicer or the Special Servicer to
violate any applicable law prohibiting disclosure of information with respect to
the related Mortgagor, and the failure of the Master Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereunder.
Absent manifest error of which it has actual knowledge, neither the
Master Servicer nor the Special Servicer shall be responsible for the accuracy
or completeness of any information supplied to it by a Mortgagor, the Depositor,
a Mortgage Loan Seller or third party that is included in any reports,
statements, materials or information prepared or provided by the Master Servicer
or the Special Servicer, as applicable, pursuant to this Agreement. Neither the
Master Servicer nor the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor, the
Depositor, a Mortgage Loan Seller, a third party or each other.
Section 3.14 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Rating Agencies, the Depositor, the Underwriters, the
Companion Loan Noteholders of a Serviced Companion Loan, and each other, on or
before April 30 of each year, beginning in 2005 (or, as to any such year, such
earlier date as is contemplated by the last sentence of this Section 3.14), an
Officer's Certificate (the "Annual Performance Certification") stating, as to
the signer thereof, that (i) a review of the activities of the Master Servicer
or the Special Servicer, as the case may be, during the preceding calendar year
(or, in the case of the first such certification, during the period from the
Closing Date to December 31, 2004, inclusive) and, in particular, of its
performance under this Agreement, has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Master Servicer or the Special Servicer, as the case may be, has fulfilled
all of its obligations under this Agreement in all material respects throughout
such preceding calendar year or portion thereof (or, if there has been a default
in the fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof), and (iii) the Master Servicer
or the Special Servicer, as the case may be, has received no notice regarding
the qualification, or challenging the status, of either REMIC Pool or any Loan
REMIC as a REMIC or of the Grantor Trust as a "grantor trust," from the IRS or
any other governmental agency or body (or, if it has received any such notice,
specifying the details thereof). Notwithstanding the timing provided for in the
first sentence of this paragraph, unless the Trustee (with respect to the Trust)
and each Subsequent Trustee (with respect to a Companion Loan Noteholder that is
a trust established in connection with the issuance of Companion Loan
Securities) have, in accordance with the Exchange Act and the rules and
regulations promulgated thereunder, filed a Form 15 with respect to the
applicable trust suspending all reporting requirements under the Exchange Act,
the Annual Performance Certification to be delivered by each of the Master
Servicer and the Special Servicer for any calendar year, shall, with respect to
the trust that has not filed such Form 15, be delivered on or before March 20 of
the following year, and if March 20 is not a Business Day, then the preceding
Business Day; and the Master Servicer and the Special Servicer are hereby
notified that the Depositor is required to file a Form 10-K with the Commission
in respect of the Trust covering calendar year 2004. Any Officer's Certificate
delivered to a Companion Loan Noteholder pursuant to this Section 3.14 shall be
limited to the servicing of the related Serviced Loan Group.
Section 3.15 Reports by Independent Public Accountants.
On or before April 30 of each year, beginning in 2005 (or, as to any
such year, such earlier date as is contemplated by the last sentence of this
paragraph), each of the Master Servicer and the Special Servicer at its expense
shall cause a firm of independent public accountants (which may also render
other services to the Master Servicer or the Special Servicer) that is a member
of the American Institute of Certified Public Accountants to furnish a statement
(the "Annual Accountants' Report") to the Trustee, the Rating Agencies, the
Depositor, the Underwriters, the Companion Loan Noteholders, and each other, to
the effect that (i) such firm has obtained a letter of representation regarding
certain matters from the management of the Master Servicer or the Special
Servicer, as applicable, which includes an assertion that the Master Servicer or
the Special Servicer, as applicable, has complied with certain minimum mortgage
loan servicing standards (to the extent applicable to commercial and multifamily
mortgage loans), identified in the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America,
with respect to the servicing of commercial and multifamily mortgage loans
during the most recently completed calendar year and (ii) on the basis of an
examination conducted by such firm in accordance with standards established by
the American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of commercial and
multifamily mortgage loans by sub-servicers, upon comparable reports of firms of
independent certified public accountants rendered (within one year of such
report) on the basis of examinations conducted in accordance with the same
standards with respect to those sub-servicers. Notwithstanding the timing
provided for in the first sentence of this paragraph, unless the Trustee (with
respect to the Trust) and each Subsequent Trustee (with respect to a Companion
Loan Noteholder that is a trust established in connection with the issuance of
Companion Loan Securities) have, in accordance with the Exchange Act and the
rules and regulations promulgated thereunder, filed a Form 15 with respect to
the applicable trust suspending all reporting requirements under the Exchange
Act), the Annual Accountants' Report to be delivered on behalf of each of the
Master Servicer and the Special Servicer for any calendar year, shall, with
respect to the trust that has not filed such Form 15, be delivered on or before
March 20 of such following year, and if March 20 is not a Business Day, then the
preceding Business Day; and the Master Servicer and the Special Servicer are
hereby notified that the Depositor is required to file a Form 10-K with the
Commission in respect of the Trust covering calendar year 2004.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
reports delivered pursuant to this Section 3.15 to requirements imposed by the
Commission on the Depositor in connection with the Depositor's reporting
requirements in respect of the Trust Fund pursuant to the Exchange Act, provided
that the Master Servicer and Special Servicer shall each be entitled to charge
the Depositor for any reasonable additional costs and expenses incurred in
affording the Depositor such cooperation.
Section 3.16 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Underwriters, the Rating Agencies, the Depositor, any
Certificateholder, the Companion Loan Noteholders and any Certificate Owner
(identified as such to the reasonable satisfaction of the Master Servicer or the
Special Servicer, as the case may be), and to the OTS, the FDIC and any other
banking or insurance regulatory authority that may exercise authority over any
Certificateholder, Certificate Owner (identified as such to the reasonable
satisfaction of the Master Servicer or the Special Servicer, as the case may be)
or Companion Loan Noteholder, access to any records regarding the Serviced Loans
and the servicing thereof within its control (which access shall be limited, in
the case of the Companion Loan Noteholders or any regulatory authority seeking
such access in respect of the Companion Loan Noteholders, to records relating to
the Companion Loans), except to the extent it is prohibited from doing so by
applicable law or contract or to the extent such information is subject to a
privilege under applicable law to be asserted on behalf of the
Certificateholders or the Companion Loan Noteholders. Such access shall be
afforded only upon reasonable prior written request and during normal business
hours at the offices of the Master Servicer or the Special Servicer, as the case
may be, designated by it.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder, a Certificate Owner, the
Companion Loan Noteholders or any regulatory authority that may exercise
authority over a Certificateholder, a Certificate Owner or Companion Loan
Noteholder, the Master Servicer and the Special Servicer may each require
payment from such Certificateholder, a Certificate Owner or Companion Loan
Noteholder of a sum sufficient to cover the reasonable costs and expenses of
providing such information or access, including copy charges and reasonable fees
for employee time and for space; provided that no charge may be made if such
information or access was required to be given or made available under
applicable law. In connection with providing Certificateholders and Certificate
Owners access to the information described in the preceding paragraph, the
Master Servicer and the Special Servicer shall require (prior to affording such
access) a written confirmation executed by the requesting Person substantially
in such form as may be reasonably acceptable to the Master Servicer or the
Special Servicer, as the case may be, generally to the effect that such Person
is a Holder of Certificates or a beneficial holder of Book-Entry Certificates
and will keep such information confidential.
Upon the reasonable request of any Certificateholder, or any
Certificate Owner identified to the Master Servicer to the Master Servicer's
reasonable satisfaction, the Master Servicer may provide (or forward
electronically) (at the expense of such Certificateholder or Certificate Owner)
copies of any operating statements, rent rolls and financial statements obtained
by the Master Servicer or the Special Servicer; provided that, in connection
therewith, the Master Servicer shall require a written confirmation executed by
the requesting Person substantially in such form as may be reasonably acceptable
to the Master Servicer, generally to the effect that such Person is a Holder of
Certificates or a beneficial holder of Book-Entry Certificates and will keep
such information confidential.
No less often than on a monthly basis, upon reasonable prior notice
and during normal business hours, the Master Servicer shall, without charge,
make a knowledgeable Servicing Officer available to answer questions from the
Controlling Class Directing Holder or any Companion Loan Noteholder (or Holder
of the Class OEA-B Certificates), if any, regarding the performance and
servicing of the Mortgage Loans and/of REO Properties for which the Master
Servicer is responsible. Except as provided in the following sentence, in
connection with providing the Controlling Class Directing Holder or a Companion
Loan Noteholder (or Holder of the Class OEA-B Certificates), as applicable, with
the information described in the preceding sentence, the Master Servicer shall
require (prior to providing such information for the first time to such
Controlling Class Directing Holder or Companion Loan Noteholder (or Holder of
the Class OEA-B Certificates)) a written confirmation executed by the
Controlling Class Directing Holder or Companion Loan Noteholder (or Holder of
the Class OEA-B Certificates), as applicable, in the form of Exhibit N attached
hereto, generally to the effect that such Person will keep any information
received by it from time to time pursuant to this Agreement confidential. In the
case of the initial Controlling Class Directing Holder, upon its acquisition of
the Class P Certificates, such entity shall be deemed to have agreed to keep all
non-public information received by it in such capacity from time to time
pursuant to this Agreement confidential, subject to applicable law.
Section 3.17 Title to REO Property; REO Accounts.
(a) If title to any Mortgaged Property with respect to a Serviced
Mortgage Loan is acquired, the deed or certificate of sale shall be issued to
the Trustee or its nominee on behalf of the Certificateholders and, in the case
of a Loan Group Mortgaged Property, on behalf of the related Companion Loan
Noteholders. If, pursuant to Section 3.09(b), the Special Servicer formed or
caused to be formed, at the expense of the Trust, a single member limited
liability company (of which the Trust is the sole member) for the purpose of
taking title to one or more REO Properties pursuant to this Agreement, then
(subject to the interests of any affected Companion Loan Noteholder) the deed or
certificate of sale with respect to any such REO Property shall be issued to
such single member limited liability company. The limited liability company
shall be a manager-managed limited liability company, with the Special Servicer
to serve as the initial manager to manage the property of the limited liability
company, including any applicable REO Property, in accordance with the terms of
this Agreement as if such property was held directly in the name of the Trust or
Trustee under this Agreement.
The Special Servicer, on behalf of the Trust Fund and, any affected
Companion Loan Noteholder, shall sell any REO Property by the end of the third
calendar year following the calendar year in which the Lower-Tier REMIC acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of the Code,
unless the Special Servicer either (i) applies, more than 60 days prior to the
end of such third succeeding year, for and is granted an extension of time (an
"REO Extension") by the IRS to sell such REO Property or (ii) obtains for the
Trustee an Opinion of Counsel, addressed to the Trustee, the Special Servicer
and the Master Servicer, to the effect that the holding by the Lower-Tier REMIC
or related Loan REMIC of such REO Property subsequent to the end of such third
succeeding year will not result in the imposition of taxes on "prohibited
transactions" (as defined in Section 860F of the Code) of either REMIC Pool or
cause either REMIC Pool or any Loan REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding. If the Special Servicer is granted
the REO Extension contemplated by clause (i) of the immediately preceding
sentence or obtains the Opinion of Counsel contemplated by clause (ii) of the
immediately preceding sentence, the Special Servicer shall sell the subject REO
Property within such extended period as is permitted by such REO Extension or
such Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its obtaining the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, or for the
creation of and the operating of a single member limited liability company,
shall be covered by, and reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur in
respect of any Mortgaged Property (other than any Loan Group Mortgaged
Property), the Special Servicer shall establish and maintain one or more
accounts (collectively, the "Pool REO Account"), held on behalf of the Trustee
in trust for the benefit of the Certificateholders, for the retention of
revenues and other proceeds derived from each REO Property (other than any Loan
Group REO Properties). If such REO Acquisition occurs with respect to the Loan
Group Mortgaged Properties, the Special Servicer shall establish an REO Account
solely with respect to each such property (each, a "Loan Group REO Account"), to
be held for the benefit of the Certificateholders and the applicable Companion
Loan Noteholder. The Pool REO Account and each Loan Group REO Account shall each
be an Eligible Account. The Special Servicer shall deposit, or cause to be
deposited, in the related REO Account, upon receipt, all REO Revenues, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds received in respect of
any REO Property. Funds in an REO Account may be invested in Permitted
Investments in accordance with Section 3.06. The Special Servicer shall be
entitled to make withdrawals from an REO Account to pay itself, as additional
special servicing compensation in accordance with Section 3.11(c), interest and
investment income earned in respect of amounts held in such REO Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to such REO Account for any Collection Period). The
Special Servicer shall give notice to the Trustee and the Master Servicer of the
location of each REO Account, and shall give notice to the related Companion
Loan Noteholders of the location of any related Loan Group REO Account, in each
case when first established and of the new location of any such REO Account
prior to any change thereof.
(c) The Special Servicer shall withdraw from the related REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. On the Business Day following
each Determination Date, the Special Servicer shall withdraw from each REO
Account and deposit into the corresponding Custodial Account (or deliver to the
Master Servicer or such other Person as may be designated by the Master Servicer
for deposit into the corresponding Custodial Account) the aggregate of all
amounts received in respect of each REO Property during the Collection Period
ending on such Determination Date, net of any withdrawals made out of such
amounts pursuant to the preceding sentence; provided that the Special Servicer
may retain in an REO Account such portion of proceeds and collections in respect
of any related REO Property as may be necessary to maintain a reserve of
sufficient funds for the proper operation, management, leasing, maintenance and
disposition of such REO Property (including the creation of a reasonable reserve
for repairs, replacements, necessary capital replacements and other related
expenses), such reserve not to exceed an amount sufficient to cover such items
to be incurred during the following twelve-month period. For purposes of the
foregoing, the Pool REO Account and applicable Loan Group REO Account correspond
to the Pool Custodial Account and the applicable Loan Group Custodial Account,
respectively.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, each REO Account pursuant to Section 3.17(b) or (c).
The Special Servicer shall provide the Master Servicer any information with
respect to each REO Account as is reasonably requested by the Master Servicer.
Section 3.18 Management of REO Property.
(a) Prior to the acquisition by it of title to a Mortgaged Property
with respect to a Serviced 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 Fund. If the Special
Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged
Property as REO Property would be subject to tax as "net income from
foreclosure property" within the meaning of the REMIC Provisions (such tax
referred to herein as an "REO Tax"), then such Mortgaged Property may be
Directly Operated by the Special Servicer (other than the holding of such
Mortgaged Property for sale to customers in the ordinary course of trade
or business or the performance of any construction work thereon) as REO
Property;
(ii) Directly Operating such Mortgaged Property as REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such
property would not result in income subject to an REO Tax, then the
Special Servicer may (provided, that in the good faith and reasonable
judgment of the Special Servicer, it is commercially reasonable) acquire
such Mortgaged Property as REO Property and so lease or operate such REO
Property; or
(iii) It is reasonable to believe that Directly Operating such
Mortgaged Property as REO Property could result in income subject to an
REO Tax and that no commercially reasonable means exists to operate such
property as REO Property without the Trust Fund incurring or possibly
incurring an REO Tax on income from such property, the Special Servicer
shall deliver to the Tax Administrator, in writing, a proposed plan (the
"Proposed Plan") to manage such property as REO Property. Such plan shall
include potential sources of income, and, to the extent reasonably
possible, estimates of the amount of income from each such source. Upon
request of the Special Servicer, the Tax Administrator shall advise the
Special Servicer of the Tax Administrator's federal income tax reporting
position with respect to the various sources of income that the Trust Fund
would derive under the Proposed Plan. After receiving the information
described in the preceding sentence from the Tax Administrator, the
Special Servicer shall either (A) implement the Proposed Plan (after
acquiring the respective Mortgaged Property as REO Property), with any
amendments required to be made thereto as a result of the Tax
Administrator's tax reporting position or (B) manage and operate such
property in a manner that would not result in the imposition of an REO Tax
on income derived from such property.
The Special Servicer's decision as to how each REO Property, shall
be managed and operated shall be based on the Servicing Standard and, further,
based on the good faith and reasonable judgment of the Special Servicer as to
which means would be in the best interest of the Certificateholders (or in the
case of a Loan Group REO Property, in the best interest of the
Certificateholders and the applicable Companion Loan Noteholders (as a
collective whole)) by maximizing the net after-tax REO Revenues received by the
Trust Fund with respect to such property without materially and adversely
affecting the Special Servicer's ability to promptly sell the REO Property in
accordance with this Agreement and, to the extent consistent with the foregoing,
in accordance with the Servicing Standard. In connection with performing their
respective duties under this Section 3.18(a), both the Special Servicer and the
Tax Administrator may consult with counsel and tax accountants, the reasonable
cost of which consultation shall be covered by, and be reimbursable as, a
Servicing Advance to be made by the Special Servicer.
(b) If title to any REO Property, is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit of
the Certificateholders (or in the case of a Loan Group REO Property, in the best
interest of the Certificateholders and the applicable Companion Loan Noteholders
(as a collective whole)) solely for the purpose of its prompt disposition and
sale in a manner that does not and will not: (i) cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code for purposes of Section 860D(a) of the Code; or (ii) except as
contemplated by Section 3.18(a), either result in the receipt by either REMIC
Pool or any Loan REMIC of any "income from non-permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC
Event. Subject to the foregoing, however, the Special Servicer shall have full
power and authority to do any and all things in connection therewith as are
consistent with the Servicing Standard and, consistent therewith, shall withdraw
from the applicable REO Account, to the extent of amounts on deposit therein
with respect to such REO Property, funds necessary for the proper operation,
management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the applicable REO Account
in respect of any REO Property are insufficient for the purposes set forth in
the preceding sentence with respect to such REO Property, the Special Servicer
shall make Servicing Advances in such amounts as are necessary for such purposes
unless the Special Servicer determines, in accordance with the Servicing
Standard, that such payment would be a Nonrecoverable Advance; provided,
however, that the Special Servicer may make any such Servicing Advance without
regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings. The Special
Servicer shall notify the Master Servicer if it shall have made any such
Servicing Advance within the previous 30-day period.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not, with respect to any REO Property:
(i) enter into, renew or extend any New Lease with respect to any
REO Property, if the New Lease, by its terms would give rise to any income
that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate any Mortgaged Property as REO
Property on any date more than 90 days after the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Special Servicer as a Servicing
Advance) to the effect that such action would not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time
that it is held by the Lower-Tier REMIC, in which case the Special Servicer may
take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may, and if so required to prevent the REO
Property from failing to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code, shall contract with any Independent Contractor
for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund or with respect to any Loan Group REO Property
such fees shall be netted out of collections on such Loan Group REO
Property prior to their being remitted to the Special Servicer) shall be
reasonable and customary in consideration of the nature and locality of
such REO Property;
(iii) except as permitted under Section 3.18(a), any such contract
shall require, or shall be administered to require, that the Independent
Contractor, in a timely manner, (A) pay all costs and expenses incurred in
connection with the operation and management of such REO Property,
including those listed in Section 3.18(b) above, and (B) except to the
extent that such revenues are derived from any services rendered by the
Independent Contractor to tenants of such REO Property that are not
customarily furnished or rendered in connection with the rental of real
property (within the meaning of Treasury Regulations Section
1.856-4(b)(5)), remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.18(d) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of such
REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations under Section 3.17 and this Section 3.18 for indemnification of
the Special Servicer by any such Independent Contractor, and nothing in this
Agreement shall be deemed to limit or modify such indemnification. No agreement
entered into pursuant to this Section 3.18(d) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.23.
Section 3.19 Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property only (i) on the terms and subject to the conditions set forth in this
Section 3.19, (ii) as otherwise expressly provided in or contemplated by
Sections 2.03(a) and 9.01 of this Agreement, (iii) in the case of the Loan
Groups, subject to the requirements of, and Companion Loan Noteholder rights set
forth in, in the related Co-Lender Agreement, and (iv) in the case of a Mortgage
Loan with a related mezzanine loan, in connection with a Loan default as set
forth in the related intercreditor agreement.
(b) Within five Business Days after any Serviced Mortgage Loan has
become a Specially Serviced Mortgage Loan, the Special Servicer shall give
notice of such event to each Holder of a Certificate of the Controlling Class
and to the Trustee. The Special Servicer, any single Holder or any group of
Certificateholders evidencing a majority of the Voting Rights allocated to the
Controlling Class and any assignees (other than an assignee whose purchase of
such Specially Serviced Mortgage Loan would violate the terms of any related
mezzanine loan intercreditor agreement or Co-Lender Agreement) of the foregoing
parties (collectively, the "Purchase Option Holders") shall each have the option
to purchase such Specially Serviced Mortgage Loan at a cash price that is at
least equal to the Purchase Price. In addition, if such Specially Serviced
Mortgage Loan is part of a Loan Group as to which there is a Pari Passu
Companion Loan that has been securitized, the Special Servicer shall also send a
copy of the notice described above to the parties under the related pooling and
servicing agreement that have the equivalent rights as the Purchase Option
Holders under this Agreement.
(c) If none of the Purchase Option Holders exercises its option to
purchase any Specially Serviced Mortgage Loan as described in subsection (b)
above, then any single Holder or any group of Certificateholders evidencing a
majority of the Voting Rights allocated to the Controlling Class (other than an
assignee whose purchase of such Specially Serviced Mortgage Loan would violate
the terms of any related mezzanine loan intercreditor agreement or co-lender
agreement) will also have the option to purchase that Specially Serviced
Mortgage Loan at a price equal to the fair value of such Specially Serviced
Mortgage Loan (the "FV Price"). The Holders of a majority of the Voting Rights
allocated to the Controlling Class will have the exclusive option to purchase
such Specially Serviced Mortgage Loan at the FV Price for a period of 60 days
after receipt of notice from the Special Servicer pursuant to Section 3.19(b)
above. After the expiration of such 60-day period, the Special Servicer shall
have the exclusive right to exercise the option to purchase such Specially
Serviced Mortgage Loan at the FV Price for a 30-day period. If such Specially
Serviced Mortgage Loan has not been purchased by the Special Servicer during
such 30-day period, the option to purchase such Specially Serviced Mortgage Loan
at its FV Price may be exercised by either the Special Servicer or the Holders
of Certificates representing a majority of the Voting Rights allocated to the
Controlling Class, except that prior to any purchase by the Special Servicer,
the Special Servicer shall give 15 days prior written notice of its intent to
exercise such option to such Certificateholders and such Certificateholders
shall have a right of first refusal to purchase such Specially Serviced Mortgage
Loan during such 15-day period.
Upon receipt of a request from any Purchase Option Holder to
determine the FV Price in contemplation of its intention to exercise its option
to purchase a Specially Serviced Mortgage Loan at a price that is below the
Purchase Price, the Special Servicer shall promptly obtain an MAI appraisal of
the related Mortgaged Property by an Independent Appraiser (unless such an
appraisal was obtained within one year of such date and the Special Servicer has
no knowledge of any circumstances that would materially affect the validity of
such appraisal). Promptly after obtaining such appraisal, the Special Servicer
shall determine the FV Price in accordance with the Servicing Standard and the
provisions of subsection (j) below. Promptly after determining the FV Price, the
Special Servicer shall report such FV Price to the Trustee and each Purchase
Option Holder.
With respect to any Serviced Loan Group, the Purchase Option Holders
will only have the right to purchase the related Loan Group Trust Mortgage Loan
and with respect to 000 Xxxxxx Xxxxxx Loan Group, will not have the right to
purchase the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan. With respect to each such
Specially Serviced Mortgage Loan that is part of a Loan Group as to which there
is a Pari Passu Companion Loan that has been securitized, the Special Servicer
shall also send a copy of the notice containing the FV Price described above to
the parties under the related pooling and servicing agreement that have the
equivalent rights as the Purchase Option Holders under this Agreement.
(d) With respect to each of the Non-Serviced Trust Loans:
(i) in the case of the 000 Xxxx Xxxxxx Xxxxx Xxxx, Xxxxx Fargo Tower
Trust Loan and the 1801 K Street Trust Loan, the Special Servicer shall
follow all of the provisions of this Section 3.19, except that the Special
Servicer shall not be required to determine the FV Price but rather shall
use the "FV Price" determined by the GCCFC C2 Special Servicer under the
GCCFC C2 PSA; and
(ii) in the case of the Water Tower Place Trust Loan, the DDR
Portfolio Loan. and the 5 Houston Center Trust Loan, this Section 3.19
shall not be applicable, and any rights of any Persons to exercise its
option to purchase such Loan Group Trust Mortgage Loans shall be
determined in accordance with the terms of the related Lead PSA and the
related Co-Lender Agreement by the parties specified therein (and the
Trust shall sell such Loan Group Trust Mortgage Loan in compliance with
such terms). Any proceeds from such the sale of the Water Tower Place
Trust Loan, the DDR Portfolio Loan, or the 5 Houston Center Trust Loan
pursuant to the exercise of such option shall be treated for purposes of
this Agreement in the same manner as funds received in connection with the
sale of any Serviced Loan Group Trust Mortgage Loan in accordance with the
provisions of this Section 3.19.
(e) Any Purchase Option Holder shall be required to purchase the
subject Specially Serviced Mortgage Loan within ten Business Days of notice of
its intent to exercise its purchase option.
(f) If none of the Purchase Option Holders have exercised their
option to purchase a Specially Serviced Mortgage Loan under this Section 3.19
prior to the expiration of 120 days from the Special Servicer's most recent
determination of the FV Price and thereafter receives a request from a Purchase
Option Holder for an updated FV Price, or the Special Servicer receives notice
that a Purchase Option Holder intends to exercise its purchase option, the
Special Servicer shall be required to recalculate the FV Price (with no
presumption that such FV Price should be reduced on account of the lack of a
prior purchase of such Specially Serviced Mortgage Loan). In connection with
such recalculation, the Special Servicer may obtain an updated Appraisal if it
determines that market conditions or conditions at the mortgaged property
warrant an updated Appraisal. In addition, the Special Servicer shall
recalculate the FV Price of any Mortgage Loan if there has been a material
change in circumstances of which the Special Servicer is aware or the Special
Servicer has received new information, either of which has a material effect on
the fair value.
(g) If the party exercising the purchase option at the FV Price for
any Specially Serviced Mortgage Loan is the Special Servicer or an Affiliate
thereof, the Trustee shall verify that the FV Price is at least equal to the
fair value of such Mortgage Loan. In determining whether the FV Price is at
least equal to the fair value of such Mortgage Loan the Trustee will be
permitted to conclusively rely on an appraisal obtained by the Trustee from an
Independent Appraiser at the time it is required to verify the FV Price and/or
the opinion of an Independent expert in real estate matters (including the
Master Servicer) with at least 5 years' experience in valuing or investing in
loans, similar to such Mortgage Loan, that has been selected by the Trustee with
reasonable care at the expense of the Trust Fund.
(h) Any Purchase Option Holder may, once such option is exercisable,
assign its purchase option with respect to any Specially Serviced Mortgage Loan
to a third party other than another Purchase Option Holder or any Person whose
purchase of such Specially Serviced Mortgage Loan would violate any restrictions
contained in any mezzanine intercreditor agreement or any Co-Lender Agreement
and upon such assignment such third party shall have all of the rights that had
been granted to the Purchase Option Holder hereunder in respect of the purchase
option. Such assignment shall only be effective upon written notice (together
with a copy of the executed assignment and assumption agreement) being delivered
to the Trustee, the Master Servicer and the Special Servicer.
(i) In determining the FV Price for any Specially Serviced Mortgage
Loan, the Special Servicer may take into account, among other factors, the
results of any appraisal or updated appraisal that it or the Master Servicer may
have obtained in accordance with this Agreement within the prior twelve months;
the opinions on fair value expressed by Independent investors in mortgage loans
comparable to the subject Specially Serviced Mortgage Loan; the period and
amount of any delinquency on the subject Specially Serviced Mortgage Loan; the
physical condition of the related Mortgaged Property; the state of the local
economy; and the expected recoveries from the subject Specially Serviced
Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure
strategy instead of selling such Mortgage Loan to a Purchase Option Holder.
(j) The purchase option for any Specially Serviced Mortgage Loan
pursuant to this Section 3.19 shall terminate, and shall not be exercisable as
set forth in subsections (b) and (c) above (or if exercised, but the purchase of
the subject Mortgage Loan has not yet occurred, shall terminate and be of no
further force or effect) if and when (i) such Specially Serviced Mortgage Loan
has become a Corrected Loan, (ii) the related Mortgaged Property has become an
REO Property or (iii) a Final Recovery Determination has been made with respect
to such Specially Serviced Mortgage Loan.
(k) Until such time as a Specially Serviced Mortgage Loan is
purchased by a Purchase Option Holder in accordance with this Section 3.19, the
Special Servicer shall continue to pursue all of the other resolution options
available to it with respect to the Specially Serviced Mortgage Loan in
accordance with the Servicing Standard.
(l) Notwithstanding anything to the contrary herein, the holders of
the related Companion Loan (and, in the case of the 000 Xxxxxx Xxxxxx Loan
Group, the holder of the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan and/or the
holder of the 000 Xxxxxx Xxxxxx Subordinate Companion Loan) shall be entitled to
purchase the related Loan Group Trust Mortgage Loans in accordance with the
terms and conditions set forth in the related Co-Lender Agreement, even after it
has been purchased out of the Trust Fund pursuant to this Section 3.19. The
rights of the Trust as holder of the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan to
purchase the 000 Xxxxxx Xxxxxx Pooled Trust Loan are hereby assigned to the
Class OEA-B Majority Holder; provided that the Class OEA-B Majority Holder may
exercise such rights only in its individual capacity and not on behalf of the
Trust. The Master Servicer or the Special Servicer, as applicable, shall
determine the price to be paid in accordance with the terms of the related
Co-Lender Agreement in connection with any such purchase and shall provide such
notices to the appropriate Companion Loan Noteholders (and, in the case of the
000 Xxxxxx Xxxxxx Loan Group, the Holders of the Class OEA-B Certificates) as
are required by the related Co-Lender Agreement in connection with each such
holders' purchase rights.
(m) Any purchase of a Specially Serviced Mortgage Loan that is
purchased pursuant to this Section 3.19 will remain subject to the cure and
purchase rights of, in each case if applicable, the related Companion Loan
Noteholders (and, in the case of the 000 Xxxxxx Xxxxxx Loan Group, the holder of
the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan (exercisable by the Class OEA-B
Majority Holder) and/or the holder of the 000 Xxxxxx Xxxxxx Subordinate
Companion Loan) as set forth in the related Co-Lender Agreement and any holder
of a related mezzanine loan in connection with a Loan default as set forth in
the related intercreditor agreement.
(n) The Special Servicer shall use its best efforts to solicit bids
for each REO Property in such manner that is in accordance with the Servicing
Standard and that is within the time period provided for by Section 3.17(a).
Subject to Section 6.11, the Special Servicer shall accept the first (and, if
multiple bids are received contemporaneously or subsequently, the highest) cash
bid received from any Person that constitutes a fair price for such REO
Property. If the Special Servicer reasonably believes that it will be unable to
realize a fair price for any REO Property within the time constraints imposed by
Section 3.17(a), then (subject to Section 6.11) the Special Servicer shall
dispose of such REO Property upon such terms and conditions as the Special
Servicer shall deem necessary and desirable to maximize the recovery thereon
under the circumstances and, in connection therewith, shall accept the highest
outstanding cash bid, regardless of from whom received.
(o) The Special Servicer shall give the Trustee and the Depositor
prior written notice of its intention to sell any REO Property pursuant to this
Section 3.19.
(p) No Interested Person shall be obligated to submit a bid to
purchase any REO Property, and notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates may
bid for or purchase any REO Property pursuant hereto.
(q) Whether any cash bid constitutes a fair price for any REO
Property for purposes of this Section 3.19, shall be determined by the Special
Servicer or, if such cash bid is from an Interested Person, by the Trustee. In
determining whether any bid received from an Interested Person represents a fair
price for any REO Property, the Trustee shall be supplied with and shall be
entitled to rely on the most recent appraisal in the related Servicing File
conducted in accordance with this Agreement within the preceding 12-month period
(or, in the absence of any such appraisal or if there has been a material change
at the subject property since any such appraisal, on a new appraisal to be
obtained by the Special Servicer (the cost of which shall be covered by, and be
reimbursable as, a Servicing Advance)). The appraiser conducting any such new
appraisal shall be an Independent Appraiser selected by the Special Servicer if
neither the Special Servicer nor any Affiliate thereof is bidding with respect
to an REO Property and selected by the Trustee if either the Special Servicer or
any Affiliate thereof is so bidding. Where any Interested Person is among those
bidding with respect to an REO Property, the Special Servicer shall require that
all bids be submitted to it (and, if the Special Servicer or any Affiliate
thereof is bidding, to the Trustee) in writing and be accompanied by a
refundable deposit of cash in an amount equal to 5% of the bid amount. In
determining whether any bid from a Person other than an Interested Person
constitutes a fair price for any REO Property, the Special Servicer shall take
into account the results of any appraisal or updated appraisal that it or the
Master Servicer may have obtained in accordance with this Agreement within the
prior twelve months, and any Independent Appraiser shall be instructed to take
into account, as applicable, among other factors, the occupancy level and
physical condition of the subject REO Property, the state of the local economy
and the obligation to dispose of the subject REO Property within the time period
specified in Section 3.17(a). The Purchase Price for any REO Property shall in
all cases be deemed a fair price. Notwithstanding the other provisions of this
Section 3.19, no cash bid from the Special Servicer or any Affiliate thereof
shall constitute a fair price for any REO Property unless such bid is the
highest cash bid received and at least two independent bids (not including the
bid of the Special Servicer or any Affiliate) have been received. In the event
the bid of the Special Servicer or any Affiliate thereof is the only bid
received or is the higher of only two bids received, then additional bids shall
be solicited. If an additional bid or bids, as the case may be, are received and
the original bid of the Special Servicer or any Affiliate thereof is the highest
of all cash bids received, then the bid of the Special Servicer or such
Affiliate shall be accepted, provided that the Trustee has otherwise determined,
as provided above in this Section 3.19(s), that such bid constitutes a fair
price for any REO Property. 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 a
real property.
(r) Subject to Sections 3.19(a) through 3.19(g) above, and further
subject to Section 6.11, the Special Servicer shall act on behalf of the Trustee
in negotiating with independent third parties seeking to purchase an REO
Property and taking any other action necessary or appropriate in connection with
the sale of any Specially Serviced Mortgage Loan or REO Property pursuant to
this Section 3.19, and the collection of all amounts payable in connection
therewith. In connection therewith, the Special Servicer may charge prospective
bidders for any REO Property, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to, or evaluating bids for, such REO Property without obligation to
deposit such amounts into the Pool Custodial Account. Any sale of a Specially
Serviced Mortgage Loan or an REO Property pursuant to this Section 3.19 shall be
final and without recourse to the Trustee or the Trust, and if such sale is
consummated in accordance with the terms of this Agreement, neither the Special
Servicer nor the Trustee shall have any liability to any Certificateholder with
respect to the purchase price therefor accepted by the Special Servicer or the
Trustee.
(s) Any sale of a Specially Serviced Mortgage Loan or an REO
Property pursuant to this Section 3.19 shall be for cash only and shall be on a
servicing released basis.
Section 3.20 Additional Obligations of the Master Servicer;
Obligations to Notify Ground Lessors; the Special Servicer's Right to Request
the Master Servicer to Make Servicing Advances.
(a) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the lesser of (i) the
aggregate amount of all Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments received during the most recently ended
Collection Period with respect to Performing Serviced Mortgage Loans in the
Mortgage Pool and (ii) the aggregate of all Master Servicing Fees received by
the Master Servicer during such Collection Period with respect to the entire
Mortgage Pool (but only to the extent of that portion thereof calculated at a
rate of 0.01% per annum with respect to each and every Serviced Mortgage Loan
and each and every REO Mortgage Loan that was previously a Serviced Mortgage
Loan); provided, however, that if any such Prepayment Interest Shortfall occurs
as a result of the Master Servicer's allowing the Mortgagor to deviate from the
terms of the related Loan documents regarding principal prepayments, the Master
Servicer shall be obligated to pay an amount equal to the entire Prepayment
Interest Shortfall with respect to the subject Serviced Mortgage Loan without
any limitation of the kind set forth in clause (ii) of this sentence.
The Master Servicer shall deliver to the Trustee for deemed deposit
in the Class OEA-B Sub-Account on each Master Servicer Remittance Date, without
any right of reimbursement therefor, an amount equal to the lesser of (i) any
Prepayment Interest Shortfall on the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan, if
it is a Performing Loan, incurred in connection with Principal Prepayments
received during the most recently ended Collection Period with respect to such
Loan and (ii) the Master Servicing Fee received by the Master Servicer during
such Collection Period with respect to the 000 Xxxxxx Xxxxxx Non-Pooled Trust
Loan (but only to the extent of that portion thereof calculated at a rate of
0.01% per annum); provided, however, that if any such Prepayment Interest
Shortfall occurs as a result of the Master Servicer's allowing the Mortgagor to
deviate from the terms of the related Loan documents regarding principal
prepayments, the Master Servicer shall be obligated to pay an amount equal to
the entire Prepayment Interest Shortfall with respect to the 000 Xxxxxx Xxxxxx
Non-Pooled Trust Loan without any limitation of the kind set forth in clause
(ii) of this sentence.
(b) The Master Servicer shall, as to each Serviced Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, even if
the corresponding fee interest is encumbered, promptly (and in any event within
60 days) following the Closing Date, notify the related ground lessor of the
transfer of such Serviced Loan to the Trust Fund pursuant to this Agreement and
inform such ground lessor that any notices of default under the related Ground
Lease should thereafter be forwarded to the Master Servicer.
(c) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor in a hospitality property, not
later than the later of (i) 30 days following the Master Servicer's receipt of
the subject franchise agreement and (ii) the expiration of the period that may
be required for such notice pursuant to the terms of the applicable franchise
documents, if any, notify the related hospitality franchisor of the transfer of
such Mortgage Loan to the Trust Fund pursuant to this Agreement and inform such
hospitality franchisor that any notices of default under the related franchise
agreement should thereafter be forwarded to the Master Servicer (and also to the
Special Servicer if such Mortgage Loan becomes a Specially Serviced Mortgage
Loan).
(d) Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Servicing Advance,
such request to be made, in writing, at least five (5) Business Days (or, in an
emergency situation or on an urgent basis, two (2) Business Days, provided that
the written request set forth the nature of the emergency or the basis of the
urgency) in advance of the date on which such Servicing Advance is required to
be made hereunder and to be accompanied by such information and documentation
regarding the subject Servicing Advance as the Master Servicer may reasonably
request. The Master Servicer shall have the obligation to make any such
Servicing Advance that it is so requested by the Special Servicer to make,
within five (5) Business Days (or, in an emergency situation or on an urgent
basis, two (2) Business Days) of the Master Servicer's receipt of such request.
If the request is timely and properly made, the Special Servicer shall be
relieved of any obligations with respect to a Servicing Advance that it so
requests the Master Servicer to make (regardless of whether or not the Master
Servicer shall make such Servicing Advance). The Master Servicer shall be
entitled to reimbursement for any Servicing Advance made by it at the direction
of the Special Servicer, together with interest thereon in accordance with
Sections 3.05(a), 3.05A and 3.12(b), as applicable, at the same time, in the
same manner and to the same extent as the Master Servicer is entitled with
respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.20(d),
but subject to the provisions of Section 3.12(e), the Master Servicer shall not
be required to make at the direction of the Special Servicer, any Servicing
Advance if the Master Servicer determines in its reasonable, good faith judgment
that such Servicing Advance, although not characterized by the Special Servicer
as a Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing
Advance. The Master Servicer shall notify the Special Servicer in writing of
such determination, which shall be made pursuant to Section 3.12(d). Any request
by the Special Servicer that the Master Servicer make a Servicing Advance shall
be deemed to be a determination by the Special Servicer that such requested
Servicing Advance is not a Nonrecoverable Servicing Advance, and the Master
Servicer, the Trustee and the Fiscal Agent shall be entitled to conclusively
rely on such determination. Upon determining that any Servicing Advance
previously made with respect to a Specially Serviced Loan or REO Property is a
Nonrecoverable Servicing Advance, the Special Servicer shall report to the
Master Servicer the Special Servicer's determination. The Master Servicer shall
be entitled to conclusively rely on such a determination.
Section 3.21 Modifications, Waivers, Amendments and Consents;
Defeasance.
(a) Subject to Sections 3.21(b) through 3.21(f) below, and further
subject to Section 6.11, the Special Servicer (or, under the limited
circumstances set forth in Section 3.21(c), the Master Servicer) may, on behalf
of the Trustee and, in the case of the Companion Loans, any Companion Loan
Noteholder, agree to any modification, extension, waiver or amendment of any
term of any Serviced Loan and respond to various Mortgagor requests for consent
on the part of the mortgagee (including the lease reviews and lease consents
related thereto), without the consent of the Trustee, any Certificateholder, any
Companion Loan Noteholder, the Master Servicer (in the case of any such action
taken by the Special Servicer) or, except as expressly set forth below, the
Special Servicer (in the case of any such action taken by the Master Servicer).
(b) All modifications, extensions, waivers or amendments of any
Serviced Loan, including the lease reviews and lease consents related thereto,
shall be in writing and shall be considered and effected in a manner consistent
with the Servicing Standard.
(c) Except as set forth in Section 3.08(a) and (c) and in this
Section 3.21(c), the Master Servicer may not agree to any modification,
extension, waiver or amendment of any term or provision of any Serviced Loan,
except that the Master Servicer may agree to any amendment, modification, waiver
or extension of any Performing Serviced Loan relating to any of the following
items (without obtaining prior written consent of the Directing Holder or the
Special Servicer):
(i) consent to subordination of the related Mortgage Loan to an
easement or right of way for utilities, access, parking, public
improvements or another similar purpose, provided the Master Servicer
shall have determined in accordance with the Servicing Standard that such
easement or right of way shall not materially interfere with the then
current use of the related Mortgaged Property, or the security intended to
be provided by such Mortgage, the related Mortgagor's ability to repay the
Mortgage Loan, or materially or adversely affect the value of the related
Mortgaged Property;
(ii) grant waivers of minor covenant defaults (other than financial
covenants) including late financial statements and approving any waiver
affecting the timing of receipt of financial statements from any
Mortgagor; provided that such financial statements are delivered no less
than quarterly and within 60 days of the end of the calendar quarter to
which such financial statements relate;
(iii) grant releases of non-material parcels of a Mortgaged Property
(provided that releases as to which the related Loan documents expressly
require the mortgagee thereunder to make releases upon the satisfaction of
certain conditions (which do not provide for lender consent or lender
discretion) shall be made as required by the related Loan documents);
(iv) approve or consent to grants of easements and rights of way
that do not materially affect the use or value of a Mortgaged Property or
the Mortgagor's ability to make any payments with respect to the related
Mortgage Loan;
(v) grant other non-material waivers, consents, modifications or
amendments;
(vi) approve routine leasing activity with respect to leases for
less than the lesser of (A) 50,000 square feet and (B) 20% of the related
Mortgaged Property;
(vii) approve annual budgets for the related Mortgaged Property,
provided that no such budget (A) provides for the payment of operating
expenses in an amount equal to more than 110% of the amounts budgeted
therefor for the prior year or (B) provides for the payment of any
material expenses to any affiliate of the Mortgagor (other than with
respect to the payment of the management fee to any property manager if
such management fee is no more than the management fee in effect on the
Cut off Date); and
(viii) approve a change of the property manager at the request of
the related Mortgagor, provided that (A) the successor property manager is
not affiliated with the Mortgagor and is a nationally or regionally
recognized manager of similar properties, (B) the related Serviced
Mortgage Loan does not represent 2% or more of the then aggregate
principal balance of the Mortgage Pool and (C) the Loan Group Mortgaged
Properties are not involved;
provided that (1) any such modification, waiver or amendment would not in any
way affect a payment term of the related Mortgage Loan or waive any rights with
respect to a guarantor thereunder, (2) agreeing to such modification, waiver or
amendment would be consistent with the Servicing Standard, (3) agreeing to such
modification, waiver or amendment will not violate the terms, provisions or
limitations of this Agreement and (4) other than in connection with clause (vi)
above, the Master Servicer will not grant or enter into any subordination,
non-disturbance and attornment agreements (or waivers, consents, approvals,
amendments or modifications in connection therewith) without the prior written
consent of the Special Servicer.
The Master Servicer shall give the Special Servicer prompt notice of
any action taken pursuant to clauses (i) through (viii) above, including copies
of the documentation relating to such action.
If a default in the payment of a Balloon Payment occurs with respect
to a Mortgage Loan that has a term of five years or less from its origination,
the Master Servicer may extend the maturity date of such Mortgage Loan for up to
six months (subject to a limit of two such six-month extensions), if (1) such
Mortgage Loan is not a Specially Serviced Loan at the time of such extension and
(2) the Master Servicer has notified the Directing Holder of its proposed action
and the Directing Holder either approves of such action or fails to reply to
such proposal within ten Business Days after receipt of notice from the Master
Servicer.
Except as permitted by Section 3.02(a), Section 3.03(d), Section
3.07, Section 3.08(a) and this Section 3.21(c), the Master Servicer may not
agree to waive, modify or amend any term of any Loan or respond to any Mortgagor
requests for mortgagee consent, and the Master Servicer shall forward such
requests to the Special Servicer. Furthermore, the Master Servicer may not agree
to any modification, extension, waiver or amendment of any term of any Mortgage
Loan that would cause an Adverse REMIC Event with respect to either REMIC Pool
or any Loan REMIC.
The Master Servicer shall notify the applicable Directing Holder of
any release or substitution of collateral approved by the Master Servicer
pursuant to this Section 3.21(c), even if such release or substitution is in
accordance with such Loan.
(d) Except as provided in Section 3.02(a), Section 3.07, Section
3.08 or Section 3.21(e), the Special Servicer, on behalf of the Trustee and, in
the case of a Companion Loan, the related Companion Loan Noteholders, shall not
agree or consent to any modification, extension, waiver or amendment of any term
of any Serviced Loan that would:
(i) affect the amount or timing of any scheduled payment of
principal, interest or other amount (including Prepayment Premiums or
Yield Maintenance Charges, but excluding Default Interest and other
amounts payable as additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or effect the waiver of any
prepayment restriction thereunder or permit a Principal Prepayment during
any period in which the related Mortgage Note prohibits Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Independent Appraiser
delivered to the Special Servicer at the expense of the related Mortgagor
and upon which the Special Servicer may conclusively rely) of the property
to be released; or
(iv) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impair the security for such Loan or reduce the
likelihood of timely payment of amounts due thereon.
Notwithstanding the prior provisions of this Section 3.21(d), and
subject to the Servicing Standard, and further subject to clause (C) of the
first paragraph of, and the entire second paragraph of, Section 3.21(e) and
Section 6.11, following any extensions of the maturity date of a Performing
Serviced Loan that the Master Servicer is permitted to approve pursuant to
Section 3.21(c), the Special Servicer may extend the maturity date of a
Performing Serviced Loan for up to one year (subject to a limit of a total of
four such one-year extensions); provided that the related Mortgagor has failed
to make any Balloon Payment on such Performing Serviced Loan. In connection with
an extension of the maturity date of a Performing Serviced Loan approved by the
Special Servicer in accordance with this subsection (d), the Special Servicer
shall process all requests and related documentation and shall be entitled to
retain 100% of any modification fee or extension fee that is actually paid by
the related Mortgagor. The Special Servicer shall promptly notify the Master
Servicer of any extension granted by the Special Servicer in accordance with
this paragraph.
(e) Notwithstanding Section 3.21(d), but subject to Section 6.11 and
the second paragraph of this Section 3.21(e), the Special Servicer may (i)
reduce the amounts owing under any Specially Serviced Loan by forgiving
principal, accrued interest or any Prepayment Premium or Yield Maintenance
Charge, (ii) reduce the amount of the Monthly Payment on any Specially Serviced
Loan, including by way of a reduction in the related Mortgage Rate, (iii)
forbear in the enforcement of any right granted under any Mortgage Note,
Mortgage or other Loan document relating to a Specially Serviced Loan, (iv)
accept a Principal Prepayment on any Specially Serviced Loan during any Lockout
Period or (v) extend the maturity of any Specially Serviced Loan; provided that
(A) the related Mortgagor is in monetary default or material non-monetary
default with respect to such Specially Serviced Loan or, in the reasonable, good
faith judgment of the Special Servicer, such default is reasonably foreseeable,
(B) in the reasonable, good faith judgment of the Special Servicer, such
modification, extension, waiver or amendment would increase the recovery on such
Specially Serviced Loan to Certificateholders (as a collective whole) or, if a
Loan Group is involved, would increase the recovery on such Loan Group to
Certificateholders and related Companion Loan Noteholders (as a collective
whole), on a present value basis (the relevant discounting of anticipated
collections that will be distributable to the Certificateholders (or, in the
case of the Loan Groups, to Certificateholders and related Companion Loan
Noteholders), to be performed at the related Mortgage Rate (or, in the case of a
Loan Group, at the weighted average of the Mortgage Rates for such Loan Group)
in each case), and (C) such modification, extension, waiver or amendment would
not cause an Adverse REMIC Event in respect of either REMIC Pool, any Loan REMIC
or any REMIC created in connection with Companion Loan Securities; and provided,
further, that (i) any modification, extension, waiver or amendment of the
payment terms of a Loan Group shall be structured so as to be consistent with
the allocation and payment priorities set forth in the related Loan documents
and the related Co-Lender Agreement, such that neither the Trust as holder of
the related Mortgage Loan nor the related Companion Loan Noteholders shall gain
a priority over the other such Holder with respect to any payment, which
priority is not, as of the date of the related Co-Lender Agreement, reflected in
the related Loan documents and such Co-Lender Agreement and (ii) any waiver,
reduction or deferral of any particular amount due on any Loan in a Loan Group
or reduction of any Mortgage Rate on any Loan in a Loan Group shall be allocated
in the manner set forth in the related Co-Lender Agreement.
In no event shall the Special Servicer: (i) extend the maturity date
of a Serviced Loan beyond the date that is two years prior to the Rated Final
Distribution Date; (ii) extend the maturity date of any Serviced Loan for more
than five years beyond its Stated Maturity Date; or (iii) if the Serviced Loan
is secured solely or primarily by a Mortgage on the leasehold interest under a
Ground Lease (but not the related fee interest), extend the maturity date of
such Serviced Loan beyond the date which is 20 years (or, to the extent
consistent with the Servicing Standard, giving due consideration to the
remaining term of the Ground Lease, 10 years) prior to the expiration of the
term of such Ground Lease.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.21(e) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer (and, in the case of a Loan Group, the affected Companion Loan
Noteholders (and in the case of the 000 Xxxxxx Xxxxxx Loan Group, the Holders of
the Class OEA-B Certificates)) and describing in reasonable detail the basis for
the Special Servicer's determination. The Special Servicer shall attach to such
Officer's Certificate any information including but not limited to income and
expense statements, rent rolls, property inspection reports and appraisals that
support such determination.
(f) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer, as applicable, shall give
any consent, approval or direction regarding the termination of the related
property manager or the designation of any replacement property manager or, if
such Mortgaged Property is hospitality property, give any consent, approval or
direction regarding the termination of the franchise or the designation of a new
franchise, with respect to any Mortgaged Property that secures either (A) the
Companion Loans or (B) a Serviced Mortgage Loan that has an unpaid principal
balance that is at least equal to the lesser of $20,000,000 and 2% of the then
aggregate principal balance of the Mortgage Pool, unless: (1) the mortgagee is
not given discretion under the terms of the related Loan; or (2) it has received
prior written confirmation from each Rating Agency that such action will not
result in an Adverse Rating Event with respect to the Certificates or any
Companion Loan Securities.
Any party hereto seeking Rating Agency confirmation with respect to
the matters described above shall deliver a Review Package to such Rating
Agency.
(g) Any payment of interest that is deferred pursuant to any
modification, extension, waiver or amendment permitted hereunder, shall not, for
purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Loan, notwithstanding that the terms of such
modification, extension, waiver or amendment so permit. The foregoing shall in
no way limit the Special Servicer's ability to charge and collect from the
Mortgagor costs otherwise collectible under the terms of the related Mortgage
Note.
(h) The Special Servicer or Master Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, extension, waiver
or indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Loan and, further, by the terms of this Agreement and applicable law,
require that such Mortgagor pay to it (i) as additional servicing compensation,
a reasonable or customary fee for the additional services performed in
connection with such request, provided such fee does not cause a "significant
modification" of the Loan pursuant to Treasury Regulations Sections
1.1001-3(e)(2) or 1.860G-2(b), and (ii) any related costs and expenses incurred
by it. Any such fee that is to be shared by the Master Servicer and the Special
Servicer may not be waived or reduced by either such party without the consent
of the other party. In no event shall the Special Servicer or Master Servicer be
entitled to payment for such fees or expenses unless such payment is collected
from the related Mortgagor.
(i) The Special Servicer, with respect to a Specially Serviced Loan
and with respect to a Performing Serviced Loan as to which the Special Servicer
solely has approved, documented, processed and closed the subject modification,
extension, waiver or amendment, and the Master Servicer, with respect to any
other Serviced Loan, shall each notify the other, any related Sub-Servicers, the
Trustee and, where a Companion Loan is affected, the related Companion Loan
Noteholder (and in the case of the 000 Xxxxxx Xxxxxx Loan Group, to the Class
OEA-B Majority Holder (at the address specified in Section 11.05)), in writing,
of any modification, extension, waiver or amendment of any term of any Loan
(including fees charged the Mortgagor) agreed to by it and the date thereof, and
shall deliver to the Trustee or any related Custodian for deposit in the related
Mortgage File (with a copy to be delivered to or retained by, as applicable, the
Master Servicer), an executed counterpart of the agreement relating to such
modification, extension, waiver or amendment promptly following execution and
delivery thereof, to be followed by an original recorded counterpart promptly
following the recordation (and receipt).
(j) To the extent that either the Master Servicer or Special
Servicer waives any Default Charge in respect of any Serviced Loan, whether
pursuant to Section 3.02(a) or this Section 3.21, the respective amounts of
additional servicing compensation payable to the Master Servicer and the Special
Servicer as Net Default Charges out of such Default Charges shall be reduced
proportionately based upon the respective amounts that would have been payable
thereto as Net Default Charges out of such Default Charges if such waiver had
not been granted.
(k) With respect to any Serviced Loan that permits the release of
Mortgaged Properties through defeasance, to the extent permitted under the
related Loan documents, the Master Servicer shall, subject to the next paragraph
and the related Loan documents, (1) notify each Rating Agency, the Trustee, the
Underwriters and the Special Servicer upon receipt of a Mortgagor's notice of
defeasance of such Loan, (2) obtain the written confirmation from each Rating
Agency that the acceptance of a pledge of the Defeasance Collateral will not
result in an Adverse Rating Event with respect to the Certificates or any
Companion Loan Securities, and (3) take such further action as provided in such
Mortgage Note to effectuate such defeasance, including the purchase and
perfection of the Defeasance Collateral on behalf of the Trustee (as mortgagee
of record on behalf of the Certificateholders and, in the case of the Companion
Loans, the related Companion Loan Noteholders. The confirmation described in
clause (2) above shall not be required:
(i) from S&P in the case of a Serviced Mortgage Loan with an unpaid
principal balance less than or equal to $20,000,000 and constitutes less
than 5% of the aggregate unpaid principal balance of the Mortgage Pool,
and is not then one of the ten largest (measured by unpaid principal
balance) Mortgage Loans in the Mortgage Pool, provided the Master Servicer
delivers to S&P a certification in the form attached hereto as Exhibit L
(a "Defeasance Certificate"); or
(ii) from Fitch Ratings in the case of any Serviced Mortgage Loan
that is not then one of the ten largest (measured by unpaid principal
balance) Mortgage Loans in the Mortgage Pool or that is not then one of
the ten largest groups (measured by aggregate unpaid principal balance) of
Mortgage Loans with related Mortgagors, provided the Master Servicer
delivers to Fitch Ratings a Defeasance Certificate; or
(iii) from Xxxxx'x in the case of any Serviced Mortgage Loan that is
not then one of the ten largest (measured by unpaid principal balance)
Mortgage Loans in the Mortgage Pool and that is not then one of the ten
largest groups (measured by aggregate unpaid principal balance) of
Mortgage Loans with related Mortgagors, provided the Master Servicer
delivers to Xxxxx'x a Defeasance Certificate;
provided that, in the case of (i), (ii) or (iii) above, such written
confirmation shall not be required from S&P, Fitch Ratings and/or Xxxxx'x
(provided that the Master Servicer delivers a Defeasance Certificate to the
applicable Rating Agency), as applicable, in the event the subject Mortgage Loan
complies with the then current applicable guidelines set forth by such Rating
Agency, or the unpaid principal balance of such Mortgage Loan, the percentage
such Mortgage Loan constitutes of the Mortgage Pool or the relative size of such
Mortgage Loan with respect to the Mortgage Pool, as applicable, does not exceed
the current applicable threshold for review as set forth by such Rating Agency).
Notwithstanding the foregoing, but subject to the related Loan
documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral under a Defeasance Loan if (i) such defeasance would occur within two
years of the Startup Day, (ii) if the Defeasance Collateral shall not be
Government Securities; (iii) such Defeasance Loan (or any applicable agreement
executed in connection with the related defeasance) provides that the Mortgagor
shall be liable for any shortfalls from such Defeasance Collateral or otherwise
be subject to recourse liability with respect to the Defeasance Loan (except for
any liability that, pursuant to the terms of the related Loan documents,
survives such defeasance), (iv) all costs to be incurred in connection with such
defeasance (including Rating Agency fees, accountants' fees and costs incurred
in connection with any required opinions of counsel) would not be paid by the
related Mortgagor, or (v) unless such confirmation is not required pursuant to
the first paragraph of this Section 3.21(k), either Rating Agency does not
confirm in writing to the Master Servicer that the acceptance of a pledge of the
Defeasance Collateral in lieu of a prepayment will not result in an Adverse
Rating Event with respect to the Certificates or any Companion Loan Securities.
All expenses related to the defeasance of a Defeasance Loan shall be
charged to the related Mortgagor or other responsible party.
Section 3.22 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Loan that had otherwise been a Performing Serviced Loan, and
if the Master Servicer is not also the Special Servicer, the Master Servicer
shall immediately give notice thereof to the Special Servicer and with respect
to any Loan Group to the related Companion Loan Noteholder (and, in the case of
the 000 Xxxxxx Xxxxxx Loan Group, to the Class OEA-B Majority Holder (at the
address specified in Section 11.05)), and shall deliver a copy of the related
Servicing File, to the Special Servicer and shall use reasonable efforts to
provide the Special Servicer with all information, documents (or copies thereof)
and records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to such Loan, either in the Master Servicer's or
any of its directors', officers', employees', affiliates' or agents' possession
or control or otherwise available to the Master Servicer without undue burden or
expense, and reasonably requested by the Special Servicer to enable it to assume
its functions hereunder with respect thereto without acting through a
Sub-Servicer. The Master Servicer shall use reasonable efforts to comply with
the preceding sentence within five Business Days of the occurrence of each
related Servicing Transfer Event; provided, however, that if the information,
documents and records requested by the Special Servicer are not contained in the
Servicing File, the Master Servicer shall have such period of time as reasonably
necessary to make such delivery. The Special Servicer may conclusively rely on
the Master Servicer's determination that a Servicing Transfer Event has occurred
giving rise to a Serviced Loan's becoming a Specially Serviced Loan. The Special
Servicer shall not be liable or in default hereunder for any reasonable act or
failure to act because of or arising out of the Master Servicer's failure to
deliver information, documents or records with respect to any Specially Serviced
Loan in accordance with the requirements hereof.
Upon determining that a Specially Serviced Loan has become a
Corrected Loan, and if the Master Servicer is not also the Special Servicer, the
Special Servicer shall immediately give notice thereof, and shall within five
Business Days of such occurrence return the related Servicing File, together
with any and all new information, documents and records relating to the subject
Loan that were not part of the Servicing File when it was delivered to the
Special Servicer, to the Master Servicer (or such other Person as may be
directed by the Master Servicer) and upon giving such notice, and returning such
Servicing File, to the Master Servicer (or such other Person as may be directed
by the Master Servicer), the Special Servicer's obligation to service such Loan,
and the Special Servicer's right to receive the Special Servicing Fee with
respect to such Loan shall terminate, and the obligations of the Master Servicer
to service and administer such Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Loan, the Master Servicer and the
Special Servicer shall each transfer to the other, as and when applicable, the
servicing of all other Cross-Collateralized Mortgage Loans constituting part of
the same Cross-Collateralized Group; provided that no Cross-Collateralized
Mortgage Loan may become a Corrected Loan at anytime that a continuing Servicing
Transfer Event exists with respect to another Cross-Collateralized Mortgage Loan
in the same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Loans, the Special Servicer
shall provide to the Custodian originals of newly executed documents included
within the definition of "Mortgage File" for inclusion in the related Mortgage
File (with a copy of each such original to the Master Servicer), and shall
provide to the Master Servicer copies of any additional related Loan
information, including correspondence with the related Mortgagor.
(c) Upon request (and to the extent not otherwise already provided
by the Special Servicer pursuant to its reporting obligations hereunder), the
Special Servicer shall deliver to the Master Servicer, the Trustee and each
Rating Agency (or such other Person as may be directed by the Master Servicer) a
statement in writing and in computer readable format (the form of such statement
to be agreed upon by the Master Servicer and the Special Servicer) describing,
on a loan-by-loan and property-by-property basis, (1) insofar as it relates to
Specially Serviced Loans and REO Properties, the information described in
clauses (vi) through (xv) of Section 4.02(a) (with respect to information set
forth in such clauses related to prior Distribution Dates and/or periods, the
Special Servicer may conclusively rely on information furnished to it by the
Master Servicer or the Trustee) and, insofar as it relates to the Special
Servicer, the information described in clauses (xxiv) and (xxx) of Section
4.02(a), (2) the amount of all payments, Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received, and the amount of any Realized Loss
incurred, with respect to each Specially Serviced Loan during the related
Collection Period, and the amount of Insurance Proceeds, Condemnation Proceeds
and Liquidation Proceeds received, and the amount of any Realized Loss incurred,
with respect to each REO Property during the related Collection Period, (3) the
amount, purpose and date of all Servicing Advances made by the Special Servicer
with respect to each Specially Serviced Loan and REO Property during the related
Collection Period, (4) in writing, a brief narrative summary of the status of
each Specially Serviced Loan, (5) the CMSA Special Servicer Loan File and (6)
such additional information relating to the Specially Serviced Loans and REO
Properties as the Master Servicer reasonably requests to enable it to perform
its responsibilities under this Agreement. Notwithstanding the foregoing
provisions of this subsection (c), the Master Servicer shall maintain ongoing
payment records with respect to each of the Specially Serviced Loans and REO
Properties and shall provide the Special Servicer with any information
reasonably available to the Master Servicer required by the Special Servicer to
perform its duties under this Agreement.
Section 3.23 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer (with the consent
of the Controlling Class Directing Holder) may enter into Sub-Servicing
Agreements to provide for the performance by third parties of any or all of
their respective obligations hereunder, provided that in each case, the
Sub-Servicing Agreement:
(i) is consistent with this Agreement in all material respects,
requires the Sub-Servicer to comply with all of the applicable conditions
of this Agreement and, with the exception of Sections 7.01(a)(x), (xi) and
(xii), provides for events of default with respect to the Sub-Servicer
substantially the same as those set forth in Section 7.01 (modified as
necessary to apply to the Sub-Servicer's obligations under the
Sub-Servicing Agreement);
(ii) provides that if the Master Servicer or the Special Servicer,
as the case may be, shall for any reason no longer act in such capacity
hereunder (including by reason of an Event of Default), the Trustee or its
designee may thereupon assume all of the rights and, except to the extent
they arose prior to the date of assumption, obligations of the Master
Servicer or the Special Servicer, as the case may be, under such agreement
or may terminate such sub-servicing agreement without cause and without
payment of any penalty or termination fee (provided, however, that those
Sub-Servicing Agreements in effect as of the Closing Date (or, if being
negotiated as of the Closing Date, in effect within 90 days thereafter)
may only be terminated by the Trustee or its designee as contemplated by
Section 3.23(d) hereof and in such additional manner as is provided in
such Sub-Servicing Agreement);
(iii) provides that the Trustee, for the benefit of the
Certificateholders and, in the case of a Sub-Servicing Agreement relating
to a Loan Group, the related Companion Loan Noteholders, shall each be a
third party beneficiary under such agreement, but that (except to the
extent the Trustee or its designee assumes the obligations of the Master
Servicer or the Special Servicer, as the case may be, thereunder as
contemplated by the immediately preceding clause (ii)) none of the
Trustee, the Trust, any successor Master Servicer, the Special Servicer or
any Companion Loan Noteholder, as the case may be, or any
Certificateholder shall have any duties under such agreement or any
liabilities arising therefrom;
(iv) permits any purchaser of a Serviced Mortgage Loan pursuant to
this Agreement to terminate such agreement with respect to such purchased
Mortgage Loan at its option and without penalty;
(v) does not permit the Sub-Servicer to enter into or consent to any
modification, extension, waiver or amendment or otherwise take any action
on behalf of the Master Servicer or the Special Servicer contemplated by
Section 3.08, Section 3.09 and Section 3.21 hereof or to foreclose on any
Mortgage without the consent of the Master Servicer or Special Servicer,
as the case may be;
(vi) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund;
(vii) each Sub-Servicing Agreement entered into by the Master
Servicer (including any with an effective date on or before the Closing
Date) provides that such agreement shall, with respect to any Serviced
Loan serviced thereunder, terminate at the time such Loan becomes a
Specially Serviced Loan (or, alternatively, be subject to the Special
Servicer's rights to service such Loan for so long as such Loan continues
to be a Specially Serviced Loan); and
(viii) each Sub-Servicing Agreement entered into by the Special
Servicer provides that it relates only to Specially Serviced Loans and
shall terminate with respect to any such Loan which ceases to be a
Specially Serviced Loan.
The Master Servicer and the Special Servicer each shall deliver to
the Trustee and each other copies of all Sub-Servicing Agreements (and, to each
of the Companion Loan Noteholders, copies of any Sub-Servicing Agreement in
respect of the Companion Loans, and to the Trustee for distribution to each of
the Holders of the Class OEA-B Certificates, copies of any Sub-Servicing
Agreement in respect of the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan), as well as
any amendments thereto and modifications thereof, entered into by it promptly
upon its execution and delivery of such documents. References in this Agreement
to actions taken or to be taken by the Master Servicer or the Special Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the Master
Servicer or the Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer or the Special Servicer hereunder to make P&I Advances or
Servicing 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 and,
accordingly, such P&I Advances or Servicing Advances shall be recoverable by
such Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were the Master Servicer or the Special Servicer, as the case may
be. For so long as they are outstanding, Advances shall accrue interest in
accordance with Sections 3.12(b), 4.03(d) and 4.03A(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 notify the other, the Trustee, the
Depositor, the Controlling Class Certificateholders, if a Loan Group is
affected, the related Companion Loan Noteholders, and if the 000 Xxxxxx Xxxxxx
Loan Group is affected, the Trustee for notice to the Holders of the Class OEA-B
Certificates in writing promptly of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer (i) shall be authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law, and (ii)
except for any Sub-Servicer that is servicing any of the Mortgage Loans on the
Closing Date, shall be an approved conventional seller/servicer of mortgage
loans for FHLMC or Xxxxxx Mae or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders and, in the case of the Companion Loans,
also for the benefit of the related Companion Loan Noteholders, shall (at no
expense to the Trustee, the Certificateholders, the Companion Loan Noteholders
or the Trust Fund) monitor the performance and enforce the obligations of their
respective Sub-Servicers under the related Sub-Servicing Agreements. Such
enforcement, including the legal prosecution of claims, termination of
Sub-Servicing Agreements in accordance with their respective terms and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Master Servicer or the Special Servicer,
as applicable, in its good faith business judgment, would require were it the
owner of the subject Serviced Loans.
(d) In the event of the resignation, removal or other termination of
the Master Servicer or any successor Master Servicer hereunder for any reason,
the Trustee or other Person succeeding such resigning, removed or terminated
party as Master Servicer, shall elect, with respect to any Sub-Servicing
Agreement in effect as of the Closing Date (or, if being negotiated as of the
Closing Date, in effect within 90 days thereafter) that still exists at the time
of such termination: (i) to assume the rights and obligations of the Master
Servicer under such Sub-Servicing Agreement and continue the sub-servicing
arrangements thereunder on the same terms (including the obligation to pay the
same sub-servicing fee); (ii) to enter into a new Sub-Servicing Agreement with
such Sub-Servicer on such terms as the Trustee or other successor Master
Servicer and such Sub-Servicer shall mutually agree (it being understood that
such Sub-Servicer is under no obligation to accept any such new Sub-Servicing
Agreement or to enter into or continue negotiations with the Trustee or other
successor Master Servicer); or (iii) to terminate the Sub-Servicing Agreement if
(but only if) an Event of Default (as defined in such Sub-Servicing Agreement)
has occurred and is continuing, without paying any sub-servicer termination fee,
and in any additional manner provided for in such Sub-Servicing Agreement.
The Sub-Servicers as to which Sub-Servicing Agreements are in effect
or being negotiated as of the Closing Date are listed on Exhibit K hereto.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee, the
Certificateholders and the Companion Loan Noteholders for the performance of
their respective obligations and duties under this Agreement in accordance with
the provisions hereof to the same extent and under the same terms and conditions
as if each alone were servicing and administering the Serviced Loans and/or REO
Properties for which it is responsible.
Section 3.24 Representations and Warranties of the Master Servicer.
(a) The Master Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Master Servicer is a national banking association, duly
organized under the laws of the United States, and the Master Servicer is
in compliance with the laws of each state in which any Mortgaged Property
is located to the extent necessary to perform its obligations under this
Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, receivership, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
(including bank creditors') rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer, the outcome
of which, in the Master Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Master Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Master Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Master Servicer of or
compliance by the Master Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Master Servicer under this Agreement.
(viii) The Master Servicer possesses all insurance required pursuant
to Section 3.07(c) of this Agreement.
(ix) The Master Servicer has reviewed all Sub-Servicing Agreements
in effect as of the Closing Date and will review all Sub-Servicing
Agreements entered into by it after the Closing Date.
(b) The representations and warranties of the Master Servicer set
forth in Section 3.24(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 3.24(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.24(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
Section 3.25 Representations and Warranties of the Special Servicer.
(a) The Special Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Special Servicer is a corporation validly existing and in
good standing under the laws of the State of Florida, and the Special
Servicer is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer, the
outcome of which, in the Special Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the Special Servicer
from entering into this Agreement or materially and adversely affect the
ability of the Special Servicer to perform its obligations under this
Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Special Servicer of or
compliance by the Special Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Special Servicer under this Agreement.
(viii) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(b) The representations and warranties of the Special Servicer set
forth in Section 3.25(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 3.25(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.25(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
Section 3.26 Certain Matters Regarding the Purchase of the Loan
Group Trust Mortgage Loans.
If, pursuant to Section 2.03, Section 3.19 and Section 9.01, any
Loan Group Trust Mortgage Loan is purchased or repurchased from the Trust Fund,
the purchaser thereof shall be bound by the terms of the related Co-Lender
Agreement and shall assume the rights and obligations of the holder of the
Mortgage Note that was formerly part of the Trust Fund under the related
Co-Lender Agreement. All portions of the related Mortgage File and other
documents pertaining to such Mortgage Loan shall be endorsed or assigned to the
extent necessary or appropriate to the purchaser of such Mortgage Loan.
Thereafter such Mortgage File shall be held by the holder of such purchased
Mortgage Loan, as applicable, or a custodian appointed thereby for the benefit
of the "Note A Lender" and the "Note B Lender" as their interests appear under
the related Co-Lender Agreement. If the related Servicing File is not already in
the possession of such party, it shall be delivered to the master servicer or
special servicer, as the case may be, under the separate servicing agreement for
the Loan Groups. Notwithstanding the foregoing, with respect to the 000 Xxxxxx
Xxxxxx Loan Group, if the 000 Xxxxxx Xxxxxx Pooled Trust Loan is purchased from
the Trust Fund, but the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan remains in the
Trust Fund, then the 000 Xxxxxx Xxxxxx Loan Group shall continue to be serviced
pursuant to this Agreement, and the Mortgage File (other than the Note for the
000 Xxxxxx Xxxxxx Pooled Trust Loan, which shall be delivered to the purchaser
thereof) shall remain with the Trustee, and the Servicing File shall remain with
the Master Servicer.
Section 3.27 Application of Default Charges.
(a) Any and all Default Charges that are actually collected with
respect to any Mortgage Loan or REO Mortgage Loan in the Mortgage Pool
(excluding any Mortgage Loan that is part of a Loan Group) during any Collection
Period, shall be applied for the following purposes and in the following order,
in each case to the extent of the remaining portion of such Default Charges:
First, to pay to the Fiscal Agent, the Trustee, the Master Servicer
or the Special Servicer, in that order, any interest due and owing to such party
on any outstanding Advances made thereby with respect to the subject Mortgage
Loan or REO Mortgage Loan and reimbursed in the related Collection Period;
Second, to pay any other outstanding expenses (exclusive of Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect to the
subject Mortgage Loan or REO Mortgage Loan and that, if paid from a source other
than Default Charges collected with respect to the subject Mortgage Loan, would
constitute Additional Trust Fund Expenses;
Third, to reimburse the Trust for any interest on Advances paid to
the Fiscal Agent, the Trustee, the Master Servicer or the Special Servicer since
the Closing Date with respect to the subject Mortgage Loan or REO Mortgage Loan,
which payment was made from a source other than Default Charges and not
previously reimbursed under this clause Third;
Fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses (exclusive of Special Servicing Fees, Liquidation Fees and Workout
Fees) paid since the Closing Date with respect to the subject Mortgage Loan or
REO Mortgage Loan, which payment was made from a source other than Default
Charges and not previously reimbursed under this clause Fourth; and
Fifth, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as additional master servicing
compensation to the Master Servicer, to the extent received, if they were
accrued in respect of a Performing Serviced Mortgage Loan, or as additional
special servicing compensation to the Special Servicer, to the extent received,
if they were accrued in respect of a Specially Serviced Mortgage Loan or an REO
Mortgage Loan, in each case pursuant to Section 3.11.
(b) Default Charges applied to reimburse the Trust pursuant to
clauses Third and Fourth, of subsection (a), are intended to be part of the
amounts to be delivered by the Master Servicer to the Trustee pursuant to the
first paragraph of Section 3.04(b) on or before the Master Servicer Remittance
Date next following the Collection Period during which they were received, for
deposit in the Distribution Account, subject to application pursuant to Section
3.05(a) for any items payable out of general collections on the Mortgage Loans
and any REO Properties. Default Charges applied to pay outstanding interest on
Advances to any particular party pursuant to clause First of subsection (a)
shall be applied to pay such party such interest on Advances in such manner that
the interest that accrued first and has been outstanding the longest shall be
paid first. Default Charges applied to pay outstanding expenses pursuant to
clause Second of subsection (a) shall be applied to pay such expenses in the
chronological order in which they were incurred. Default Charges applied to
reimburse the Trust pursuant to clauses Third and Fourth, of subsection (a)
shall be deemed to offset either interest paid on Advances or other Additional
Trust Fund Expenses, depending on which clause is applicable, in the
chronological order in which they were made or incurred, as applicable
(whereupon such interest paid on Advances or such other Additional Trust Fund
Expenses, depending on which clause is applicable, shall thereafter be deemed to
have been paid out of Default Charges).
(c) Any and all Default Charges that are actually collected with
respect to any Serviced Loan Group or any successor REO Loan with respect
thereto during any Collection Period (as allocable thereto pursuant to the
related loan agreement), shall be applied for the following purposes and in the
following order, in each case to the extent of the remaining portion of such
Default Charges:
First, to pay to the Fiscal Agent, the Trustee, the Master Servicer
or the Special Servicer, in that order, any interest due and owing to such party
on any outstanding Servicing Advances made thereby with respect to such Loan
Group or REO Loan or the related Loan Group Mortgaged Property and reimbursed in
the related Collection Period (to be applied with respect to any particular
party in such manner that the interest that accrued first and has been
outstanding the longest shall be paid first);
Second, to pay to the Fiscal Agent, any Other Backup Advancer, the
Trustee or the Master Servicer, in that order, any interest due and owing to
such party on any outstanding P&I Advances made thereby with respect to such
Loan Group or REO Loan or the related Loan Group Mortgaged Property and
reimbursed in the related Collection Period (to be applied with respect to any
particular party in such manner that the interest that accrued first and has
been outstanding the longest shall be paid first);
Third, to pay any other outstanding expenses (exclusive of Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect to such
Loan Group or REO Loan and that, if paid from a source other than such Default
Charges collected with respect to such Loan Group, would constitute Additional
Trust Fund Expenses;
Fourth, to reimburse the Trust or any Companion Loan Noteholder for
any interest on Advances paid to the Fiscal Agent, the Trustee, the Master
Servicer or the Special Servicer since the Closing Date with respect to such
Loan Group or REO Loan, which payment was made from a source other than Default
Charges and not previously reimbursed under this clause Fourth or clause Third
under Section 3.27(a);
Fifth, to reimburse the Trust or any Companion Loan Noteholder for
any other Additional Trust Fund Expenses (exclusive of Special Servicing Fees,
Liquidation Fees and Workout Fees) paid since the Closing Date with respect to
such Loan Group or REO Loan, which payment was made from a source other than
Default Charges and not previously reimbursed under this clause Fifth or clause
Fourth under Section 3.27(a); and
Sixth, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as additional master servicing
compensation to the Master Servicer, to the extent received, if they were
accrued with respect to such Companion Loan during a period that it was a
Performing Serviced Loan, or as additional special servicing compensation to the
Special Servicer, to the extent received, if they were accrued with respect to
such Companion Loan during a period that it was a Specially Serviced Loan or an
REO Loan, in each case pursuant to Section 3.11.
Section 3.28 Limitations on and Authorizations of the Master
Servicer and Special Servicer with Respect to Specific Mortgage Loans.
(a) With respect to any Mortgage Loans that provide for a "cash
trap" provision whereby excess cash in an account controlled by the lender (i)
is not released to the related Mortgagor and (ii) may, at the lender's
discretion, be applied as a prepayment on the Mortgage Loan, the Master Servicer
shall not apply any of such excess cash as prepayment of the related Mortgage
Loan unless the Special Servicer consents.
(b) In the event that a Servicing Advance made by the Master
Servicer, the Special Servicer (if applicable), the Trustee or the Fiscal Agent
with respect to a Serviced Loan Group in accordance with this Agreement becomes
a Nonrecoverable Advance, the Master Servicer (on behalf of the Trust Fund)
shall seek reimbursement from the holders of the related Pari Passu Companion
Loans (including, in the case of a holder that is a securitization trust, from
general funds in the related collection account) for such holder's pro rata
share (based on the principal balance of the applicable Pari Passu Companion
Loan) of such Nonrecoverable Advance, but only to the extent such party is
liable therefore under the terms of the related Co-Lender Agreement. To the
extent that such amounts together with amounts from the Pool Custodial Account
are insufficient to cover the whole Nonrecoverable Advance, the Master Servicer
shall seek reimbursement for the full amount of such Nonrecoverable Advance from
the holders of such Pari Passu Companion Loans (including any securitization
trust) to the extent permitted under the related Co-Lender Agreement (including
reimbursement out of general funds in the collection account established in
connection with a securitization trust); provided that the allocation of such
reimbursements among all holders of Loans in the related Loan Group (including
any holder that is a securitization trust) shall be as nearly as possible pro
rata (based on the principal balance of the related Loans).
Section 3.29 Additional Matters with respect to the Southland Mall
and Deerbrook Mall Mortgage Loans.
(a) In the event that the applicable Mortgage Loan Seller (a
"Repurchasing Seller") with respect to the Deerbrook Mall Loan or the Southland
Mall Loan repurchases its respective Mortgage Note (a "Repurchased Note"), the
provisions of this Section 3.29 shall apply, and each related Mortgage Loan
Seller has agreed in the related Mortgage Loan Purchase Agreement as follows
with respect to the servicing and administration of the Deerbrook Mall Loan or
Southland Mall Loan, as applicable, in the event of such a repurchase unless and
until such time as both related Mortgage Notes are repurchased or otherwise no
longer part of the Trust, and the related successor holders thereof have entered
into a servicing agreement with respect to such Mortgage Notes. For purposes of
this Section 3.29 only, "Mortgage Note" shall mean each original promissory note
that collectively represents the Mortgage Note (as defined in Article I) with
respect to the Deerbrook Mall Loan or the Southland Mall Loan, respectively, and
shall not be a collective reference to such promissory notes.
(b) Custody of and record title under the Loan documents with
respect to the related Mortgage Loan shall be held exclusively by the Trustee as
provided under this Agreement, except that the Repurchasing Seller shall hold
and retain title to its original Repurchased Note and any related endorsements
thereof.
(i) Payments from the related Mortgagor or any other amounts
received with respect to each Mortgage Note shall be collected as provided
in this Agreement by the Master Servicer and shall be applied on each Due
Date pro rata to each related Mortgage Note based on its respective
Repurchased Percentage Interest, subject to Section 3.29(a)(ii). Payments
or any other amounts received with respect to the related Repurchased Note
shall be held in trust for the benefit of the Repurchasing Seller and
remitted (net of its pro rata share of any Master Servicing Fees, Special
Servicing Fees, and any other amounts due to the Master Servicer or
Special Servicer) to the Repurchasing Seller or its designee by the Master
Servicer on each Distribution Date pursuant to instructions provided by
the Repurchasing Seller and deposited and applied in accordance with this
Agreement, subject to Section 3.29(a)(ii). In the event that such Mortgage
Loan shall becomes an REO Loan, payments or any other amounts received
with respect to such Mortgage Loan shall be collected and shall be applied
on each Due Date pro rata to each related Mortgage Note based on its
respective Repurchased Percentage Interest, subject to Section
3.29(a)(ii).
(ii) In the event that the Master Servicer or the Special Servicer,
as applicable, receives an aggregate payment of less than the aggregate
amount due under such Mortgage Loan at any particular time, the
Repurchasing Seller shall receive from the Master Servicer an amount equal
to the Repurchasing Seller's Repurchased Percentage Interest such payment.
All expenses, losses and shortfalls relating solely to such Mortgage Loan
including, without limitation, losses of principal or interest,
Nonrecoverable Servicing Advances, interest on Servicing Advances, Special
Servicing Fees, Workout Fees and Liquidation Fees (including any such fees
related to the related Mortgage Notes), will be allocated between the
holders of such Mortgage Notes pro rata based on their respective
Repurchased Percentage Interest of such losses and expenses. In no event
shall any costs, expenses, fees or any other amounts related to any Loan
other than the Deerbrook Mall Loan or Southland Mall Loan, as applicable,
be deducted from payments or any other amounts received with respect to
such Mortgage Loan and payable to the Repurchasing Seller. For purposes of
this Section 3.29, "Repurchased Percentage Interest" shall mean the 50%
interest of the applicable Mortgage Loan Seller in the related Mortgage
Loan.
(iii) Such Mortgage Loan shall be serviced for the benefit of the
each Repurchasing Seller and, if applicable, the Certificateholders
pursuant to the terms and conditions of the Agreement in accordance with
the Servicing Standard and in accordance with the provisions herein as if
such Loan was a Serviced Pari Passu Companion Loan. For so long as the
Mortgage Loan shall be serviced by the Master Servicer or the Special
Servicer in accordance with the requirements of the Agreement, the Master
Servicer or the Special Servicer, as applicable, on behalf of the holders
thereof shall administer such Mortgage Loan consistent with the terms of
this Agreement with respect to Serviced Loan Groups. The Repurchasing
Seller shall not be permitted to terminate the Master Servicer or Special
Servicer as servicer or special servicer of the related Repurchased Note.
All rights of the mortgagee under such Mortgage Loan will be exercised by
the Master Servicer or Special Servicer, on behalf of the Trust Fund to
the extent of its interest therein and the Repurchasing Seller in
accordance with the Agreement.
(iv) Such Mortgage Loan shall, consistent with this Agreement, be
serviced as if it were a Serviced Loan Group. Each Repurchasing Seller
shall be treated hereunder as if it were a Companion Loan Noteholder on a
pari passu basis. Funds collected by the Master Servicer or the Special
Servicer, as applicable, and applied to the Mortgage Notes shall be
deposited and disbursed in accordance with the provisions hereof relating
to holders of Companion Loans that are pari passu in right of payment.
Compensation shall be paid to the Master Servicer and the Special Servicer
with respect to the related Repurchased Note as provided in this Agreement
with respect to a Serviced Pari Passu Companion Loan. None of the Trustee,
the Fiscal Agent, the Master Servicer or the Special Servicer shall have
any obligation to make P&I Advances with respect to the related
Repurchased Note. Except as otherwise specified herein, the Master
Servicer and the Special Servicer shall have no reporting requirement with
respect to the related Repurchased Note other than to deliver to the
related Repurchased Noteholder any document required to be delivered to a
Companion Loan Noteholder hereunder.
(c) If either Mortgage Note is considered a Specially Serviced
Mortgage Loan, then both Mortgage Notes shall be a Specially Serviced Mortgage
Loan under this Agreement. The Special Servicer shall cause such related
Repurchased Note to be specially serviced for the benefit of the Repurchasing
Seller in accordance with the terms and provisions set forth in this Agreement
and shall be entitled to any Special Servicing Fee, Workout Fee or Liquidation
Fee payable to the Special Servicer under the Agreement with respect to a
Serviced Companion Loan.
(d) If (A) the Master Servicer shall pay any amount to the
Repurchasing Seller pursuant hereto in the belief or expectation that a related
payment has been made or will be received or collected in connection with either
or both of the Mortgage Loans and (B) such related payment is not received or
collected by the Master Servicer, then the Repurchasing Seller will promptly on
demand by the Master Servicer return such amount to the Master Servicer. If the
Master Servicer determines at any time that any amount received or collected by
the Master Servicer in respect of the Mortgage Loans must be returned to the
related Mortgagor or paid to any other person or entity pursuant to any
insolvency law or otherwise, notwithstanding any other provision of this
Agreement, the Master Servicer shall not be required to distribute any portion
thereof to the Repurchasing Seller, and the Repurchasing Seller will promptly on
demand by the Master Servicer repay, which obligation shall survive the
termination of this Agreement, any portion thereof that the Master Servicer
shall have distributed to the Repurchasing Seller, together with interest
thereon at such rate, if any, as the Master Servicer may pay to the related
Mortgagor or such other person or entity with respect thereto.
(e) Subject to this Agreement, the Master Servicer, or the Special
Servicer, as applicable, on behalf of the holders of the Repurchased Note, shall
have the exclusive right and obligation to (i) administer, service and make all
decisions and determinations regarding the Mortgage Loan, and (ii) enforce the
Loan documents as provided hereunder. Without limiting the generality of the
preceding sentence, the Master Servicer, or Special Servicer, as applicable, may
agree to any modification, waiver or amendment of any term of, forgive interest
on and principal of, capitalize interest on, permit the release, addition or
substitution of collateral securing, and/or permit the release of the related
Mortgagor on or any guarantor of any Mortgage Loan it is required to service and
administer hereunder, without the consent of the Repurchasing Seller, subject,
however, to the terms of this Agreement.
(f) In taking or refraining from taking any action permitted
hereunder, the Master Servicer and the Special Servicer shall each be subject to
the same degree of care with respect to the administration and servicing of the
Mortgage Loans as is consistent with this Agreement; and shall only be liable to
the Repurchasing Seller to the extent set forth herein with respect to any
holder of a Serviced Pari Passu Companion Loan.
(g) In the event that the Trustee, the Fiscal Agent, the Master
Servicer or the Special Servicer has made a Servicing Advance with respect to
such Mortgage Loan which would otherwise be reimbursable to such advancing party
under this Agreement, and such Advance is determined to be a Nonrecoverable
Advance, the Repurchasing Seller shall reimburse the Trustee, the Fiscal Agent,
Master Servicer or the Special Servicer, as applicable, in an amount equal to
its Repurchased Percentage Interest such Nonrecoverable Advance. Notwithstanding
the foregoing, the Repurchasing Seller will not be obligated to reimburse the
Trustee, the Fiscal Agent, Master Servicer or Special Servicer (and amounts due
to the Repurchasing Seller shall not be offset) for Advances or interest thereon
or any amounts related to Loans other than such Mortgage Loan or for P&I
Advances or interest thereon with respect to such Mortgage Loan. To the extent
that the Repurchasing Seller reimburses any such Nonrecoverable Advances and
such amounts are subsequently recovered, the Repurchasing Seller shall receive a
reimbursement from such recovery based on its Repurchased Percentage Interest of
such recovery. This reimbursement right shall not limit the Trustee's, the
Fiscal Agent, Master Servicer's or the Special Servicer's rights to
reimbursement under this Agreement. Notwithstanding anything to the contrary
contained herein, the total liability of the Repurchasing Seller shall not
exceed an amount equal to its Repurchased Percentage Interest.
(h) The Repurchasing Seller shall have the right to assign the
related Repurchased Note; provided that the assignee of the related Repurchased
Note shall agree in writing to be bound by the terms of this Agreement.
(i) The Master Servicer and the Special Servicer shall, in
connection with their servicing and administrative duties under this Agreement,
exercise efforts consistent with the Servicing Standard to execute and deliver,
on behalf of the Repurchasing Seller as a holder of a pari passu interest in the
Loan, any and all financing statements, continuation statements and other
documents and instruments necessary to maintain the lien created by any Mortgage
or other security document related to the Mortgage Loans on the Mortgaged
Properties and related collateral, any and all modifications, waivers,
amendments or consents to or with respect to any Loan documents, and any and all
instruments of satisfaction or cancellation, or of full release or discharge,
and all other comparable instruments with respect to the related Repurchased
Note or related Repurchased Notes and the Mortgaged Property or Mortgaged
Properties all in accordance with, and subject to, the terms of this Agreement.
The Repurchasing Seller agrees to furnish, or cause to be furnished, to the
Master Servicer and the Special Servicer any powers of attorney or other
documents necessary or appropriate to enable the Master Servicer or the Special
Servicer, as the case may be, to carry out its servicing and administrative
duties under this Agreement related to such Mortgage Loan; provided, however,
that the Repurchasing Seller shall not be liable, and shall be indemnified by
the Master Servicer or the Special Servicer, as applicable, for any negligence
with respect to, or misuse of, any such power of attorney by the Master Servicer
or the Special Servicer, as the case may be; and further provided that the
Master Servicer or the Special Servicer, without the written consent of the
Repurchasing Seller, shall not initiate any action in the name of the
Repurchasing Seller without indicating its representative capacity that actually
causes, the Repurchasing Seller to be registered to do business in any state.
The Repurchasing Seller agrees to deliver to the Master Servicer or
the Special Servicer, as applicable the Loan documents related to the related
Repurchased Note or related Repurchased Notes, as applicable, any Requests for
Release and any court pleadings, requests for trustee's sale or other documents
necessary to the foreclosure or trustee's sale in respect of the Mortgaged
Properties or to any legal action or to enforce any other remedies or rights
provided by the Note(s) or the Mortgage(s) or otherwise available at law or
equity with respect to the related Repurchased Note.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall be deemed to
transfer (i) in the case of each Loan REMIC Loan, from the Pooled Collection
Account to the Lower-Tier Distribution Account in respect of the related Loan
REMIC Regular Interest and to the related Grantor Trust Sub-Account in respect
of the related Loan REMIC Residual Interest, and (ii) the Lower-Tier
Distribution Amount from the Lower-Tier Distribution Account to the Upper-Tier
Distribution Account in the amounts and priorities set forth in Section 4.01(i)
with respect to each class of Uncertificated Lower-Tier Interests (other than
the Class OEA-B1 and Class OEA-B2 Interests), and immediately thereafter, shall
make distributions of the Available Distribution Amount from the Upper-Tier
Distribution Account in the following order of priority, satisfying in full, to
the extent required and possible, each priority before making any distribution
with respect to any succeeding priority:
(i) to the Holders of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates, the
Class A-5 Certificates, the Class A-6 Certificates, the Class A-7
Certificates, the Class XP Certificates and the Class XC Certificates, pro
rata (based upon their respective entitlements to interest for such
Distribution Date), up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(ii) to the Holders of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates, the
Class A-5 Certificates, the Class A-6 Certificates and the Class A-7
Certificates in reduction of the Class Principal Balances thereof in an
amount up to the Adjusted Principal Distribution Amount: (A) prior to the
Cross-Over Date, (1) first, to the Holders of the Class A-1 Certificates,
until the outstanding Class Principal Balance of the Class A-1
Certificates has been reduced to zero, (2) second, to the Holders of the
Class A-2 Certificates until the outstanding Class Principal Balance of
the Class A-2 Certificates has been reduced to zero, (3) third, to the
Holders of the Class A-3 Certificates until the outstanding Class
Principal Balance of the Class A-3 Certificates has been reduced to zero,
(4) fourth, to the Holders of the Class A-4 Certificates until the
outstanding Class Principal Balance of the Class A-4 Certificates has been
reduced to zero, (5) fifth, to the Holders of the Class A-5 Certificates
until the outstanding Class Principal Balance of the Class A-5
Certificates has been reduced to zero, (6) sixth, to the Holders of the
Class A-6 Certificates until the outstanding Class Principal Balance of
the Class A-6 Certificates has been reduced to zero, and (7) seventh, to
the Holders of the Class A-7 Certificates until the outstanding Class
Principal Balance of the Class A-7 Certificates has been reduced to zero;
and (B) on or after the Cross-Over Date, to the Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-4 Certificates the Class A-5 Certificates, the Class A-6
Certificates and the Class A-7 Certificates, pro rata (based upon their
respective outstanding Class Principal Balances), until their respective
outstanding Class Principal Balances have been reduced to zero;
(iii) to the Holders of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates the
Class A-5 Certificates, the Class A-6 Certificates and the Class A-7
Certificates, pro rata (based upon the aggregate unreimbursed Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
such Class of Certificates pursuant to Section 4.04(a)), until all amounts
of Realized Losses previously and Additional Trust Fund Expenses allocated
to such Classes, but not previously reimbursed, have been reimbursed in
full;
(iv) to make distributions of interest to the Holders of the Class B
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(v) after the Class Principal Balances of the Class A Certificates
have been reduced to zero, to make distributions of principal to the
Holders of the Class B Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a);
(vi) to make distributions to the Holders of the Class B
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(vii) to make distributions of interest to the Holders of the Class
C Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(viii) after the Class Principal Balance of the Class B Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class C Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(ix) to make distributions to the Holders of the Class C
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(x) to make distributions of interest to the Holders of the Class D
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xi) after the Class Principal Balance of the Class C Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class D Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xii) to make distributions to the Holders of the Class D
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xiii) to make distributions of interest to the Holders of the Class
E Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xiv) after the Class Principal Balance of the Class D Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class E Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xv) to make distributions to the Holders of the Class E
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xvi) to make distributions of interest to the Holders of the Class
F Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xvii) after the Class Principal Balance of the Class E Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class F Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xviii) to make distributions to the Holders of the Class F
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xix) to make distributions of interest to the Holders of the Class
G Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xx) after the Class Principal Balance of the Class F Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class G Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(b));
(xxi) to make distributions to the Holders of the Class G
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxii) to make distributions of interest to the Holders of the Class
H Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxiii) after the Class Principal Balance of the Class G
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class H Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxiv) to make distributions to the Holders of the Class H
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxv) to make distributions of interest to the Holders of the Class
J Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxvi) after the Class Principal Balance of the Class H Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class J Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxvii) to make distributions to the Holders of the Class J
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxviii) to make distributions of interest to the Holders of the
Class K Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxix) after the Class Principal Balance of the Class J Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class K Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxx) to make distributions to the Holders of the Class K
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxi) to make distributions of interest to the Holders of the Class
L Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxxii) after the Class Principal Balance of the Class K
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class L Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxxiii) to make distributions to the Holders of the Class L
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxiv) to make distributions of interest to the Holders of the
Class M Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxv) after the Class Principal Balance of the Class L Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class M Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(b));
(xxxvi) to make distributions to the Holders of the Class M
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxvii) to make distributions of interest to the Holders of the
Class N Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxviii) after the Class Principal Balance of the Class M
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class N Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxxix) to make distributions to the Holders of the Class N
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xl) to make distributions of interest to the Holders of the Class O
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xli) after the Class Principal Balance of the Class N Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class O Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xlii) to make distributions to the Holders of the Class O
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xliii) to make distributions of interest to the Holders of the
Class P Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xliv) after the Class Principal Balance of the Class N Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class P Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xlv) to make distributions to the Holders of the Class P
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xlvi) to the Holders of the Class R-II Certificates, the amount, if
any, of the Available Distribution Amount remaining in the Upper-Tier
Distribution Account with respect to such Distribution Date.
All distributions of interest made in respect of the Class XC and
Class XP Certificates on any Distribution Date pursuant to clause (i) above,
shall be deemed to have been made in respect of all the Components of such
Class, pro rata in accordance with the respective amounts of interest that would
be payable on such Components on such Distribution Date based on the Class XC
Strip Rate and Class XP Strip Rate, as applicable, of such Component multiplied
by its Component Notional Amount, less an allocable portion of any Net Aggregate
Prepayment Interest Shortfall, together with any amounts thereof remaining
unpaid from previous Distribution Dates.
Prior to a monetary or other material "event of default" under the
000 Xxxxxx Xxxxxx Loan Group, on each Distribution Date, to the extent of the
Available OEA-B Distribution Amount for such Distribution Date, the Trustee
shall be deemed to make distributions thereof from the Class OEA-B Sub-Account
to the Upper-Tier Distribution Account, first, in respect of the Class LOEA-B1
Interest and Class LOEA-B2 Interest, as provided in Section 4.01(i), and then in
the following order of priority, satisfying in full, to the extent required and
possible, each priority before making any distribution with respect to the
succeeding priority:
(i) to make distributions of interest to the Holders of the Class
OEA-B1 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(ii) to make distributions of principal to the Holders of the Class
OEA-B1 Certificates (not to exceed the Class Principal Balance of such
Class of Certificates outstanding immediately prior to such Distribution
Date), in an amount equal to its pro rata portion of the Class OEA-B
Principal Distribution Amount for such Distribution Date (based on the
Certificate Principal Balance of the Class OEA-B1 and Class OEA-B2
Certificates);
(iii) to make distributions to the Holders of the Class OEA-B1
Certificates up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(iv) to make distributions of interest to the Holders of the Class
OEA-B2 Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(v) to make distributions of principal to the Holders of the Class
OEA-B2 Certificates (not to exceed the Class Principal Balance of such
Class of Certificates outstanding immediately prior to such Distribution
Date), in an amount equal to its pro rata portion of the Class OEA-B
Principal Distribution Amount for such Distribution Date (based on the
Certificate Principal Balance of the Class OEA-B1 and Class OEA-B2
Certificates);
(vi) to make distributions to the Holders of the Class OEA-B2
Certificates up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed; and
(vii) to the Holders of the Class R-II Certificates, the amount, if
any, of the Available OEA-B Distribution Amount remaining in the
Upper-Tier Distribution Account with respect to such Distribution Date.
Subsequent to, and during the continuation of, a monetary or other material
"event of default" under the 000 Xxxxxx Xxxxxx Loan Group, on each Distribution
Date, to the extent of the Available OEA-B Distribution Amount for such
Distribution Date, the Trustee shall be deemed to make distributions thereof
from the Class OEA-B Sub-Account to the Upper-Tier Distribution Account, first,
in respect of the Class LOEA-B1 Interest and Class LOEA-B2 Interest, as provided
in Section 4.01(i), and then in the following order of priority, satisfying in
full, to the extent required and possible, each priority before making any
distribution with respect to the succeeding priority:
(i) to make distributions of interest to the Holders of the Class
OEA-B1 Certificates up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(ii) to make distributions of principal to the Holders of the Class
OEA-B1 Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Class OEA-B Principal
Distribution Amount for such Distribution Date;
(iii) to make distributions to the Holders of the Class OEA-B1
Certificates up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(iv) to make distributions of interest to the Holders of the Class
OEA-B2 Certificates up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(v) to make distributions of principal to the Holders of the Class
OEA-B2 Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Class OEA-B Principal
Distribution Amount for such Distribution Date;
(vi) to make distributions to the Holders of the Class OEA-B2
Certificates up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed; and
(vii) to the Holders of the Class R-II Certificates, the amount, if
any, of the Available OEA-B Distribution Amount remaining in the
Upper-Tier Distribution Account with respect to such Distribution Date.
(b) On each Distribution Date, the Trustee shall withdraw any
amounts on deposit in the Upper-Tier Distribution Account that represent Net
Prepayment Consideration actually collected on Pooled Mortgage Loans or Pooled
REO Mortgage Loans during the related Collection Period and remitted in respect
of the Uncertificated Lower-Tier Interests pursuant to Section 4.01(j), and
shall distribute such amounts to the Holders of each of the Class A-1, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class B, Class C,
Class D, Class E, Class F, Class G and Class H Certificates entitled to
distributions of principal pursuant to Section 4.01(a) on such Distribution
Date, up to an amount equal to, and pro rata based on, the respective Prepayment
Consideration Entitlements for such Classes of Certificates for such
Distribution Date.
Any Net Prepayment Consideration not otherwise distributed in
respect of the Principal Balance Certificates pursuant to the foregoing
paragraph of this Section 4.01(b) shall be distributed to the Holders of the
Class XC Certificates.
(c) Reserved.
(d) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise provided below, all such distributions with
respect to each Class on each Distribution Date shall be made to the
Certificateholders of the respective Class of record at the close of business on
the related Record Date and shall be made by wire transfer of immediately
available funds to the account of any such Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to (or, in the case of the initial Distribution Date, on) the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. The final distribution on each Certificate (determined, in the case of
a Principal Balance Certificate, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Certificate pursuant to Section 4.04(a)) will be made in a
like manner, but only upon presentation and surrender of such Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution. Prior to any
termination of the Trust Fund pursuant to Section 9.01, any distribution that is
to be made with respect to a Certificate in reimbursement of a Realized Loss or
Additional Trust Fund Expense previously allocated thereto, which reimbursement
is to occur after the date on which such Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Certificateholder that surrendered such Certificate as such
address last appeared in the Certificate Register or to any other address of
which the Trustee was subsequently notified in writing. If such check is
returned to the Trustee, then the Trustee, directly or through an agent, shall
take such reasonable steps to contact the related Holder and deliver such check
as it shall deem appropriate. Any funds in respect of a check returned to the
Trustee shall be set aside by the Trustee and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Trustee has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Trustee shall, subject to applicable law,
distribute the unclaimed funds to the Class R-II Certificateholders.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law. The Trustee and the Depositor shall perform their respective
obligations under each Letter of Representations among the Depositor, the
Trustee and the initial Depository dated as of the Closing Date and pertaining
to the Book-Entry Certificates.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund with respect to the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates with respect to amounts properly
previously distributed on the Certificates.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee receives written notification of or expects that the final distribution
with respect to any Class of Certificates (determined, in the case of a Class of
Principal Balance Certificates, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Class of Certificates pursuant to Section 4.04(a)) will be
made on the next Distribution Date, the Trustee shall, no later than the second
Business Day prior to such Distribution Date, mail to each Holder of record of
such Class of Certificates on such date a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the office of the
Certificate Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
the end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such non-tendering
Certificateholders following the first anniversary of the delivery of such
second notice thereto shall be paid out of such funds. No interest shall accrue
or be payable to any former Holder on any amount held in trust pursuant to this
paragraph. If all of the Certificates as to which notice has been given pursuant
to this Section 4.01(g) shall not have been surrendered for cancellation by the
second anniversary of the delivery of the second notice, the Trustee shall,
subject to applicable law, distribute to the Class R-II Certificateholders all
unclaimed funds and other assets which remain subject thereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholders.
(i) During each Interest Accrual Period, each Uncertificated
Lower-Tier Interest shall accrue interest in an amount equal to the product of
the Uncertificated Principal Balance of each such Uncertificated Lower-Tier
Interest and the Weighted Average Net Mortgage Rate (or in the case of the Class
LOEA-B1 Interest and Class LOEA-B2 Interest, the Class OEA-B Adjusted Net
Mortgage Rate). On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of interest in an
amount equal to the Distributable Certificate Interest for such Distribution
Date (and, to the extent not previously paid, for all prior Distribution Dates,
if any) in respect of its Corresponding Certificate, in each case allocable
among the Corresponding Uncertificated Lower-Tier Interests, pro rata (except as
set forth below), and the portion of the Distributable Certificate Interest for
such Distribution Date (and, to the extent not previously paid, for all prior
Distribution Dates, if any) of the Class XC and Class XP Certificates that is
attributable to the Corresponding Component of such Uncertificated Lower-Tier
Interest, in each case to the extent actually distributable thereon as provided
in Section 4.01(a).
All distributions made in respect of any Class of Principal Balance
Certificates on each Distribution Date pursuant to Section 4.01(a) or Section
9.01 shall be deemed to have first been distributed from the Lower-Tier REMIC to
the Upper-Tier REMIC in respect of its Corresponding Uncertificated Lower-Tier
Interest set forth in the Preliminary Statement hereto; provided, however, that
distributions of principal:
(i) with respect to the Class A-2 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LA-2-1 Interest; second, to the Class LA-2-2
Interest; third, to the Class LA-2-3 Interest; in each case, until their
respective Uncertificated Principal Balances are reduced to zero;
(ii) with respect to the Class A-3 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LA-3-1 Interest; second, to the Class LA-3-2
Interest; third, to the Class LA-3-3 Interest; fourth, to the Class LA-3-4
Interest; and fifth, to the Class LA-3-5 Interest; in each case, until
their respective Uncertificated Principal Balances are reduced to zero;
(iii) with respect to the Class A-4 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LA-4-1 Interest; second, to the Class LA-4-2
Interest; and third, to the Class LA-4-3 Interest; in each case, until
their respective Uncertificated Principal Balances are reduced to zero;
(iv) with respect to the Class A-5 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LA-5-1 Interest; second, to the Class LA-5-2
Interest; third, to the Class LA-5-3 Interest; and fourth, to the Class
LA-5-4 Interest; in each case, until their respective Uncertificated
Principal Balances are reduced to zero;
(v) with respect to the Class A-7 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LA-7-1 Interest; and second, to the Class
LA-7-2 Interest; in each case, until their respective Uncertificated
Principal Balances are reduced to zero;
(vi) with respect to the Class D Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LD-1 Interest; second, to the Class LD-2
Interest; and third, to the Class LD-3 Interest; in each case, until their
respective Uncertificated Principal Balances are reduced to zero;
(vii) with respect to the Class E Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LE-1 Interest; second, to the Class LE-2
Interest; and third, to the Class LE-3 Interest; in each case, until their
respective Uncertificated Principal Balances are reduced to zero;
(viii) with respect to the Class F Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LF-1 Interest; second, to the Class LF-2
Interest; and third, to the Class LF-3 Interest; in each case, until their
respective Uncertificated Principal Balances are reduced to zero;
(ix) with respect to the Class G Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LG-1 Interest; and second, to the Class LG-2
Interest; in each case, until their respective Uncertificated Principal
Balances are reduced to zero;
(x) with respect to the Class H Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LH-1 Interest; second, to the Class LH-2
Interest; and third, to the Class LH-3 Interest; in each case, until their
respective Uncertificated Principal Balances are reduced to zero; and
(xi) with respect to the Class L Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LL-1 Interest; and second, to the Class LL-2
Interest; in each case, until their respective Uncertificated Principal
Balances are reduced to zero.
All distributions made in respect of the Class XC and Class XP
Certificates on each Distribution Date pursuant to Section 4.01(a) or Section
9.01, and allocable to any particular Component of such Class of Certificates in
accordance with the penultimate paragraph of Section 4.01(a), shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in
respect of such Component's Corresponding Uncertificated Lower-Tier Interest.
All distributions of reimbursements of Realized Losses and Additional Trust Fund
Expenses made in respect of any Class of Principal Balance Certificates on each
Distribution Date pursuant to Section 4.01(a) shall be deemed to have first been
distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of its
Corresponding Uncertificated Lower-Tier Interests set forth in the Preliminary
Statement hereto; provided, however, that distributions of reimbursements of
Realized Losses and Additional Trust Fund Expenses (other than with respect to
the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan) shall be made in reverse sequential
order of the priority set forth in this Section 4.01(i) for principal
distributions, up to the amount of Realized Losses and Additional Trust Fund
Expenses previously allocated to a particular Class of Uncertificated Lower-Tier
Interests and with respect to the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan shall
be allocated first to the Class LOEA-B2 Interest and then to the Class LOEA-B1
Interest.
(j) On each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account an aggregate amount equal to all Net Prepayment
Consideration actually collected on the Pooled Mortgage Loans or any Pooled REO
Mortgage Loans during the related Collection Period and shall distribute such
amount in respect of the Class LA-1 Interest by depositing such amount in the
Upper-Tier Distribution Account (notwithstanding that all principal and interest
distributable with respect to the Class LA-1 Interest has been paid in full).
(k) Any amount that remains in the Lower-Tier Distribution Account
or the Class OEA-B Sub-Account on each Distribution Date after distribution of
the Lower-Tier Distribution Amount and any Net Prepayment Consideration, shall
be distributed to the Holders of the Class R-I Certificates (but only to the
extent of the Available Distribution Amount or the Available OEA-B Distribution
Amount, as applicable, for such Distribution Date remaining in the Lower-Tier
Distribution Account or the Class OEA-B Sub-Account, as applicable).
Section 4.02 Statements to Certificateholders; CMSA Loan Periodic
Update File.
(a) On each Distribution Date, the Trustee shall provide or make
available electronically to the Depositor, the Underwriters, the Master
Servicer, the Special Servicer, the Controlling Class Directing Holder, each
Rating Agency, the Holders of each Class of Certificates and, upon their written
request to the Trustee, any Certificate Owners of the Book-Entry Certificates as
may be identified to the reasonable satisfaction of the Trustee, a statement,
substantially in the form attached hereto as Exhibit B (a "Distribution Date
Statement"), which shall also include the CMSA Bond Level File and the CMSA
Collateral Summary File, based on information provided to it by the Master
Servicer and/or the Special Servicer, setting forth, without limitation:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reduction of
the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Interest Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Interest Certificates allocable to
Prepayment Premiums and Yield Maintenance Charges, respectively;
(iv) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reimbursement
of previously allocated Realized Losses and Additional Trust Fund
Expenses;
(v) the Available Distribution Amount for such Distribution Date;
(vi) the aggregate amount of P&I Advances made in respect of the
Mortgage Pool for the prior Distribution Date pursuant to Section 4.03(a)
and/or Section 4.03A(a);
(vii) (A) the aggregate amount of xxxxxxxxxxxx X&X Advances that had
been outstanding with respect to the Mortgage Pool at the close of
business on the related Determination Date and the aggregate amount of any
interest accrued and payable to the Master Servicer, the Trustee or the
Fiscal Agent in respect of such xxxxxxxxxxxx X&X Advances in accordance
with Section 4.03(d) or 4.03A(d) as of the close of business on such
Determination Date and (B) the aggregate amount of unreimbursed Servicing
Advances that had been outstanding with respect to the Mortgage Pool as of
the close of business on the related Determination Date and the aggregate
amount of interest accrued and payable to the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent in respect of such unreimbursed
Servicing Advances in accordance with Section 3.12(b) as of the close of
business on such related Determination Date;
(viii) the aggregate unpaid principal balance of the Mortgage Pool
outstanding as of the close of business on the related Determination Date
and the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(ix) the number, aggregate unpaid principal balance, weighted
average remaining term to maturity and weighted average Mortgage Rate of
the Mortgage Loans (other than REO Loans) as of the close of business on
the related Determination Date;
(x) the number, aggregate unpaid principal balance (as of the close
of business on the related Determination Date and aggregate Stated
Principal Balance (immediately after such Distribution Date) of Mortgage
Loans (A) delinquent 30 to 59 days, (B) delinquent 60 to 89 days, (C)
delinquent 90 or more days, (D) as to which foreclosure proceedings have
been commenced, and (E) as to which, to the knowledge of the Master
Servicer or the Special Servicer, as applicable, bankruptcy proceedings
have commenced in respect of the related Mortgagor;
(xi) as to each Mortgage Loan referred to in the preceding clause
(x) above, (A) the loan number thereof, (B) the Stated Principal Balance
thereof immediately following such Distribution Date and (C) whether the
delinquency is in respect of its Balloon Payment;
(xii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period (other than a payment
in full), (A) the loan number thereof, (B) the nature of the Liquidation
Event and, in the case of a Final Recovery Determination, a brief
description of the basis for such Final Recovery Determination, (C) the
aggregate of all Liquidation Proceeds and other amounts received in
connection with such Liquidation Event (separately identifying the portion
thereof allocable to distributions on the Certificates), and (D) the
amount of any Realized Loss in connection with such Liquidation Event;
(xiii) with respect to any REO Property that was included in the
Trust Fund as of the close of business on the related Determination Date,
the loan number of the related Mortgage Loan, the book value of such REO
Property and the amount of REO Revenues and other amounts, if any,
received with respect to such REO Property during the related Collection
Period (separately identifying the portion thereof allocable to
distributions on the Certificates) and, if available, the Appraised Value
of such REO Property as expressed in the most recent appraisal thereof and
the date of such appraisal;
(xiv) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related Collection
Period, the loan number of such Mortgage Loan and the Stated Principal
Balance of such Mortgage Loan as of the related Acquisition Date;
(xv) with respect to any REO Property included in the Trust Fund as
to which a Final Recovery Determination was made during the related
Collection Period, (A) the loan number of the related Mortgage Loan, (B) a
brief description of the basis for the Final Recovery Determination, (C)
the aggregate of all Liquidation Proceeds and other amounts received with
respect to such REO Property during the related Collection Period
(separately identifying the portion thereof allocable to distributions on
the Certificates), (D) the amount of any Realized Loss in respect of the
related REO Loan in connection with such Final Recovery Determination and
(E), if available, the Appraised Value of such REO Property as expressed
in the most recent appraisal thereof and the date of such appraisal;
(xvi) the Distributable Certificate Interest and Accrued Certificate
Interest in respect of each Class of Regular Interest Certificates for
such Distribution Date or the related Interest Accrual Period, as
applicable;
(xvii) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Interest Certificates after giving effect to the
distributions made on such Distribution Date, and if the full amount of
the Principal Distribution Amount was not distributed on such Distribution
Date, the portion of the shortfall affecting each Class of Principal
Balance Certificates;
(xviii) the Pass-Through Rate for each Class of Regular Interest
Certificates for such Distribution Date;
(xix) the Principal Distribution Amount for such Distribution Date
(and, in the case of any Principal Prepayment or other unscheduled
collection of principal received during the related Collection Period, the
loan number for the related Mortgage Loan and the amount of such
prepayment or other collection of principal);
(xx) the aggregate of all Realized Losses incurred during the
related Collection Period and from the Closing Date and all Additional
Trust Fund Expenses (with a description thereof) incurred during the
related Collection Period and from the Closing Date;
(xxi) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that remain unallocated immediately following such Distribution
Date;
(xxii) the Class Principal Balance of each Class of Principal
Balance Certificates and the Notional Amount of each Class of the Class X
Certificates, outstanding immediately before and immediately after such
Distribution Date, separately identifying any reduction therein due to the
allocation of Realized Losses and Additional Trust Fund Expenses on such
Distribution Date;
(xxiii) the Certificate Factor for each Class of Regular Interest
Certificates immediately following such Distribution Date;
(xxiv) the aggregate amount of any interest on Advances in respect
of the Mortgage Pool paid to the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent during the related Collection Period in
accordance with Section 3.12(b), Section 4.03(d) and/or Section 4.03A(d);
(xxv) (A) the loan number for each Required Appraisal Loan and any
related Appraisal Reduction Amount (including an itemized calculation
thereof) as of the related Determination Date and (B) the aggregate
Appraisal Reduction Amount for all Required Appraisal Loans as of the
related Determination Date;
(xxvi) on a cumulative basis from the Cut-off Date, the number,
aggregate Stated Principal Balance immediately after such Distribution
Date (in the case of subclauses (A), (B) and (E)), aggregate Cut-off Date
Balance (in the case of subclauses (C) and (D)), weighted average
extension period (except in the case of subclause (B) and which shall be
zero in the case of subclause (C)), and weighted average anticipated
extension period (in the case of subclause (B)) of Mortgage Loans (A) as
to which the maturity dates have been extended, (B) as to which the
maturity dates are in the process of being extended, (C) that have paid
off and were never extended, (D) as to which the maturity dates had
previously been extended and have paid off and (E) as to which the
maturity dates had been previously extended and are in the process of
being further extended;
(xxvii) the original and then current credit support levels for each
Class of Regular Interest Certificates;
(xxviii) the original and then current ratings, if any, for each
Class of Regular Interest Certificates;
(xxix) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected (A) during the related Collection Period and
(B) since the Closing Date;
(xxx) (A) the aggregate amount of servicing compensation in respect
of the Mortgage Pool (separately identifying the amount of each category
of compensation) paid to the Master Servicer, the Special Servicer and, if
payable directly out of the Trust Fund without a reduction in the
servicing compensation otherwise payable to the Master Servicer or the
Special Servicer, to each Sub-Servicer, during the related Collection
Period, and (B) such other information as the Trustee is required by the
Code or other applicable law to furnish to enable Certificateholders to
prepare their tax returns; and
(xxxi) the amounts, if any, actually distributed with respect to the
Class R-I and Class R-II Certificates on such Distribution Date.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (vi) through (xv), (xix), (xx),
(xxiv), (xxv), (xxvi), (xxix) and (xxx) above, insofar as the underlying
information is solely within the control of the Special Servicer or the Master
Servicer, the Trustee may, absent manifest error, conclusively rely on the
reports to be provided by the Special Servicer or the Master Servicer.
The Trustee shall forward electronically a copy of each Distribution
Date Statement to the Depository. The Trustee shall make available each month,
to Certificateholders, Certificate Owners, the Underwriters, the Rating
Agencies, the Controlling Class Directing Holder, any party hereto or any Person
identified by any Certificateholder or Certificate Owner as a prospective
transferee, via the Trustee's internet website, all Certificateholder Reports
and any additional files containing substantially similar information in an
alternative format and, with the consent or at the direction of the Depositor,
such other information regarding the Certificates and/or the Mortgage Loans as
the Trustee may have in its possession. The Trustee will make no representations
or warranties as to the accuracy or completeness of such documents and will
assume no responsibility therefor.
The Trustee's internet website shall initially be located at
xxx.xxxxxxxx.xxx or at such other address as shall be specified by the Trustee
from time to time in the Distribution Date Statement and in one or more written
notices delivered to the other parties hereto, the Controlling Class Directing
Holder (if any), the Certificateholders and the Rating Agencies. In connection
with providing access to the Trustee's internet website, the Trustee may require
the acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
The Master Servicer may, but is not required to, make available each
month, to Certificateholders, Certificate Owners (that have been confirmed as
such by the Trustee), the Controlling Class Directing Holder, the Underwriters,
the Rating Agencies or any party hereto, the Certificateholder Reports, on its
internet website. The Master Servicer will make no representations or warranties
as to the accuracy or completeness of any report not prepared by it and will
assume no responsibility for any information for which it is not the original
source.
The Master Servicer's internet website shall initially be located at
"xxx.xxxxxxxx.xxx" or at such other address as shall be specified by the Master
Servicer from time to time in one or more written notices delivered to the other
parties hereto, the Controlling Class Directing Holder (if any), the
Certificateholders and the Rating Agencies. In connection with providing access
to the Master Servicer's internet website, the Master Servicer may require the
acceptance of a disclaimer. The Master Servicer shall not be liable for the
dissemination of information to Certificateholders and Certificate Owners in
accordance with this Agreement.
If the Master Servicer determines, in its reasonable judgment, that
information regarding the Mortgage Loans and REO Properties (in addition to the
information otherwise required to be contained in the CMSA Investor Reporting
Package) should be disclosed to Certificateholders and Certificate Owners, then
(A) the Master Servicer shall so notify the Trustee, set forth such information
in an additional report, in a format reasonably acceptable to the Trustee and
the Master Servicer (the "Supplemental Report"), and deliver such report to the
Trustee upon preparation thereof or simultaneously with the delivery of its
reports described in Section 3.13(d); and (B) the Trustee shall include the
Supplemental Report in or as an attachment to the Distribution Date Statement
for the following Distribution Date and, to the extent required by Section
8.15(a), shall file such Supplemental Report, together with such Distribution
Date Statement and the other corresponding Servicer Reports, on the related
Current Report on Form 8-K and/or the related Annual Report on Form 10-K, as
applicable, in accordance with Section 8.15(a).
During any period that reports are required to be filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Exchange
Act, each recipient of a Certificateholder Report, a CMSA NOI Adjustment
Worksheet or a CMSA Operating Statement Analysis Report shall be deemed to have
agreed to keep confidential the information therein until such statement or
report is filed with the Commission, and each Certificateholder Report, CMSA NOI
Adjustment Worksheet and CMSA Operating Statement Analysis Report shall bear a
legend to the effect that: "Until this statement/report is filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Securities
Exchange Act of 1934, as amended, the recipient hereof shall be deemed to keep
the information contained herein confidential and such information will not,
without the prior consent of the Master Servicer or the Trustee, be disclosed by
such recipient or by its officers, directors, partners, employees, agents or
representatives in any manner whatsoever, in whole or in part."
Absent manifest error of which it has actual knowledge, none of the
Master Servicer, the Special Servicer or the Trustee shall be responsible for
the accuracy or completeness of any information supplied to it by a Mortgagor,
the Depositor (including information in the Prospectus Supplement), any Mortgage
Loan Seller or third party that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer, the
Special Servicer or the Trustee, as applicable, pursuant to this Agreement. None
of the Trustee, the Master Servicer or the Special Servicer shall have any
obligation to verify the accuracy or completeness of any information provided by
a Mortgagor, any Mortgage Loan Seller, a third party or each other.
Within a reasonable period of time after the end of each calendar
year the Trustee shall send to each Person who at any time during the calendar
year was a Certificateholder of record, a report summarizing on an annual basis
(if appropriate) the items relating to distributions of interest (including
Prepayment Premiums and Yield Maintenance Charges) and principal to
Certificateholders during such calendar year set forth in the Distribution Date
Statements and such other information as may be required to enable such
Certificateholders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund. Such
requirement shall be deemed to be satisfied to the extent such information is
provided pursuant to applicable requirements of the Code from time to time in
force.
Upon receipt of notice from the Depositor that the Underwriters have
sold the Non-Registered Certificates to unaffiliated third parties, the Trustee
shall make available electronically or, if so requested, forward by hard copy,
on each Distribution Date, to (i) the Trepp Group (at 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other address as the Trepp Group may
designate), (ii) Intex Solutions, Inc. (at 00 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, or such other address as Intex Solutions, Inc. may
hereafter designate), (iii) Charter Research Corporation (at 000 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or such other address as Charter Research
Corporation may hereafter designate), and (iv) any other similar third party
information provider, a copy of the reports made available to the Holders of the
Certificates on such Distribution Date as described above.
Upon written request of the Depositor or any Underwriter, without
payment of any fee, and upon written request of any Certificateholders or any
other Person, together with payment of a reasonable fee specified by the
Trustee, the Trustee shall provide any statements, reports and/or information
contemplated by this Section 4.02(a) electronically to such party (such
electronic distribution and such statements, reports, and/or information thereon
to bear such appropriate disclaimers and qualifications as the Depositor and the
Trustee shall determine in their reasonable discretion).
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book-Entry
Certificates, then the Trustee shall forward such statements, reports and/or
other written information to such Certificate Owner as provided above, upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or telecopy from the Trustee; provided that the cost of such
overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives, in the format required by this Agreement, the necessary underlying
information from the Master Servicer or the Special Servicer, as applicable, and
shall not be liable for any failure to deliver any thereof on the prescribed due
dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Master Servicer or
the Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Mortgagor and the failure of the Trustee, Master
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
The information to be furnished by the Trustee to the
Certificateholders pursuant to Sections 4.02(a) and (b) shall not limit the
Trustee in furnishing any such information to other Persons to whom it
determines such disclosure to be appropriate and shall not limit the Trustee in
furnishing to Certificateholders or to any Person any other information with
respect to the Mortgage Loans, the Mortgaged Properties or the Trust Fund as may
be provided to it by the Depositor, the Master Servicer or the Special Servicer
or gathered by it in any investigation or other manner from time to time (such
information, other than as described in Sections 4.02(a) and (b), is referred to
herein as "Additional Information") as it may reasonably deem necessary or
appropriate from time to time, provided that (A) the Trustee shall give the
Depositor three Business Days' advance notice before doing so, (B) any such
Additional Information shall only be furnished with the consent or at the
request of the Depositor (except pursuant to clause (E) below), (C) the Trustee
shall be entitled to indicate the source of all information furnished by it, and
the Trustee may affix thereto any disclaimer it deems appropriate in its
reasonable discretion, (D) the Trustee shall notify Certificateholders of the
availability of any such information in any manner as it, in its sole
discretion, may determine, and (E) this provision shall not prevent the Trustee,
whether with or without the consent of the Depositor, from furnishing
information with respect to the Trust Fund and its administration thereof to any
Person, if it reasonably determines that the furnishing of such information is
required by applicable law. The Trustee shall forward to the Depositor any
requests for Additional Information which, for their fulfillment, require the
consent of the Depositor. Nothing herein shall be construed to impose upon the
Trustee any obligation or duty to furnish or distribute any Additional
Information to any Person in any instance.
(b) Not later than 1:00 p.m. (New York City time) on the second
Business Day prior to each Distribution Date, the Master Servicer shall furnish
to the Trustee, and upon request, to the Depositor, the Underwriters and the
Special Servicer, by electronic transmission (or in such other form to which the
Trustee or the Depositor, as the case may be, and the Master Servicer may
agree), an accurate and complete CMSA Loan Periodic Update File providing the
required information for the Mortgage Loans and any successor REO Mortgage Loans
as of the related Determination Date.
In the performance of its obligations set forth in Section 4.06 and
its other duties hereunder, the Trustee may conclusively rely on the CMSA Loan
Periodic Update File provided to it by the Master Servicer, and the Trustee
shall not be responsible to recompute, recalculate or verify the information
provided to it by the Master Servicer. In the case of information to be
furnished by the Master Servicer to the Trustee pursuant to this Section
4.02(b), insofar as such information is solely within the control of the Special
Servicer, the Master Servicer (if other than the Special Servicer or an
Affiliate thereof) shall have no obligation to provide such information until it
has received such information from the Special Servicer, shall not be in default
hereunder due to a delay in providing the CMSA Loan Periodic Update File caused
by the Special Servicer's failure to timely provide any report required under
this Agreement and may, absent actual knowledge of an error therein,
conclusively rely on the reports to be provided by the Special Servicer. The
Master Servicer may conclusively rely on any information provided by the
Depositor or any Mortgagor with respect to the CMSA Loan Periodic Update File,
CMSA Loan Setup File, CMSA Property File and CMSA Financial File.
Section 4.03 P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03(c)
below, satisfy its obligations to make any required P&I Advances with respect to
the related Distribution Date in respect of the Mortgage Pool (other than the
Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect
thereto), first, by transferring to the Trustee for deposit in the Distribution
Account amounts then held in the Pool Custodial Account for future distribution
to Certificateholders in subsequent months in discharge of such obligations, and
second, by remitting its own funds to the Trustee for deposit in a Distribution
Account in an amount equal to the remaining portion of such required P&I
Advances. Any amounts held in the Pool Custodial Account for future distribution
and so used to make P&I Advances shall be appropriately reflected in the Master
Servicer's records and replaced by the Master Servicer by deposit in the Pool
Custodial Account on or before the next succeeding Determination Date (to the
extent not previously replaced through the deposit of Late Collections of the
delinquent principal and interest in respect of which such P&I Advances were
made). If, as of 4:00 p.m., New York City time, on any Master Servicer
Remittance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03(a) (and shall not
have delivered to the Trustee the requisite Officer's Certificate and
documentation related to a determination of nonrecoverability of a P&I Advance),
then the Trustee shall provide notice of such failure to a Servicing Officer of
the Master Servicer by facsimile transmission sent to telecopy no. (704)
593-7740 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone no. (000) 000-0000 or (704)
593-7867 (or such alternative number provided by the Master Servicer to the
Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New
York City time, on such Master Servicer Remittance Date. If after such notice by
facsimile, the Trustee does not receive the full amount of such P&I Advances by
11:00 a.m., New York City time, on the related Distribution Date, then the
Trustee (or the Fiscal Agent on its behalf) shall make the portion of such P&I
Advances that was required to be, but was not, made by the Master Servicer on
such Master Servicer Remittance Date. If the Trustee fails to make any such P&I
Advance on the related Distribution Date, but the Fiscal Agent makes such P&I
Advance on such date, then the Trustee shall be deemed not to be in default
hereunder.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to the
first paragraph of Section 4.03(a) in respect of any Distribution Date shall,
subject to Section 4.03(c) below, equal the aggregate of all Monthly Payments
(other than Balloon Payments) and any Assumed Monthly Payments, in each case net
of related Master Servicing Fees and any related Workout Fees, due or deemed
due, as the case may be, in respect of the Mortgage Loans (including Balloon
Mortgage Loans delinquent as to their respective Balloon Payments) and any REO
Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage
Loans or any successor REO Mortgage Loans with respect thereto) on their
respective Due Dates during the related Collection Period, in each case to the
extent such amount was not paid by or on behalf of the related Mortgagor or
otherwise collected (including as net income from REO Properties) as of the
close of business on the related Determination Date; provided that if it is
determined that an Appraisal Reduction Amount exists with respect to any such
Mortgage Loan or REO Mortgage Loan, then, in the event of subsequent
delinquencies thereon, the amount of each P&I Advance, if any, required to be
made in respect of such Mortgage Loan or REO Mortgage Loan, as the case may be,
during the period that such Appraisal Reduction Amount continues to exist, shall
be reduced to equal the product of (x) the amount of the subject P&I Advance
that would otherwise be required without regard to this proviso, multiplied by
(y) a fraction, the numerator of which is equal to the Stated Principal Balance
of such Mortgage Loan or REO Mortgage Loan, as the case may be, net of such
Appraisal Reduction Amount, and the denominator of which is equal to the Stated
Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may
be.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made under this Section 4.03 if such P&I Advance would,
if made, constitute a Nonrecoverable Advance, as determined by the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The
determination by the Master Servicer or Special Servicer that a P&I Advance has
become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made
pursuant to this Section 4.03, would constitute a Nonrecoverable P&I Advance,
shall be evidenced by an Officer's Certificate delivered to the Trustee, the
Special Servicer (in the case of a determination made by the Master Servicer),
the Master Servicer (in the case of a determination made by the Special
Servicer), the Fiscal Agent and the Depositor on or before the related Master
Servicer Remittance Date, setting forth the basis for such determination,
together with any other information that supports such determination, including
an appraisal (which appraisal shall have been conducted by an Independent
Appraiser within the 12-month period preceding such determination in accordance
with the standards of the Appraisal Institute taking into account the factors
specified in Section 3.19), related Mortgagor operating statements and financial
statements, budgets and rent rolls of the related Mortgaged Properties (to the
extent available and/or in the Master Servicer's or the Special Servicer's
possession), engineers' reports, environmental surveys and any similar reports
that the Master Servicer or Special Servicer may have obtained consistent with
the Servicing Standard and at the expense of the Trust Fund, that support such
determination by the Master Servicer or Special Servicer. If, in connection with
the foregoing, it is necessary for the Master Servicer to obtain an appraisal,
the Master Servicer shall so notify the Special Servicer and consult with the
Special Servicer regarding such appraisal. The Trustee and the Fiscal Agent
shall be entitled to rely, conclusively, on any determination by the Master
Servicer or the Special Servicer that a P&I Advance, if made, would be a
Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has
failed to make a P&I Advance for reasons other than a determination by the
Master Servicer or Special Servicer that such P&I Advance would be
Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance
within the time periods required by Section 4.03(a) unless the Trustee or the
Fiscal Agent, in its good faith, reasonable discretion, makes a determination
prior to the times specified in Section 4.03(a) that such P&I Advance would be a
Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I
Advance would be a Nonrecoverable Advance or that a P&I Advance previously made
is a Nonrecoverable Advance, the Special Servicer shall report its determination
to the Master Servicer and the Master Servicer shall be entitled to conclusively
rely on such determination. In addition, the Master Servicer and Special
Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of
prior P&I Advances on the applicable Mortgage Loan that have not been repaid by
the related Mortgagor for the purposes of nonrecoverability determinations as if
such amounts were xxxxxxxxxxxx X&X Advances.
(d) The Master Servicer, the Trustee and the Fiscal Agent shall each
be entitled to receive interest at the Reimbursement Rate in effect from time to
time, compounded annually, accrued on the amount of each P&I Advance made
thereby under this Section 4.03 (with its own funds) for so long as such P&I
Advance is outstanding; provided that, if the grace period for the delinquent
Monthly Payment as to which a P&I Advance was made under this Section has not
elapsed as of the time such P&I Advance was made, then the total interest so
accrued on such P&I Advance prior to the expiration of such grace period, shall
not exceed the amount of Default Charges, if any, collected in connection with
the late payment of such delinquent Monthly Payment; and provided, further that,
in no event shall interest so accrue on any P&I Advance as to which the
corresponding Late Collection was received by the Master Servicer or a
Sub-Servicer on its behalf as of the related Master Servicer Remittance Date.
Interest so accrued on any P&I Advance made under this Section shall be payable
in accordance with the terms of Section 3.05 and Section 3.05A.
Xxxxxxx 0.00X. X&X Advances on the Loan Group Trust Mortgage Loans
and 000 Xxxxxx Xxxxxx Pari Passu Companion Loans.
(a) With respect to the P&I Advances and the Loan Groups:
(i) in the case of the Tier 2 Loan Groups and Tier 3 Loan Groups,
the Master Servicer shall make P&I Advances with respect to the related
Loan Group Trust Mortgage Loans, but will not make P&I Advances with
respect to the related Companion Loans.
(ii) in the case of the 000 Xxxxxx Xxxxxx Loan Group, the Master
Servicer shall make P&I Advances with respect to the 000 Xxxxxx Xxxxxx
Pooled Trust Loan and each of the 000 Xxxxxx Xxxxxx Pari Passu Companion
Loans that are assets in a securitization that is rated by S&P, Xxxxx'x
and/or Fitch Ratings (but not the 000 Xxxxxx Xxxxxx Subordinate Loans);
(iii) in the case of the 000 Xxxx Xxxxxx Loan Group, Xxxxx Fargo
Tower Loan Group and 1801 K Street Loan Group, the Master Servicer shall
make P&I Advances only (1) with respect to the related Loan Group Trust
Mortgage Loan and (2) if such P&I Advance was required to be made by the
GCCFC C2 Master Servicer, pursuant to the GCCFC C2 PSA, and the GCCFC C2
Master Servicer failed to make such P&I Advance;
(iv) in the case of the Water Tower Place Loan Group, the 5 Houston
Center Loan Group and the DDR Portfolio Loan Group, the Master Servicer
shall make P&I Advances with respect to the related Loan Group Trust
Mortgage Loan unless it has determined that such P&I Advance would be a
Nonrecoverable P&I Advance.
The Master Servicer shall, subject to Section 4.03A(c) below,
satisfy its obligations to make any required P&I Advance on each Master Servicer
Remittance Date (with respect to the Loan Group Trust Mortgage Loans) and Loan
Group Remittance Date (with respect to the related Companion Loans, as required)
in respect of (i) the Loan Group Trust Mortgage Loans (excluding the 000 Xxxxxx
Xxxxxx Non-Pooled Trust Loan) and (ii) the Serviced Pari Passu Companion Loans,
from and after the date on which such Serviced Pari Passu Companion Loan is an
asset in a securitization that is rated by S&P, Xxxxx'x or Fitch Ratings, by
depositing into the related Loan Group Custodial Account (or in the case of any
Loan Group Trust Mortgage Loan that is not a Serviced Loan, by depositing in the
Pool Custodial Account), out of amounts held in such Custodial Account for
future distribution (subject to replacement of such amounts by the following
Master Servicer Remittance Date) and, if such amounts are insufficient, then out
of its own funds, the amount of such P&I Advance required to be made. P&I
Advances with respect to (i) any Loan Group Trust Mortgage Loan (excluding the
000 Xxxxxx Xxxxxx Non-Pooled Trust Loan) shall be made no later than 2:00 p.m.,
New York City time, on each Master Servicer Remittance Date and (ii) any
Serviced Pari Passu Companion Loan that is an asset in a securitization, by 2:00
p.m., New York City time, on the related Loan Group Remittance Date. If, as of
4:00 p.m., New York City time, on any Master Servicer Remittance Date, the
Master Servicer shall not have made any P&I Advance required to be made on such
date pursuant to this Section 4.03A(a) in respect of the Loan Group Trust
Mortgage Loans (excluding the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan) (and the
Master Servicer shall not have delivered to the Trustee the requisite Officer's
Certificate and documentation related to a determination of nonrecoverability of
a P&I Advance), then the Trustee shall provide notice of such failure to a
Servicing Officer of the Master Servicer by facsimile transmission sent to
telecopy no. (000) 000-0000 (or such alternative number provided by the Master
Servicer to the Trustee in writing) and by telephone at telephone no. (704)
000-0000 or (000) 000-0000 (or such alternative number provided by the Master
Servicer to the Trustee in writing) as soon as possible, but in any event before
5:00 p.m., New York City time, on such Master Servicer Remittance Date. The
Trustee shall also provide a copy of such notice to the master servicer of the
securitization holding the related Pari Passu Companion Loan, such obligation
being contingent upon such Master Servicer having previously provided notice to
the Trustee; provided, however that the Trustee has actual knowledge that the
related Pari Passu Companion Loan is included in such securitization based upon
a notice received from such master servicer. If after such notice, the Trustee
does not receive the full amount of such P&I Advance(s) by 11:00 a.m., New York
City time, on the related Distribution Date, then the Trustee (or the Fiscal
Agent on its behalf) shall make the portion of such P&I Advances that was
required to be, but was not, made by the Master Servicer in respect of the Loan
Group Trust Mortgage Loans (excluding the 000 Xxxxxx Xxxxxx Non-Pooled Trust
Loan) or any successor REO Mortgage Loans with respect thereto on the preceding
Master Servicer Remittance Date. If the Trustee fails to make any such P&I
Advance on the related Distribution Date, but the Fiscal Agent makes such P&I
Advance on such date, then the Trustee shall be deemed not to be in default
hereunder. In addition, if, as of 4:00 p.m., New York City time, on any Loan
Group Remittance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03A(a) in respect of
a Pari Passu Companion Loan that is an asset of a securitization, the Master
Servicer shall provide notice of such failure to the master servicer of the
securitization holding the related Pari Passu Companion Loan.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to the
first paragraph of Section 4.03A(a) in respect of any Distribution Date shall,
subject to Section 4.03A(c) below, equal the aggregate of all Monthly Payments
(other than Balloon Payments) and any Assumed Monthly Payments, in each case net
of related Master Servicing Fees (and net of any servicing fees due to any
related Lead Master Servicer or Subsequent Master Servicer) and any related
Workout Fees, due or deemed due, as the case may be, in respect of the Loan
Group Trust Mortgage Loans (excluding the 000 Xxxxxx Xxxxxx Non-Pooled Trust
Loan) and any related Serviced Pari Passu Companion Loans as to which the Master
Servicer is required to make such Advance (including Balloon Loans delinquent as
to their respective Balloon Payments) and any successor REO Loans to such Loans
on their respective Due Dates during the related Collection Period, (i) in each
case, to the extent such amount was not paid by or on behalf of the related
Mortgagor or otherwise collected (including as net income from REO Properties)
as of the close of business on the related Determination Date, or (ii) in the
case of the 000 Xxxx Xxxxxx Xxxxx Xxxx, Xxxxx Fargo Tower Trust Loan and 1801 K
Street Trust Loan, to the extent such amount was required to be advanced by the
GCCFC C2 Master Servicer, pursuant to the GCCFC C2 PSA and the GCCFC C2 Master
Servicer failed to make such advance by noon (New York City time) on the Master
Servicer Remittance Date; provided that if it is determined that an Appraisal
Reduction Amount exists with respect to any such Loan Group or REO Loan, then,
in the event of subsequent delinquencies thereon, the amount of each P&I
Advance, if any, required to be made in respect of such Loan Group or REO Loan,
as the case may be, during the period that such Appraisal Reduction Amount
continues to exist, shall be reduced to equal the product of (x) the amount of
the subject P&I Advance that would otherwise be required without regard to this
proviso, multiplied by (y) a fraction, the numerator of which is equal to the
Stated Principal Balance of the Loan Group Trust Mortgage Loan(s) (excluding the
000 Xxxxxx Xxxxxx Non-Pooled Trust Loan) and any related Pari Passu Companion
Loan(s) (or related REO Loan), net of the portion of the applicable Appraisal
Reduction Amount allocated to such Loan Group Trust Mortgage Loan(s) (excluding
the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan) and any related Pari Passu
Companion Loan(s), and the denominator of which is equal to the Stated Principal
Balance of such Loan Group Trust Mortgage Loan(s) (excluding the 000 Xxxxxx
Xxxxxx Non-Pooled Trust Loan) and any related Pari Passu Companion Loan(s) (or
related Mortgage Loan or REO Mortgage Loan) or, with respect to any Non-Serviced
Trust Loan, without regard to the balances of the related Pari Passu Companion
Loans if the Lead Master Servicer has performed such calculations and reported
the Appraisal Reduction Amount to the Master Servicer. For purposes of the
preceding sentence Appraisal Reduction Amounts with respect to a Loan Group
shall be applied first to the related Subordinate Companion Loan, if any, (or in
the case of the 000 Xxxxxx Xxxxxx Loan, to the 000 Xxxxxx Xxxxxx Subordinate
Companion Loan and 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan, pro rata) until its
balance is reduced to zero and then to the related Loan Group Trust Mortgage
Loan (excluding the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan) and, if applicable,
the related Pari Passu Companion Loan(s) pro rata, based on their respective
outstanding principal balances (and, in the case of a Non-Serviced Loan Group,
to the extent the applicable Lead Master Servicer has not notified the Master
Servicer that it previously applied such amounts).
With respect to P&I Advances and the Non-Serviced Trust Loans, the
Master Servicer, the Trustee and the Fiscal Agent shall be entitled to rely on
the "appraisal reduction amount" calculated by the applicable Lead Special
Servicer or the applicable Lead Master Servicer in accordance with the terms of
the applicable Lead PSA.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made under this Section 4.03A with respect to Loan Group
Trust Mortgage Loans or any Serviced Pari Passu Companion Loans, or related REO
Loans if such P&I Advance would if made, constitute a Nonrecoverable P&I
Advance, as determined by the Master Servicer, the Special Servicer, the Trustee
or the Fiscal Agent. The determination by the Master Servicer or Special
Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any
proposed P&I Advance, if made pursuant to this Section 4.03A with respect to any
Loan Group Trust Mortgage Loan or any Serviced Pari Passu Companion Loan, or
related REO Loan, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officer's Certificate delivered to any Lead Master Servicer, any
Lead Special Servicer, the Trustee, the Special Servicer (in the case of a
determination made by the Master Servicer), the Master Servicer (in the case of
a determination made by the Special Servicer) on or prior to the next Master
Servicer Remittance Date and to the Companion Loan Noteholders (and the related
Subsequent Master Servicer, if applicable) for such Serviced Pari Passu
Companion Loan and Lead Master Servicer, any Lead Special Servicer for a
Non-Serviced Trust Loan within two Business Days after such determination was
made, setting forth the basis for such determination, together with any other
information that supports such determination, including except with respect to
any Non-Serviced Trust Loan, an appraisal (which appraisal shall be an expense
payable out of the related Loan Group Custodial Account or, if funds therein are
insufficient therefor or in the case of a Non-Serviced Trust Loan, from the Pool
Custodial Account) and shall have been conducted by an Independent Appraiser in
accordance with the standards of the Appraisal Institute, within the twelve
months preceding such determination of nonrecoverability), Mortgagor operating
statements and financial statements, budgets and rent rolls of the Mortgaged
Property (to the extent available and/or in the Master Servicer's or the Special
Servicer's possession), engineers' reports, environmental surveys and any
similar reports that the Master Servicer or Special Servicer may have obtained
consistent with the Servicing Standard and that support such determination by
the Master Servicer or Special Servicer. If, in connection with the foregoing,
it is necessary for the Master Servicer to obtain an appraisal, the Master
Servicer shall so notify the Special Servicer and consult with the Special
Servicer regarding such appraisal. The Trustee and the Fiscal Agent shall be
entitled to rely, conclusively, on any determination by the Master Servicer or
Special Servicer that a P&I Advance to be made in respect of the Loan Group
Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto,
if made, would be a Nonrecoverable Advance; provided, however, that if the
Master Servicer has failed to make such a P&I Advance with respect to the Loan
Group Trust Mortgage Loans or any successor REO Mortgage Loan for reasons other
than a determination by the Master Servicer or Special Servicer that such P&I
Advance would be Nonrecoverable Advance, the Trustee or Fiscal Agent shall make
such Advance within the time periods required by Section 4.03A(a) unless the
Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a
determination prior to the times specified in Section 4.03A(a) that such P&I
Advance would be a Nonrecoverable P&I Advance. If the Special Servicer
determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I
Advance previously made is a Nonrecoverable Advance, the Special Servicer shall
report such determination to the Master Servicer and the Master Servicer shall
be entitled to conclusively rely on such determination. In addition, the Master
Servicer and Special Servicer shall consider Workout-Delayed Reimbursement
Amounts in respect of prior P&I Advances on the applicable Loan that have not
been repaid by the related Mortgagor for the purposes of nonrecoverability
determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(d) The Master Servicer, the Trustee and the Fiscal Agent shall be
entitled to receive interest at the Reimbursement Rate in effect from time to
time, compounded annually, accrued on the amount of each P&I Advance made
thereby in respect of a Loan Group Trust Mortgage Loan or any Serviced Pari
Passu Companion Loan or related REO Loans under this Section 4.03A (with its own
funds) for so long as such P&I Advance is outstanding; provided that, if the
grace period for the delinquent Monthly Payment as to which a P&I Advance was
made under this Section 4.03A has not elapsed as of the time such P&I Advance
was made, then the total interest so accrued on such P&I Advance prior to the
expiration of such grace period, shall not exceed the amount of Default Charges,
if any, collected in connection with the late payment of such delinquent Monthly
Payment; and provided, further, that in no event shall interest so accrue on any
P&I Advance in respect of a Loan Group Trust Mortgage Loan or any Serviced Pari
Passu Companion Loan or related REO Loan as to which the corresponding Late
Collection was received by the Master Servicer or a Sub-Servicer on its behalf
as of the Master Servicer Remittance Date or Loan Group Remittance Date, as
applicable, on which such P&I Advance was made. Interest so accrued on any P&I
Advance made under this Section shall be payable in accordance with the terms of
Section 3.05 and 3.05A.
None of the Master Servicer, Special Servicer, Trustee or the Fiscal
Agent shall make any P&I Advance with respect to the 000 Xxxxxx Xxxxxx
Non-Pooled Trust Loan or any Companion Loans other than, in the case of the
Master Servicer, the Serviced Pari Passu Companion Loans.
(e) With respect to any Non-Serviced Loan Group, if (1) the related
Lead Master Servicer has determined that a proposed P&I Advance (as defined in
the Lead PSA) with respect to the Non-Serviced Trust Loan or any related Pari
Passu Companion Loan, if made, or any outstanding P&I advance previously made,
would be, or is, as applicable, a "nonrecoverable advance," and the related Lead
Master Servicer has provided written notice of such determination to the Master
Servicer, or (2) if the Master Servicer has determined that a P&I Advance (or,
in the case of the 237 Park Loan Group, the Xxxxx Fargo Tower Loan Group and the
1801 K Street Loan Group, any back-up P&I Advance) with respect to the
Non-Serviced Trust Loan would be a Nonrecoverable P&I Advance, then none of the
Master Servicer, the Trustee or the Fiscal Agent shall make any additional P&I
Advance (or, in the case of the 237 Park Loan Group, the Xxxxx Fargo Tower Loan
Group and the 1801 K Street Loan Group, any back-up P&I Advance) with respect to
the Non-Serviced Trust Loan until the Master Servicer has consulted with the
Lead Master Servicer and they agree that circumstances with respect to such
Loans have changed such that a proposed future P&I Advance would not be a
"nonrecoverable advance." With respect to each Non-Serviced Trust Loan, if the
Master Servicer has determined that a proposed P&I Advance (or, in the case of
the 237 Park Loan Group, the Xxxxx Fargo Tower Loan Group and the 1801 K Street
Loan Group, any back-up P&I Advance) with respect to such Loan, would be a
Nonrecoverable Advance, the Master Servicer shall provide the applicable Lead
Master Servicer and any applicable Subsequent Master Servicer written notice of
such determination within two Business Days after such determination was made.
With respect to any Serviced Pari Passu Companion Loan, if the
Master Servicer determines that a proposed P&I Advance, if made, or any
outstanding P&I Advance previously made, would be, or is, as applicable, a
Nonrecoverable Advance, the Master Servicer shall provide the applicable
Subsequent Master Servicer written notice of such determination within two
Business Days after such determination was made. If the Master Servicer receives
written notice from the Subsequent Master Servicer that a proposed back-up P&I
advance, if made, or any outstanding back-up P&I advance previously made, would
be, or is, as applicable, a "nonrecoverable advance," the Master Servicer shall
not make any additional P&I Advances with respect to the Loans in the related
Loan Group until the Master Servicer has consulted with the Subsequent Master
Servicer and they agree that circumstances with respect to such Loans have
changed such that a proposed future P&I Advance would not be a Nonrecoverable
Advance.
If the Trustee or the Master Servicer has received notice from
Xxxxx'x or S&P that the Master Servicer no longer has Xxxxx'x Approval or is no
longer on the S&P list of approved master servicers, then the Trustee or Master
Servicer shall promptly notify the others and the applicable Lead Master
Servicer or Subsequent Master Servicer of the same.
If the Master Servicer has received notice that a Lead Master
Servicer or a Subsequent Master Servicer no longer has Xxxxx'x Approval or is no
longer on the S&P list of approved master servicers, then the Master Servicer
shall not be required to abide by any determination of nonrecoverability by such
Lead Master Servicer or Subsequent Master Servicer.
For the purpose of this Section 4.03A(f), "Xxxxx'x Approval" means
that a master servicer (1) is acting as master servicer in a commercial mortgage
loan securitization that was rated by Xxxxx'x within the twelve month period
prior to the date of determination, and Xxxxx'x has not downgraded or withdrawn
the then-current rating on any class of commercial mortgage securities or placed
any class of commercial mortgage securities on watch citing the continuation of
such master servicer as master servicer of such commercial mortgage securities
as the cause for such downgrade, withdrawal or watch, or (2) is approved by
Xxxxx'x.
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the Trustee
shall determine the amount, if any, by which (i) the then aggregate of the Class
Principal Balances of all the Classes of Principal Balance Certificates (other
than the Class OEA-B 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 P, Class O, Class N, Class M, Class L, Class K, Class J, Class H,
Class G, Class F, Class E, Class D, Class C and Class B Certificates shall be
reduced sequentially, in that order, in each case, until such excess or the
related Class Principal Balance is reduced to zero (whichever occurs first). If,
after the foregoing reductions, the amount described in clause (i) of the second
preceding sentence still exceeds the amount described in clause (ii) of such
sentence, then the respective Class Principal Balances of all the outstanding
Classes of the Class A Certificates shall be reduced on a pro rata basis in
accordance with the relative sizes of such Class Principal Balances, until any
such remaining excess is reduced to zero. On each Distribution Date, following
the distributions to Class OEA-B Certificateholders to be made on such date
pursuant to Section 4.01, the Trustee shall determine the amount, if any, by
which (i) the then aggregate of the Class Principal Balances of all the Classes
of OEA-B Certificates exceeds (ii) the Stated Principal Balance of the 000
Xxxxxx Xxxxxx Non-Pooled Trust Loan that will be outstanding immediately
following such Distribution Date. If such excess does exist, then the Class
Principal Balances of the Class OEA-B2 and Class OEA-B1 Certificates shall be
reduced sequentially, in that order, in each case, until such excess or the
related Class Principal Balance is reduced to zero (whichever occurs first). All
such reductions in the Class Principal Balances of the respective Classes of the
Principal Balance Certificates shall constitute allocations of Realized Losses
and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions of
principal or in reimbursement of previously allocated Realized Losses and
Additional Trust Fund Expenses made in respect of the Uncertificated Lower-Tier
Interests pursuant to Section 4.01(i), the Uncertificated Principal Balance (or
aggregate Uncertificated Principal Balance with respect to the Uncertificated
Lower-Tier Interests corresponding to the Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class X-0, Xxxxx X-0, Class F, Class G, Class H, Class J and
Class L Certificates) of the Corresponding Uncertificated Lower-Tier Interests
(after taking account of such deemed distributions) shall be reduced as a result
of Realized Losses and Additional Trust Fund Expenses to equal the Class
Principal Balance of the Class of Corresponding Certificates that will be
outstanding immediately following such Distribution Date; provided, that
Realized Losses and Additional Trust Fund Expenses shall be allocated:
(i) with respect to the Class L Certificates, first, in respect of
the Class LL-1 Interest; and second, in respect of the Class LL-2
Interest; in each case until their respective Uncertificated Principal
Balances are reduced to zero;
(ii) with respect to the Class H Certificates, first, in respect of
the Class LH-1 Interest; second, in respect of the Class LH-2 Interest;
and third, in respect of the Class LH-3 Interest; in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(iii) with respect to the Class G Certificates, first, in respect of
the Class LG-1 Interest; and second, in respect of the Class LG-2
Interest; in each case until their respective Uncertificated Principal
Balances are reduced to zero;
(iv) with respect to the Class F Certificates, first, in respect of
the Class LF-1 Interest; second, in respect of the Class LF-2 Interest;
and third, in respect of the Class LF-3 Interest; in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(v) with respect to the Class E Certificates, first, in respect of
the Class LE-1 Interest; second, in respect of the Class LE-2 Interest;
and third, in respect of the Class LE-3 Interest; in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(vi) with respect to the Class D Certificates, first, in respect of
the Class LD-1 Interest; second, in respect of the Class LD-2 Interest;
and third, in respect of the Class LD-3 Interest; in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(vii) with respect to the Class A-7 Certificates, first, in respect
of the Class LA-7-1 Interest; and second, in respect of the Class LA-7-2
Interest; in each case until their respective Uncertificated Principal
Balances are reduced to zero;
(viii) with respect to the Class A-5 Certificates, first, in respect
of the Class LA-5-1 Interest; second, in respect of the Class LA-5-2
Interest; third, in respect of the Class LA-5-3 Interest; and fourth, in
respect of the Class LA-5-4 Interest; in each case until their respective
Uncertificated Principal Balances are reduced to zero;
(ix) with respect to the Class A-4 Certificates, first, in respect
of the Class LA-4-1 Interest; second, in respect of the Class LA-4-2
Interest; and third, in respect of the Class LA-4-3 Interest; in each case
until their respective Uncertificated Principal Balances are reduced to
zero;
(x) with respect to the Class A-3 Certificates, first, in respect of
the Class LA-3-1 Interest; second, in respect of the Class LA-3-2
Interest; third, in respect of the Class LA-3-3 Interest; fourth, in
respect of the Class LA-3-4 Interest; and fifth, in respect of the Class
LA-3-5 Interest; in each case, until their respective Uncertificated
Principal Balances are reduced to zero; and
(xi) with respect to the Class A-2 Certificates, first, in respect
of the Class LA-2-1 Interest; second, in respect of the Class LA-2-2
Interest; and third, in respect of the Class LA-2-3 Interest; in each
case, until their respective Uncertificated Principal Balances are reduced
to zero.
Section 4.05 Various Reinstatement Amounts.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01 or 9.01, as
applicable, the Trustee shall determine the amount, if any, by which (i) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date, exceeds (ii) the then aggregate of
the Class Principal Balances of all the Classes of Principal Balance
Certificates (excluding the Class OEA-B Certificates). If such an excess does
exist, then the Trustee shall allocate the Total Principal Reinstatement Amount,
if any, for the subject Distribution Date as follows until it is allocated in
full: first, to all of the Classes of Class A Certificates, up to, and on a pro
rata basis in accordance with, the respective Loss Reimbursement Amounts, if
any, for such Classes of Class A Certificates with respect to the next
succeeding Distribution Date; and then to the remaining Classes of Principal
Balance Certificates (excluding the Class OEA-B Certificates), sequentially in
alphabetical order based on the respective Class designations thereof, in each
case up to any Loss Reimbursement Amount for such Class of Principal Balance
Certificates immediately prior to such Distribution Date. Any portion of the
Total Principal Reinstatement Amount for any Distribution Date that is allocated
to a particular Class of Principal Balance Certificates shall be: (i) referred
to herein as the "Class Principal Reinstatement Amount" in respect of such Class
of Principal Balance Certificates for such Distribution Date; and (ii) added to
the Class Principal Balance of such Class of Principal Balance Certificates on
such Distribution Date. Notwithstanding anything to the contrary contained
herein, the parties hereby acknowledge that the reinstatement of all or any
portion of the Class Principal Balance of any Class of Principal Balance
Certificates on any Distribution Date shall be a result of the collection of
Recovered Amounts during the related Collection Period and the upward adjustment
of the Adjusted Principal Distribution Amount for such Distribution Date as a
result of such Recovered Amounts.
(b) In addition, in connection with its reinstatement of all or any
portion of the Class Principal Balance of any one or more Classes of Principal
Balance Certificates on any Distribution Date pursuant to Section 4.05(a), the
Trustee shall calculate the amount of lost Distributable Certificate Interest
that would have accrued on the respective Classes of Regular Interest
Certificates through and including the end of the Interest Accrual Period for
such Distribution Date if no Unfunded Principal Balance Reductions had resulted
from the reimbursement out of general collections of principal on the Mortgage
Pool of the particular Advances relating to the Recovered Amounts associated
with such reinstatement of outstanding principal. Once determined, such lost
Distributable Certificate Interest in respect of any particular Class of Regular
Interest Certificates shall be reinstated and become due and payable on future
Distribution Dates as part of the unpaid Distributable Certificate Interest for
such Class of Regular Interest Certificates from prior Distribution Dates. All
such reinstated Distributable Certificate Interest in respect of any particular
Class of Regular Interest Certificates shall be treated the same as any other
unpaid Distributable Certificate Interest in respect of such Class of Regular
Interest Certificates.
(c) If the Class Principal Balance of any Class of Principal Balance
Certificates is increased on any Distribution Date pursuant to Section 4.05(a),
then the Lower-Tier Interest Principal Balance of such Class' Corresponding
Lower-Tier Regular Interest (or, if applicable, the aggregate Lower-Tier
Interest Principal Balance of such Class' Corresponding Lower-Tier Regular
Interests) shall be deemed to have first been increased by the exact same
amount. In circumstances where there are multiple Corresponding Lower-Tier
Regular Interests with respect to a Class of Principal Balance Certificates, the
increases in the respective Lower-Tier Interest Principal Balances of such
Corresponding Lower-Tier Regular Interests as contemplated by the prior sentence
shall be made in the reverse order that reductions are made to such Lower-Tier
Interest Principal Balances pursuant to Section 4.04(b), in each case up to the
amount of the Loss Reimbursement Amount with respect to the subject Lower-Tier
Regular Interest for the next succeeding Distribution Date. The amount of each
such increase in the Lower-Tier Interest Principal Balance of a Lower-Tier
Regular Interest on any Distribution Date shall be referred to herein as the
"Lower-Tier Interest Principal Reinstatement Amount" in respect of such
Lower-Tier Regular Interest for such Distribution Date.
Section 4.06 Calculations.
The Trustee shall, provided it receives the necessary information
from the Master Servicer and the Special Servicer, be responsible for performing
all calculations necessary in connection with the actual and deemed
distributions and allocations to be made pursuant to Section 4.01 and Article IX
and the actual and deemed allocations of Realized Losses and Additional Trust
Fund Expenses to be made pursuant to Section 4.04. The Trustee shall calculate
the Available Distribution Amount and the Available Class OEA-B Distribution
Amount for each Distribution Date and shall allocate such amounts among
Certificateholders in accordance with this Agreement, and the Trustee shall have
no obligation to recompute, recalculate or verify any information provided to it
by the Special Servicer or Master Servicer. The calculations by the Trustee of
such amounts shall, in the absence of manifest error, be presumptively deemed to
be correct for all purposes hereunder.
Section 4.07 Use of Agents.
The Master Servicer, the Special Servicer or the Trustee may at its
own expense utilize agents or attorneys-in-fact in performing any of its
obligations under this Article IV (except the obligation to make P&I Advances),
but no such utilization shall relieve the Master Servicer, the Special Servicer
or the Trustee, as applicable, from any of such obligations, and the Master
Servicer, the Special Servicer or the Trustee, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits X-0, X-0, X-0, X-0, X-0, X-0 and A-7; provided that
any of the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03, beneficial ownership interests in the
Certificates (other than the Class R-I or Class R-II Certificates) shall
initially be held and transferred through the book-entry facilities of the
Depository. The Regular Interest Certificates will be issuable only in
denominations corresponding to initial Certificate Principal Balances or initial
Notional Amount, as the case may be, as of the Closing Date of $25,000 in the
case of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7, Class B, Class C, Class D and Class E Certificates, $1,000,000 in the
case of the Class XP, Class XC Certificates, and $100,000 in the case of the
remaining Regular Interest Certificates, and in each such case in integral
multiples of $1 in excess thereof. The Class R-I and Class R-II Certificates
will be issuable in denominations representing Percentage Interests in the
related Class of not less than 5%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers or signatories of the
Certificate Registrar shall be entitled to all benefits under this Agreement,
subject to the following sentence, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, however, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The offices of the Trustee responsible for its duties as initial
Certificate Register shall be located, as of the Closing Date, at 000 Xxxxx
XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities
Trust Services Group--Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust Series 2004-GG1. The Certificate Registrar may appoint, by a
written instrument delivered to the Depositor, the Master Servicer, the Special
Servicer and (if the Trustee is not the Certificate Registrar) the Trustee, any
other bank or trust company to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe, provided that
the predecessor Certificate Registrar shall not be relieved of any of its duties
or responsibilities hereunder by reason of such appointment. If the Trustee
resigns or is removed in accordance with the terms hereof, the successor trustee
shall immediately succeed to its duties as Certificate Registrar. The Depositor,
the Trustee (if it is no longer the Certificate Registrar), the Master Servicer
and the Special Servicer shall have the right to inspect the Certificate
Register or to obtain a copy thereof at all reasonable times, and to rely
conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register.
If three or more Holders make written request to the Trustee, and
such request states that such Holders desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such Holders propose to
transmit, then the Trustee shall, within 30 days after the receipt of such
request, afford (or cause any other Certificate Registrar to afford) the
requesting Holders access during normal business hours to the most recent list
of Certificateholders held by the Certificate Registrar.
(b) No Transfer of any Non-Registered Certificate or interest
therein shall be made unless that Transfer is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of any Definitive Non-Registered Certificate is to be
made without registration under the Securities Act (other than in connection
with a Transfer of a Global Certificate for any Class of Book-Entry
Non-Registered Certificates to a successor Depository or to the applicable
Certificate Owner(s) in accordance with Section 5.03), then the Certificate
Registrar shall refuse to register such Transfer unless it receives (and, upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such Transfer substantially in the form
attached hereto as Exhibit F-1 and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached hereto either as
Exhibit F-2A or, with respect to each Definitive Non-Registered Certificate
other than the Class R-I and Class R-II Certificates, as Exhibit F-2B; or (ii)
an Opinion of Counsel satisfactory to the Trustee to the effect that the
prospective Transferee is an Institutional Accredited Investor or a Qualified
Institutional Buyer (except in the case of the Class R-I and Class R-II
Certificates, where the prospective Transferee must be a Qualified Institutional
Buyer) and such Transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Tax Administrator,
the Trustee, the Fiscal Agent or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such Transfer from the Certificateholder desiring to effect such
Transfer and/or such Certificateholder's prospective Transferee on which such
Opinion of Counsel is based.
Except as provided in the following two paragraphs, no interest in
the Rule 144A Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of an interest in such Rule 144A Global Certificate. A Transferee of an
interest in the Rule 144A Global Certificate that takes delivery for a Class of
Book-Entry Non-Registered Certificates shall be deemed to have represented and
warranted that all the certifications set forth in Exhibit F-2C hereto are, with
respect to the subject Transfer, true and correct.
Any interest in the Rule 144A Global Certificate for a Class of
Book-Entry Non-Registered Certificates may be transferred by the Depositor or
any Affiliate of the Depositor to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate for such Class of
Certificates upon delivery to the Certificate Registrar of (x) a certificate to
the effect that the Certificate Owner desiring to effect such Transfer is the
Depositor or an Affiliate of the Depositor and (y) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the Certificates to be
transferred (such date of transfer, the "Transfer Date"). Upon delivery to the
Certificate Registrar of such certification and orders and instructions, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Rule 144A Global Certificate in
respect of the applicable Class of Certificates and increase the denomination of
the Regulation S Global Certificate for the applicable Class, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions, provided that no Regulation S Restricted Certificate may be
transferred to a Person acquiring such Certificate in reliance on Regulation S.
Also notwithstanding the foregoing, any interest in a Rule 144A
Global Certificate with respect to any Class of Book-Entry Non-Registered
Certificates may be transferred by any Certificate Owner holding such interest
to any Institutional Accredited Investor (other than a Qualified Institutional
Buyer) that takes delivery in the form of a Definitive Certificate of the same
Class as such Rule 144A Global Certificate upon delivery to the Certificate
Registrar and the Trustee of (i) such certifications and/or opinions as are
contemplated by the second paragraph of this Section 5.02(b) and (ii) such
written orders and instructions as are required under the applicable procedures
of the Depository to direct the Trustee to debit the account of a Depository
Participant by the denomination of the transferred interests in such Rule 144A
Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated by the second paragraph of this
Section 5.02(b), the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with this Agreement to the
applicable Transferee.
Except as provided in the next paragraph, no beneficial interest in
the Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the date (the "Release Date") which is 40 days after the Transfer
Date, the Certificate Owner desiring to effect any such Transfer shall be
required to obtain from such Certificate Owner's prospective Transferee a
written certification substantially in the form set forth in Exhibit F-2D hereto
certifying that such Transferee is not a United States Securities Person. On or
prior to the Release Date, beneficial interests in the Regulation S Global
Certificate for each Class of Book-Entry Non-Registered Certificates may be held
only through Euroclear or Clearstream. The Regulation S Global Certificate for
each Class of Book-Entry Non-Registered Certificates shall be deposited with the
Trustee as custodian for the Depository and registered in the name of Cede & Co.
as nominee of the Depository, provided that no Regulation S Restricted
Certificate may be transferred to a Person acquiring such Certificate in
reliance on Regulation S.
Notwithstanding the preceding paragraph, after the Release Date, any
interest in the Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor or any Affiliate
of the Depositor to any Person who takes delivery in the form of a beneficial
interest in the Rule 144A Global Certificate for such Class of Certificates upon
delivery to the Certificate Registrar of (x) a certificate to the effect that
the Certificate Owner desiring to effect such Transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, and
credit the account of a Depository Participant by a denomination of interests in
such Rule 144A Global Certificate, that is equal to the denomination of
beneficial interests in the Certificates to be transferred. Upon delivery to the
Certificate Registrar of such certification and orders and instructions, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Regulation S Global Certificate
in respect of the applicable Class being transferred and increase the
denomination of the Rule 144A Global Certificate for such Class, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the Transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of any Non-Registered Certificate or interest therein shall, and does
hereby agree to, indemnify the Depositor, the Underwriters, the Trustee, the
Fiscal Agent, the Master Servicer, the Special Servicer, the Tax Administrator
and the Certificate Registrar against any liability that may result if such
Transfer is not exempt from the registration and/or qualification requirements
of the Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
(c) No Transfer of a Certificate or any interest therein shall be
made (i) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I of ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (ii) to any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, if the purchase and holding of such Certificate or
interest therein by the prospective Transferee would result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code or any similar
violation of Similar Law. Except in connection with Transfer thereof to a
successor Depository or to the applicable Certificate Owner(s) in accordance
with Section 5.03, the Certificate Registrar shall refuse to register the
Transfer of a Definitive Non-Registered Certificate unless it has received from
the prospective Transferee, either (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) alternatively, but only in
the case of a Certificate other than a Class R-I or Class R-II Certificate, a
certification to the effect that the purchase and holding of such Certificate or
interest therein by such prospective Transferee is exempt from the prohibited
transaction provisions of Sections 406(a) and (b) and 407 of ERISA and the
excise taxes imposed on such prohibited transactions by Sections 4975(a) and (b)
of the Code, by reason of Sections I and III of Prohibited Transaction Class
Exemption 95-60; or (iii) alternatively, but only in the case of a Certificate
other than a Class R-I or Class R-II Certificate, a certification of facts and
an Opinion of Counsel which otherwise establish to the reasonable satisfaction
of the Trustee or such Certificate Owner, as the case may be, that such Transfer
will not result in a violation of Section 406 or 407 of ERISA or Section 4975 of
the Code or result in the imposition of an excise tax under Section 4975 of the
Code. It is hereby acknowledged that the form of certification attached hereto
as Exhibit G (with respect to Definitive Non-Registered Certificates) is
acceptable for purposes of the preceding sentence. If any Transferee of a
Certificate (including a Registered Certificate) or any interest therein does
not, in connection with the subject Transfer, deliver to the Certificate
Registrar (in the case of a Definitive Certificate) any certification and/or
Opinion of Counsel contemplated by the second preceding sentence, then such
Transferee (and in any event any owner of a Book-Entry Certificate that is not
an Investment Grade Certificate) shall be deemed to have represented and
warranted that either: (i) such Transferee is not a Plan and is not directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of such Certificate or interest therein by such Transferee
is exempt from the prohibited transaction provisions of Sections 406(a) and (b)
and 407 of ERISA and the excise taxes imposed on such prohibited transactions by
Sections 4975(a) and (b) of the Code (or similar violation of Similar Law). Any
Transferee of a Book-Entry Certificate that is an Investment Grade Certificate
that is being acquired by or on behalf of a Plan in reliance on the Prohibited
Transaction Exemption shall be deemed to have represented and warranted that
such Plan (X) is an accredited investor as defined in Rule 501(a)(1) of
Regulation D of the Securities Act, and (Y) is not sponsored (within the meaning
of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Sub-Servicer, any
Exemption-Favored Party or any Mortgagor with respect to Mortgage Loans
constituting more than 5% of the aggregate unamortized principal balance of all
the Mortgage Loans determined as of the Closing Date, or by any Affiliate of
such Person.
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Interest Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under clause
(ii)(A) below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) below to negotiate the
terms of any mandatory disposition and to execute all instruments of Transfer
and to do all other things necessary in connection with any such disposition.
The rights of each Person acquiring any Ownership Interest in a Residual
Interest Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall be a Permitted Transferee and
shall promptly notify the Tax Administrator and the Trustee of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Interest Certificate, except in the case of
an initial transfer to an Underwriter or the Initial Purchaser or an
affiliate thereof, the Certificate Registrar shall require delivery
to it, and shall not register the Transfer of any Residual Interest
Certificate until its receipt, of an affidavit and agreement
substantially in the form attached hereto as Exhibit H-1 (a
"Transfer Affidavit and Agreement"), from the proposed Transferee,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Residual Interest Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent for
any Person that is not a Permitted Transferee, that for so long as
it retains its Ownership Interest in a Residual Interest Certificate
it will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of this Section 5.02(d) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of either the Trustee or the Certificate
Registrar has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in a
Residual Interest Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to Transfer its Ownership Interest in such
Residual Interest Certificate and (2) not to Transfer its Ownership
Interest in such Residual Interest Certificate unless it provides to
the Certificate Registrar a certificate substantially in the form
attached hereto as Exhibit H-2 stating that, among other things, it
has no actual knowledge that such prospective Transferee is not a
Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in
a Residual Interest Certificate, by purchasing such Ownership
Interest, agrees to give the Tax Administrator and the Trustee
written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest
in a Residual Interest Certificate, if it is, or is holding an
Ownership Interest in a Residual Interest Certificate on behalf of,
a "pass-through interest holder."
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual Interest
Certificate that was in compliance with the provisions of this Section
5.02(d) shall be restored, to the extent permitted by law, to all rights
as Holder thereof retroactive to the date of registration of such Transfer
of such Residual Interest Certificate. None of the Depositor, the Trustee
or the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Interest Certificate that
is in fact not permitted by this Section 5.02(d) or for making any
payments due on such Certificate to the Holder thereof or for taking any
other action with respect to such Holder under the provisions of this
Agreement.
(B) If any purported Transferee shall become a Holder of a Residual
Interest Certificate in violation of the restrictions in this Section 5.02(d),
then, to the extent that retroactive restoration of the rights of the preceding
Holder of such Residual Interest Certificate as described in clause (ii)(A)
above shall be invalid, illegal or unenforceable, the Trustee shall have the
right but not the obligation, to cause the Transfer of such Residual Interest
Certificate to a Permitted Transferee selected by the Trustee on such terms as
the Trustee may choose, and the Trustee shall not be liable to any Person having
an Ownership Interest in such Residual Interest Certificate as a result of the
Trustee's exercise of such discretion. Such purported Transferee shall promptly
endorse and deliver such Residual Interest Certificate in accordance with the
instructions of the Trustee. Such Permitted Transferee may be the Trustee itself
or any Affiliate of the Trustee.
(iii) The Tax Administrator shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information furnished
to it by the other parties hereto necessary to compute any tax imposed (A)
as a result of the Transfer of an Ownership Interest in a Residual
Interest Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions"
of such Residual Interest Certificate and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of
the Code that holds an Ownership Interest in a Residual Interest
Certificate having as among its record Holders at any time any Person
which is a Disqualified Organization, and each of the other parties hereto
shall furnish to the Tax Administrator all information in its possession
necessary for the Tax Administrator to discharge such obligation. The
Person holding such Ownership Interest shall be responsible for the
reasonable compensation of the Tax Administrator for providing information
thereto pursuant to this subsection (d)(iii) and Section 10.01(h)(i).
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee and the Tax Administrator the
following:
(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause an Adverse Rating Event; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee and the Tax Administrator, obtained at the expense of
the party seeking such modification of, addition to or elimination
of such provisions (but in no event at the expense of the Trustee,
the Tax Administrator or the Trust), to the effect that doing so
will not (1) cause either REMIC Pool or any Loan REMIC to cease to
qualify as a REMIC or be subject to an entity-level tax caused by
the Transfer of any Residual Interest Certificate to a Person which
is not a Permitted Transferee or (2) cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused
by the Transfer of a Residual Interest Certificate to a Person that
is not a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Non-Registered Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that, and such
other evidence as may be reasonably required by the Trustee (or such Certificate
Owner) to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the applicable foregoing
acknowledgments, representations, warranties, certifications and agreements with
respect to each such account as set forth in Subsections (b), (c) and/or (d), as
appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class evidencing a like aggregate Percentage Interest
in such Class.
(g) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class evidencing
a like aggregate Percentage Interest in such Class upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or Certificate Registrar may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates.
(a) The Certificates (other than the Class R-I and Class R-II)
shall, in the case of each such Class, initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and, except
as provided in Section 5.03(c) and in the fifth paragraph of Section 5.02(b), a
Transfer of such Certificates may not be registered by the Certificate Registrar
unless such Transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and Transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.03(c) and in
the fifth paragraph of Section 5.02(b), shall not be entitled to definitive,
fully registered Certificates ("Definitive Certificates") in respect of such
Ownership Interests. The Certificates (other than the Class R-I and Class R-II)
initially sold to Qualified Institutional Buyers in reliance on Rule 144A or in
reliance on another exemption from the registration requirements of the
Securities Act shall, in the case of each such Class, be represented by the Rule
144A Global Certificate for such Class, which shall be deposited with the
Trustee as custodian for the Depository and registered in the name of Cede & Co.
as nominee of the Depository. The Certificates (other than the Class R-I and
Class R-II) initially sold in offshore transactions in reliance on Regulation S
shall, in the case of each such Class, be represented by the Regulation S Global
Certificate for such Class, which shall be deposited with the Trustee as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository, provided that only Investment Grade Certificates shall be
sold in offshore transactions in reliance on Regulation S. All Transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing each such Certificate
Owner. Each Depository Participant shall only transfer the Ownership Interests
in the Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same.
Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar shall
be liable for any delay in delivery of such instructions, and each of them may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Registered Certificates, the registered Holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) Notwithstanding any other provisions contained herein, neither
the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the Transfer of ownership interests in any
Certificate which interests are transferable through the book-entry facilities
of the Depository.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC created hereunder, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.05 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.01 and for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
DIRECTING HOLDER
Section 6.01 Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
Section 6.02 Continued Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion of Depositor, Master Servicer or
Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a legal entity under the laws of the jurisdiction of
its organization, and each will obtain and preserve its qualification to do
business as a foreign entity in, and will otherwise remain in compliance with
the laws of, each jurisdiction in which such qualification and compliance is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Loans and to perform its respective duties under
this Agreement.
Each of the Depositor, the Master Servicer and the Special Servicer
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which, in the case of the Master Servicer or
the Special Servicer, may be limited to all or substantially all of its assets
related to commercial mortgage loan servicing) to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the
Master Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business (which, in the case of the Master Servicer or the
Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the Master Servicer or the Special Servicer,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as confirmed in writing by each of the Rating Agencies, such
succession will not result in an Adverse Rating Event, and (ii) such successor
or surviving Person makes the applicable representations and warranties set
forth in Section 3.24 (in the case of a successor or surviving Person to the
Master Servicer) or Section 3.25 (in the case of a successor or surviving Person
to the Special Servicer), as applicable.
Section 6.03 Limitation on Liability of Depositor, Master Servicer
and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Trustee, the
Certificateholders or the Companion Loan Noteholders for any action taken, or
not taken, in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Master Servicer or the Special Servicer against any liability to the Trust Fund,
the Trustee, the Certificateholders or the Companion Loan Noteholders for the
breach of a representation or warranty made herein by such party, or against any
expense or liability specifically required to be borne by such party without
right of reimbursement pursuant to the terms hereof, or against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of its obligations or duties hereunder or
negligent disregard of such obligations or duties. The Depositor, the Master
Servicer, the Special Servicer and any director, manager, member, officer,
employee or agent of the Depositor, the Master Servicer or the Special Servicer
may rely in good faith on any document of any kind which, prima facie, is
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer, the Special Servicer and any
director, manager, member, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer shall be indemnified and held harmless
by the Trust Fund out of the Pool Custodial Account against any loss, liability
or reasonable expense (including reasonable legal fees and expenses) incurred in
connection with any legal action or claim relating to this Agreement or the
Certificates (including in connection with the dissemination of information and
reports as contemplated by this Agreement), other than any such loss, liability
or expense: (i) specifically required to be borne by the party seeking
indemnification, without right of reimbursement pursuant to the terms hereof;
(ii) which constitutes a Servicing Advance that is otherwise reimbursable
hereunder; (iii) incurred in connection with any legal action or claim against
the party seeking indemnification, resulting from any breach on the part of that
party of a representation or warranty made herein; or (iv) incurred in
connection with any legal action or claim against the party seeking
indemnification, resulting from any willful misfeasance, bad faith or negligence
on the part of that party in the performance of its obligations or duties
hereunder or negligent disregard of such obligations or duties; provided that if
a Serviced Loan Group is involved, such indemnity shall be payable out of the
related Loan Group Custodial Account pursuant to Section 3.05A and, to the
extent not solely attributable to the Companion Loan in such Serviced Loan
Group, shall also be payable out of the Pool Custodial Account if amounts on
deposit in the related Loan Group Custodial Account are insufficient therefor.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any obligation to appear in, prosecute or defend any
administrative or legal action, proceeding, hearing or examination unless such
action is related to its respective duties under this Agreement and either (i)
it is specifically required hereunder to bear the costs of such action or (ii)
such action will not, in its reasonable and good faith judgment, involve it in
any ultimate expense or liability for which it would not be reimbursed
hereunder. Notwithstanding the foregoing, the Depositor, the Master Servicer or
the Special Servicer may in its discretion undertake any such action which it
may deem necessary or desirable with respect to the enforcement and/or
protection of the rights and duties of the parties hereto and the interests of
the Certificateholders (or, if a Loan Group is affected, the rights of the
Certificateholders and the related Companion Loan Noteholders (as a collective
whole)). In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Master Servicer and the Special Servicer
shall be entitled to be reimbursed therefor from the Pool Custodial Account as
provided in Section 3.05; provided, however, that if a Loan Group and/or the
related Companion Loan Noteholders are involved, such expenses, costs and
liabilities shall be payable out of the related Loan Group Custodial Account
pursuant to Section 3.05A and, to the extent attributable to the Mortgage Loan
in such Loan Group, shall also be payable out of the Pool Custodial Account if
amounts on deposit in the related Loan Group Custodial Account are insufficient
therefor. In no event shall the Master Servicer or the Special Servicer be
liable or responsible for any action taken or omitted to be taken by the other
of them (unless they are the same Person or Affiliates) or for any action taken
or omitted to be taken by the Depositor, the Trustee, any Certificateholder or
the Companion Loan Noteholders, subject to the provisions of Section 8.05(c).
Each Lead Master Servicer, Lead Special Servicer and any director,
manager, member, officer, employee or agent of a Lead Master Servicer or Lead
Special Servicer shall be indemnified and held harmless by the Trust Fund
against the Trust Fund's pro rata share of any loss, liability or reasonable
expense (including reasonable legal fees and expenses) incurred in connection
with any legal action or claim that (1) relates to the applicable Lead PSA
and/or this Agreement and (2) relates solely to the servicing of the applicable
Non-Serviced Loan Group, other than any losses incurred by reason of such Lead
Master Servicer's or Lead Special Servicer's willful misfeasance, bad faith or
negligence in the performance of its duties under the applicable Lead PSA.
In the event that the terms of a Subsequent PSA (provided the Master
Servicer has been provided with a copy of such Subsequent PSA) or Lead PSA
provide for the indemnification of the Master Servicer and/or the Special
Servicer, the Master Servicer and Special Servicer shall diligently pursue their
rights under such Subsequent PSA or Lead PSA for the related trust's
proportionate share of any indemnification sought by the Master Servicer or
Special Servicer in connection with a Loan Group.
Section 6.04 Resignation of Master Servicer and the Special
Servicer.
(a) The Master Servicer and, subject to Section 6.09, the Special
Servicer may each resign from the obligations and duties hereby imposed on it,
upon a determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 6.09 or Section 7.02 hereof. The Master Servicer and,
subject to the rights of the Controlling Class under Section 6.09 to appoint a
successor special servicer, the Special Servicer shall each have the right to
resign at any other time, provided that (i) a willing successor thereto
reasonably acceptable to the Depositor has been found (provided that if the
Depositor has not responded to a request for consent to a successor within 15
days, such successor shall be deemed approved thereby), (ii) each of the Rating
Agencies confirms in writing that the successor's appointment will not result in
an Adverse Rating Event, (iii) the resigning party pays all costs and expenses
in connection with such resignation and the resulting transfer of servicing, and
(iv) the successor accepts appointment prior to the effectiveness of such
resignation and agrees in writing to be bound by the terms and conditions of
this Agreement. Neither the Master Servicer nor the Special Servicer shall be
permitted to resign except as contemplated above in this Section 6.04(a).
(b) Consistent with Section 6.04(a), neither the Master Servicer nor
the Special Servicer shall, except as expressly provided herein, assign or
transfer any of its rights, benefits or privileges hereunder to any other Person
or, except as provided in Sections 3.22, 4.07, 7.01(c) and 7.01(d), delegate to
or subcontract with, or authorize or appoint any other Person to perform any of
the duties, covenants or obligations to be performed by it hereunder. If,
pursuant to any provision hereof, the duties of the Master Servicer or the
Special Servicer are transferred to a successor thereto, the Master Servicing
Fee, the Special Servicing Fee, any Workout Fee and/or any Liquidation Fee
(except as expressly contemplated by Section 3.11(b)), as applicable, that
accrues or otherwise becomes payable pursuant hereto from and after the date of
such transfer shall be payable to such successor.
Section 6.05 Rights of Depositor, Trustee and the Companion Loan
Noteholders in Respect of the Master Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, each Underwriter, the Trustee and the Companion Loan Noteholders
(including any servicer on their behalf), upon reasonable notice, during normal
business hours access to all records maintained thereby in respect of its rights
and obligations hereunder. Upon reasonable request, the Master Servicer and the
Special Servicer shall each furnish the Depositor, each Underwriter, the Trustee
and the Companion Loan Noteholders with its most recent publicly available
financial statements and such other non-proprietary information as the Master
Servicer or the Special Servicer, as the case may be, shall determine in its
sole and absolute discretion as it possesses, which is relevant to the
performance of its duties hereunder and which it is not prohibited by applicable
law or contract from disclosing. The Depositor may, but is not obligated to,
enforce the obligations of the Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Master Servicer or Special Servicer
hereunder or exercise the rights of the Master Servicer and the Special Servicer
hereunder; provided, however, that neither the Master Servicer nor the Special
Servicer shall be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee and, provided, further, that the
Depositor may not exercise any right pursuant to Section 7.01 to terminate the
Master Servicer or the Special Servicer as a party to this Agreement. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer or the Special Servicer and is not
obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
Section 6.06 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
Section 6.07 Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
Section 6.08 Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
Section 6.09 Termination and Designation of Special Servicer by the
Directing Holder.
The Directing Holder may at any time and from time to time, without
cause, terminate the existing Special Servicer and designate a replacement
Special Servicer hereunder; provided that, in the case of the 000 Xxxxxx Xxxxxx
Loan Group regardless of whether a Control Appraisal Event has occurred, only
the Controlling Class Directing Holder may terminate and replace the Special
Servicer without cause; provided further that, in the case of the 000 Xxxxxx
Xxxxxx Loan Group, if a Control Appraisal Event has not occurred, (i) any
replacement Special Servicer for the 000 Xxxxxx Xxxxxx Loan Group designated by
the Controlling Class Directing Holder must be approved in writing by the Loan
Group Directing Holder of the 000 Xxxxxx Xxxxxx Loan Group and (ii) upon an
Event of Default of the Special Servicer for the 000 Xxxxxx Xxxxxx Loan Group,
if such Special Servicer is not otherwise terminated or replaced by the
Controlling Class Directing Holder, either the Subordinate Companion Noteholder
or the Class OEA-B Majority Holder may terminate and replace such existing
Special Servicer with a Special Servicer that has been approved in writing by
both the Subordinate Companion Noteholder and the Class OEA-B Majority Holder.
In addition, with respect to each Mortgage Loan, the Directing Holder may
appoint a replacement Special Servicer for any existing Special Servicer that
has resigned or otherwise ceased to serve (including in connection with
termination pursuant to Section 7.01) as Special Servicer (except that any
appointment of a replacement Special Servicer for the 000 Xxxxxx Xxxxxx Loan
Group must be in accordance with the first sentence of this paragraph). With
respect to each Loan Group, the rights of the Directing Holder or Controlling
Class Directing Holder to terminate and/or appoint a replacement Special
Servicer shall be limited to that Loan Group.
The Directing Holder or Controlling Class Directing Holder, as
applicable, shall so designate a Person to serve as replacement Special Servicer
by the delivery to the Trustee, the Master Servicer, and, if applicable, the
Companion Loan Noteholders (and in the case of the 000 Xxxxxx Xxxxxx Loan Group,
the Holders of the Class OEA-B Certificates), and the existing Special Servicer
of a written notice stating such designation. The Trustee shall, promptly after
receiving any such notice, deliver to the Rating Agencies an executed Notice and
Acknowledgment in the form attached hereto as Exhibit I-1. If the Directing
Holder has not replaced the Special Servicer within 30 days of such Special
Servicer's resignation or the date such Special Servicer has ceased to serve in
such capacity, the Trustee shall designate a successor Special Servicer, subject
to removal by the Directing Holder and appointment of a successor thereto
pursuant to the terms of this Section 6.09. Any designated Person (whether
designated by the Directing Holder or the Trustee) shall become the Special
Servicer on the date as of which the Trustee shall have received all of the
following: (1) written confirmation from all of the Rating Agencies that the
appointment of such Person will not result in an Adverse Rating Event; (2) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the designated Person, (3) confirmation that all
out-of-pocket costs and expenses incurred in connection with the removal and
replacement of a Special Servicer have been paid either by the removing party or
the replacement Special Servicer and (4) an Opinion of Counsel (at the expense
of the Person designated to become the Special Servicer) to the effect that,
upon the execution and delivery of the Acknowledgment of Proposed Special
Servicer, the designated Person shall be bound by the terms of this Agreement
and, subject to customary limitations, that this Agreement shall be enforceable
against the designated Person in accordance with its terms. Any existing Special
Servicer shall be deemed to have resigned simultaneously with such designated
Person's becoming the Special Servicer hereunder; provided, however, that (i)
the resigning Special Servicer shall continue to be entitled to receive all
amounts accrued or owing to it under this Agreement on or prior to the effective
date of such resignation, whether in respect of Servicing Advances or otherwise,
(ii) if the resigning Special Servicer was terminated without cause or resigns
in accordance with the first sentence of the first paragraph of Section 6.04, it
shall be entitled to certain Workout Fees thereafter payable with respect to the
Corrected Loans and Liquidation Fees (but only if and to the extent permitted by
Section 3.11(b)) and (iii) the resigning Special Servicer shall continue to be
entitled to the benefits of Section 6.03 notwithstanding any such resignation.
Such resigning Special Servicer shall cooperate with the Trustee and the
replacement Special Servicer in effecting the termination of the resigning
Special Servicer's responsibilities and rights hereunder, including the transfer
within two Business Days to the replacement Special Servicer for administration
by it of all cash amounts that shall at the time be or should have been credited
by the Special Servicer to a Custodial Account, a Servicing Account, a Reserve
Account or an REO Account or should have been delivered to the Master Servicer
or that are thereafter received with respect to Specially Serviced Loans and REO
Properties. The Trustee shall notify the other parties hereto, the
Certificateholders and the Companion Loan Noteholders of any termination of the
Special Servicer and appointment of a new Special Servicer in accordance with
this Section 6.09.
Any out-of-pocket costs and expenses incurred in connection with the
removal of a Special Servicer and its replacement by a Person designated by the
Directing Holder that are not paid by the replacement Special Servicer shall be
paid by the Directing Holder. Notwithstanding anything herein to the contrary,
the Directing Holder with respect to any Loan Group shall be permitted to
replace the Special Servicer in accordance with this Agreement only with respect
to such related Loan Group.
Section 6.10 Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer, the Special Servicer or any Affiliate of either
of them may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not the Master Servicer or the Special Servicer or an Affiliate thereof.
If, at any time during which the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer is the Holder of (or,
in the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate, the Master Servicer or the Special Servicer proposes to take action
(including for this purpose, omitting to take action) that is not expressly
prohibited by the terms hereof and would not, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's good faith judgment, be considered by other Persons to
violate the Servicing Standard, then the Master Servicer or the Special Servicer
may (but need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.10, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or an Affiliate
thereof or the Special Servicer or an Affiliate thereof, as appropriate, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates, as appropriate) shall have failed to object
in writing (with a copy to the Companion Loan Noteholders, if the Loan Groups
are involved) to the proposal described in the written notice, and if the Master
Servicer or the Special Servicer shall act as proposed in the written notice
within 30 days, such action shall be deemed to comply with, but not modify, the
Servicing Standard. The Trustee shall be entitled to reimbursement from the
Master Servicer or the Special Servicer, as applicable, for the reasonable
expenses of the Trustee incurred pursuant to this paragraph. It is not the
intent of the foregoing provision that the Master Servicer or the Special
Servicer be permitted to invoke the procedure set forth herein with respect to
routine servicing matters arising hereunder, but rather only in the case of
unusual circumstances.
Section 6.11 Certain Powers of the Directing Holder.
(a) The Directing Holder will be entitled to advise the Special
Servicer with respect to the following actions of the Special Servicer in
connection with any Serviced Loan, subject to the consultation rights of certain
holders of certain Companion Loans, as further set forth in Section 6.11(e)
below. The Special Servicer will not be permitted to take any of the following
actions unless and until it has notified the applicable Directing Holder in
writing in capitalized, bold faced 14 point type containing the following
statement at the top of the first page: "THIS IS A REQUEST FOR DIRECTING HOLDER
ACTION APPROVAL. IF THE DIRECTING HOLDER FAILS TO APPROVE OR DISAPPROVE THE
ENCLOSED APPROVAL ACTION WITHIN FIVE (5) BUSINESS DAYS, THE SPECIAL SERVICER,
MAY DELIVER A DEEMED APPROVAL NOTICE," and (b) if the Directing Holder fails to
either approve or reject said approval action within such five Business Day
period after receipt of the first notice, and having been provided with all
reasonably requested information with respect thereto, and the Special Servicer
delivers the approval action request to the Directing Holder accompanied by a
second notice in capitalized, bold faced 14 point type containing the following
statement at the top of the first page: "THIS IS A SECOND REQUEST FOR APPROVAL
ACTION. IF THE DIRECTING HOLDER FAILS TO APPROVE OR DISAPPROVE THE ENCLOSED
APPROVAL ACTION WITHIN FIVE BUSINESS DAYS, SUCH APPROVAL ACTION WILL BE DEEMED
APPROVED BY THE DIRECTING HOLDER," then, if the Directing Holder fails to
approve or reject such approval action within such second five Business Day
period (approval or rejection by notice by facsimile on the same day being
acceptable), then the Directing Holder's approval will be deemed to have been
given:
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisition as an REO Property) of the ownership of
properties securing such of the Specially Serviced Loans as come into and
continue in default;
(ii) any modification, extension, amendment or waiver of a monetary
term (including the timing of payments) or any material non-monetary term
of a Loan (including any material term relating to insurance or any
prohibition on additional debt);
(iii) any proposed or actual sale of an REO Property (other than in
connection with the termination of the Trust Fund) for less than the
Purchase Price;
(iv) any acceptance of a discounted payoff of a Loan;
(v) any determination to bring a Mortgaged Property or an REO
Property into compliance with applicable environmental laws or to
otherwise address Hazardous Materials located at a Mortgaged Property or
an REO Property;
(vi) any release of collateral for a Loan or any release of a
Mortgagor (other than in accordance with the terms of such Loan (with no
material discretion by the mortgagee), or upon satisfaction of, such
Loan);
(vii) any acceptance of substitute or additional collateral for a
Loan (other than in accordance with the terms of such Loan (with no
material discretion by the mortgagee));
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to any Loan or consent to a transfer of the Mortgage Property
or interest in the Mortgagor (to the extent the mortgagee has the right to
consent to such transfer);
(ix) any acceptance of an assumption agreement releasing a Mortgagor
or a guarantor from liability under a Loan;
(x) any acceptance of a change in the property management company
(provided that the unpaid principal balance of the related Mortgage Loan
is greater than $5,000,000) or, if applicable, the hotel franchise for any
Mortgaged Property;
(xi) any extension of the maturity date of a Mortgage Loan, which
results in the remaining term of any related ground lease (together with
extensions at the sole option of the lender) being less than 10 years
beyond the amortization term of such Mortgage Loan;
(xii) any determination by the Special Servicer pursuant to clause
(b), (c) or (d) of the definition of "Specially Serviced Loan" that a Loan
has become a Specially Serviced Loan;
(xiii) any extension by the Special Servicer of the maturity date of
a Performing Serviced Loan pursuant to Section 3.21(d); and
(xiv) in the case of the 000 Xxxxxx Xxxxxx Loan Group, (1) adoption
or approval of a plan of bankruptcy or reorganization for the borrower and
(2) approval of a material capital expenditure;
provided 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) (or, in the case of a Serviced Loan Group, to protect the
interests of the Certificateholders and the related Companion Loan Noteholder
(as a collective whole)), the Special Servicer may take any such action without
waiting for the applicable Directing Holder's response. As used in clauses (vi)
and (vii) above, the term "material discretion" shall mean that the relevant
decision regarding the release of collateral or the acceptance of substitute or
additional collateral, as applicable, is in the discretion of the mortgagee, and
such decision need not be based upon the satisfaction of specified objective
conditions, the satisfactory delivery of certain factual evidence or opinions or
the satisfaction of any other specified objective criteria that is set forth in
the related Mortgage Loan documents.
Notwithstanding the foregoing, with respect to the 000 Xxxxxx Xxxxxx
Loan Group, for so long as a Control Appraisal Event shall not have occurred,
the Directing Holder shall have the right to consult the Operating Advisor as
provided in the related Co-Lender Agreement, and the period of time in which the
Directing Holder shall be required to approve or reject an approval action may
be extended as provided in the related Co-Lender Agreement. In addition, at any
time that a Control Appraisal Event shall not have occurred with respect to the
000 Xxxxxx Xxxxxx Loan Group and there is no Operating Advisor, an objection to
any of the actions listed above by either the Class OEA-B Majority Holder or the
holder of a majority in balance of the 000 Xxxxxx Xxxxxx Subordinate Companion
Loan made to the Master Servicer or Special Servicer within the time period set
forth in this Section 6.11 shall be deemed to be an objection by the Directing
Holder of the 000 Xxxxxx Xxxxxx Loan Group. Each Holder of Class OEA-B
Certificates, by its acceptance of its Certificates, hereby agrees to be liable
for its pro rata share of the holder of the 000 Xxxxxx Xxxxxx Non-Pooled Trust
Loan's pro rata share of the fees and expenses of the Operating Advisor under
the Co-Lender Agreement and shall promptly pay such pro rata share of fees and
expenses upon request by the Trustee or the Operating Advisor.
In addition, the Directing Holder may direct the Special Servicer to
take, or to refrain from taking, any actions with respect to the servicing
and/or administration of a Specially Serviced Loan as the Directing Holder may
deem advisable or as to which provision is otherwise made herein subject to
Section 6.11(b). Upon reasonable request, the Special Servicer shall provide the
Directing Holder with any information in the Special Servicer's possession with
respect to such matters, including its reasons for determining to take a
proposed action; provided that such information shall also be provided, in a
written format, to the Trustee, who shall make it available for review pursuant
to Section 8.14(b) and, insofar as a Loan Group is involved, for review by the
related Companion Loan Noteholders and, in the case of the 000 Xxxxxx Xxxxxx
Non-Pooled Trust Loan, the Holders of the Class OEA-B Certificates.
The Special Servicer shall notify the applicable Directing Holder of
any release or substitution of collateral for a Loan even if such release or
substitution is in accordance with such Loan.
Notwithstanding anything herein to the contrary, if a Companion Loan
Noteholder is a Directing Holder it shall be permitted to exercise the powers of
a Directing Holder under this Agreement only with respect to its related Loan
Group.
With respect to a Tier 3 Loan Group, the Master Servicer or Special
Servicer, as applicable, will be required to obtain the consent of the related
Companion Loan Noteholder in connection with any modification or amendment to
the related Loan documents to the extent set forth in the related Co-Lender
Agreement.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Directing Holder, as contemplated by
Section 6.11(a), or any party having consultation rights under Section 6.11(e),
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) require or cause the Special Servicer or
Master Servicer to violate any provision of this Agreement (exclusive of Section
6.11(a)) (including the Special Servicer's obligation to act in accordance with
the Servicing Standard), the related Loan documents or the REMIC Provisions.
(c) The Directing Holder will have no liability to the
Certificateholders or the Companion Loan Noteholders for any action taken, or
for refraining from the taking of any action, or for errors in judgment. Each
Certificateholder acknowledges and agrees, by its acceptance of its
Certificates, that: (i) the Directing Holder may, and is permitted hereunder to,
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Holder may, and is
permitted hereunder to, act solely in the interests of the Holders of the
Controlling Class; (iii) the Directing Holder or its representative do not have
any duties to the Holders of any Class of Certificates other than the
Controlling Class; (iv) the Directing Holder may, and is permitted hereunder to,
take actions that favor interests of the Holders of the Controlling Class over
the interests of the Holders of one or more other Classes of Certificates; (v)
the Directing Holder shall have no liability whatsoever for having acted solely
in the interests of the Holders of the Controlling Class or the related
Companion Loan Noteholder or the Holders of the Class OEA-B Certificates, as the
case may be; and (vi) the Directing Holder shall have no liability whatsoever
for having so acted, and no Certificateholder may take any action whatsoever
against the Directing Holder, any Holder of the Controlling Class or any
director, officer, employee, agent or principal thereof for having so acted.
In addition, with respect to the 000 Xxxxxx Xxxxxx Loan Group, the
liability of the Directing Holder and Operating Advisor shall be limited as
provided in the related Co-Lender Agreement.
(d) The applicable Companion Loan Noteholders (and in the case of
the 000 Xxxxxx Xxxxxx Non-Pooled Trust Loan, the Holders of the Class OEA-B
Certificates) shall be entitled to receive, upon request made to any party
hereto, a copy of any notice or report required to be delivered (upon request or
otherwise) by such party to the related Loan Group Directing Holder or the
Trustee with respect to the related Loan Group. Any such party shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing such copies.
(e) In addition to the provisions of Section 6.11(a), with respect
to each of the Serviced Loan Groups the Special Servicer may not take any of the
actions set forth in Section 6.11(a)(i)-(xiv), without:
(i) in the case of the Tier 2 Loan Group, so long as no Consultation
Appraisal Event has occurred, consulting, on a non-binding basis, with
each Companion Loan Noteholder; and
(ii) in the case of the 000 Xxxxxx Xxxxxx Loan Group, consulting, on
a non-binding basis, with the holder of the 000 Xxxxxx Xxxxxx Pari Passu
Companion Loans (or if such Companion Loans are included in a
securitization, the party designated as having such rights in such
securitization) and the Controlling Class Directing Holder (if it is not
the Loan Group Directing Holder with respect to the 000 Xxxxxx Xxxxxx Loan
Group).
In connection with the consultation rights set forth in Section
6.11(e) above:
(1) the Special Servicer shall deliver to the holder of such
consultation rights the same notice and information to be
provided to the Directing Holder in accordance with Section
6.11(a);
(2) the party entitled to such consultation rights shall have an
opportunity to consult with the Special Servicer for a period
of 10 Business Days from the initial notice of the related
action; and
(3) if the Special Servicer determines that it needs to take
immediate action and cannot wait until the review period set
forth above expires, then, in such case, the Special Servicer
shall decide, in accordance with the Servicing Standard, what
course of action to take.
(f) The Xxxxx Fargo Tower Loan Group is serviced under the GCCFC C2
PSA. The GCCFC C2 PSA provides that the "Directing Holder" under the GCCFC C2
PSA with respect to the Xxxxx Fargo Tower Loan Group will be the Trustee, as the
holder of the Xxxxx Fargo Tower Trust Loan for the benefit of the
Certificateholders. In the event that the GCCFC C2 Master Servicer or the GCCFC
C2 Special Servicer seeks the consent of the Trustee for any action with respect
to the Xxxxx Fargo Tower Loan Group, the Trustee, the Master Servicer and the
Special Servicer shall promptly deliver any notice or request for consent that
it receives in connection with the Xxxxx Fargo Tower Loan Group to the
Controlling Class Directing Holder and shall direct the GCCFC C2 Master Servicer
or the GCCFC C2 Special Servicer, as applicable, to consult or obtain the
consent of the Controlling Class Directing Holder, as its agent, and the
Controlling Class Directing Holder shall be entitled to exercise all of the
rights granted to the "Directing Holder" under the GCCFC C2 PSA and the related
Co-lender Agreement with respect to the Xxxxx Fargo Tower Loan Group.
The Co-Lender Agreements and Lead PSAs for the Xxxxx Fargo Tower Trust Loan, the
5 Houston Center Trust Loan and the DDR Portfolio Trust Loan provide certain
consent rights that are exercisable by the majority holder of the controlling
class of a securitization. Such rights shall be exercisable by the Directing
Holder hereunder, and the Master Servicer, Special Servicer or Trustee, as
applicable, shall forward any notice or request it receives in connection
therewith to the Directing Holder and, in connection therewith, shall direct the
Lead Master Servicer or Lead Special Servicer, as applicable, to recognize the
Directing Holder as such.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into a Custodial
Account, any amount, including a P&I Advance, required to be so deposited
or remitted by it under this Agreement, which failure continues unremedied
for one Business Day following the date on which a deposit or remittance
was first required to be made; or
(ii) any failure by the Special Servicer to deposit into an REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, a Custodial Account, any amount required to be so deposited or
remitted under this Agreement, which failure continues unremedied for one
Business Day following the date on which a deposit or remittance was first
required to be made; or
(iii) any failure by the Master Servicer to deposit into, or remit
to the Trustee for deposit into, the Distribution Account, any amount
(including any P&I Advances and any amounts to cover Prepayment Interest
Shortfalls) required to be so deposited or remitted by it under this
Agreement, which failure continues unremedied until 11:00 a.m. (New York
City time) on the applicable Distribution Date, or any failure by the
Master Servicer to make, on a timely basis, the required payments
(including in the case of the Serviced Pari Passu Companion Loans any P&I
Advances) to the applicable Companion Loan Noteholder on any Loan Group
Remittance Date, which failure continues unremedied until 11:00 a.m. (New
York City time) on the first Business Day after such remittance date; or
(iv) any failure by the Master Servicer or the Special Servicer to
timely make any Servicing Advance required to be made by it hereunder,
which Servicing Advance remains unmade for a period of three Business Days
following the date on which notice of such failure shall have been given
to the Master Servicer or the Special Servicer, as the case may be, by the
Trustee or any other parties hereunder; or
(v) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other
covenants or agreements on the part of the Master Servicer or the Special
Servicer, as the case may be, contained in this Agreement, which continues
unremedied for a period of 30 days (15 days in the case of payment of
insurance premiums) after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer, as the case may be, by any other
party hereto or to the Master Servicer or the Special Servicer, as the
case may be (with a copy to each other party hereto), by any Companion
Loan Noteholder (if affected thereby) or the Holders of Certificates
entitled to at least 25% of the Voting Rights, provided, however, that
with respect to any such failure which is not curable within such 30-day
period, the Master Servicer or the Special Servicer, as the case may be,
shall have an additional cure period of 30 days to effect such cure so
long as the Master Servicer or the Special Servicer, as the case may be,
has commenced to cure such failure within the initial 30-day period and
has provided the Trustee and, if affected thereby, any Companion Loan
Noteholder with an Officer's Certificate certifying that it has diligently
pursued, and is diligently continuing to pursue, a full cure; or
(vi) any breach on the part of the Master Servicer or the Special
Servicer of any of its representations or warranties contained in this
Agreement that materially and adversely affects the interests of any Class
of Certificateholders or the Companion Loan Noteholders and which breach
continues unremedied for a period of 30 days after the date on which
written notice of such breach, requiring the same to be remedied, shall
have been given to the Master Servicer or the Special Servicer, as the
case may be, by any other party hereto or to the Master Servicer or the
Special Servicer, as the case may be (with a copy to each other party
hereto), by the Companion Loan Noteholders (if affected thereby) or the
Holders of Certificates entitled to at least 25% of the Voting Rights,
provided, however, that with respect to any such breach which is not
curable within such 30-day period, the Master Servicer or the Special
Servicer, as the case may be, shall have an additional cure period of 30
days so long as the Master Servicer or the Special Servicer, as the case
may be, has commenced to cure such breach within the initial 30-day period
and provided the Trustee and the Companion Loan Noteholders with an
Officer's Certificate certifying that it has diligently pursued, and is
diligently continuing to pursue, a full cure; or
(vii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of 60 days; or
(viii) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to it or
of or relating to all or substantially all of its property; or
(ix) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(x) one or more ratings assigned by Fitch Ratings or Xxxxx'x to the
Certificates or any Companion Loan Securities has been qualified,
downgraded or withdrawn, or otherwise made the subject of a "negative"
credit watch, which Fitch Ratings or Xxxxx'x, as applicable, has
determined and given notice in writing (including through a publication or
newsletter) or electronically (including through an internet website), is
solely or in material part a result of the Master Servicer or Special
Servicer, as the case may be, acting in such capacity;
(xi) the Master Servicer fails to be rated at least "CMS3" by Fitch
Ratings or the Special Servicer fails to be rated at least "CSS3" by Fitch
Ratings; or
(xii) the Master Servicer or the Special Servicer is removed from
S&P's approved master servicer list or special servicer list, as the case
may be, and the ratings of any of the Certificates or any Companion Loan
Securities by S&P are qualified, downgraded or withdrawn in connection
with the removal.
When a single entity acts as the Master Servicer and the Special
Servicer, an Event of Default in one capacity shall constitute an Event of
Default in the other capacity.
(b) If any Event of Default described in clauses (i) - (ix) and
(xii) of subsection (a) above shall occur with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") and shall be continuing, then, and in each and every such
case, so long as such Event of Default shall not have been remedied, the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 25% of the Voting Rights, the Trustee shall, by notice in writing to the
Defaulting Party (with a copy of such notice to each other party hereto and the
Rating Agencies) terminate, subject to Section 7.01(d), all of the rights and
obligations (but not the liabilities for actions and omissions occurring prior
thereto) of the Defaulting Party under this Agreement and in and to the Trust
Fund and the Companion Loans, other than its rights, if any, as a
Certificateholder hereunder or as the holder of the Companion Loans or any
interest therein.
If any Event of Default described in clause (x) or (xi) of
subsection (a) above shall occur with respect to the Master Servicer or the
Special Servicer (in either case, under such circumstances, for purposes of this
Section 7.01(b), the "Defaulting Party"), the Trustee shall, by notice in
writing (to be sent immediately by facsimile transmission) to the Defaulting
Party (with a copy of such notice to each other party hereto and the Rating
Agencies), terminate, subject to Section 7.01(d), all of the rights and
obligations (but not the liabilities for actions and omissions occurring prior
thereto) of the Defaulting Party under this Agreement and in and to the Trust
Fund and the Companion Loans, other than its rights, if any, as a
Certificateholder hereunder or as the holder of the Companion Loans or any
interest therein, within 30 days following the occurrence of such Event of
Default.
From and after the receipt by the Defaulting Party of such written
notice of termination, all authority and power of the Defaulting Party under
this Agreement, whether with respect to the Certificates (other than as a Holder
of any Certificate), the Loans (other than as a holder thereof or any interest
therein) or otherwise, shall pass to and be vested in the Trustee pursuant to
and under this section, and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of and at the expense
of the Defaulting Party, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Loans and
related documents, or otherwise.
The Master Servicer and the Special Servicer each agree that, if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records, including those
in electronic form, requested thereby to enable the Trustee to assume the Master
Servicer's or Special Servicer's, as the case may be, functions hereunder, and
shall cooperate with the Trustee in effecting the termination of the Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including (i) if the Master Servicer is the Defaulting Party,
the immediate transfer to the Trustee or a successor Master Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Master Servicer to a Custodial Account, the
Distribution Account, the Defeasance Deposit Account, a Servicing Account or a
Reserve Account or that are thereafter received by or on behalf of it with
respect to any Loan or (ii) if the Special Servicer is the Defaulting Party, the
transfer within two Business Days to the Trustee or a successor Special Servicer
for administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to an REO Account, a Custodial
Account, a Servicing Account or a Reserve Account or should have been delivered
to the Master Servicer or that are thereafter received by or on behalf of it
with respect to any Loan or REO Property; provided, however, that the Master
Servicer and the Special Servicer each shall, if terminated pursuant to this
Section 7.01(b), continue to be entitled to receive all amounts accrued or owing
to it under this Agreement on or prior to the date of such termination, whether
in respect of Advances or otherwise, and it shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such termination.
Any cost or expenses in connection with any actions to be taken by
any party hereto pursuant to the prior paragraph shall be borne by the
Defaulting Party and if not paid by the Defaulting Party within 90 days after
the presentation of reasonable documentation of such costs and expenses, such
expense shall be reimbursed by the Trust Fund; provided, however, that the
Defaulting Party shall not thereby be relieved of its liability for such
expenses. For purposes of this Section 7.01 and also for purposes of Section
7.03(b), the Trustee shall not be deemed to have knowledge of an event which
constitutes, or which with the passage of time or notice, or both, would
constitute an Event of Default unless a Responsible Officer of the Trustee
assigned to and working in the Trustee's Corporate Trust Office has actual
knowledge thereof or unless notice of any event which is in fact such an Event
of Default is received by the Trustee and such notice references the
Certificates, the Trust Fund or this Agreement.
(c) In the case of an Event of Default under Section 7.01(a)(x),
(xi) or (xii) of which the Trustee has notice, the Trustee shall provide written
notice thereof to the Master Servicer promptly upon receipt of such notice.
Notwithstanding Section 7.01(b), if the Master Servicer receives a notice of
termination under Section 7.01(b) solely due to an Event of Default under
Section 7.01(a)(x), (xi) or (xii) and if the terminated Master Servicer provides
the Trustee with the appropriate "request for proposal" materials within five
Business Days following such termination, then the Master Servicer shall
continue to serve in such capacity hereunder until a successor thereto is
selected in accordance with this Section 7.01(c) or the expiration of 45 days
from the Master Servicer's receipt of the notice of termination, whichever
occurs first.
Upon receipt of such "request for proposal" materials from the
terminated Master Servicer, the Trustee shall promptly thereafter (using such
"request for proposal" materials) solicit good faith bids for the rights to
master service the Loans under this Agreement from at least three (3) Persons
qualified to act as a successor Master Servicer hereunder in accordance with
Section 6.02 and Section 7.02 (any such Person so qualified, a "Qualified
Bidder") or, if three (3) Qualified Bidders cannot be located, then from as many
Persons as the Trustee can determine are Qualified Bidders; provided that at the
Trustee's request, the terminated Master Servicer shall supply the Trustee with
the names of Persons from whom to solicit such bids; and provided, further, that
the Trustee shall not be responsible if less than three (3) or no Qualified
Bidders submit bids for the right to master service the Loans under this
Agreement. The bid proposal shall require any Successful Bidder (as defined
below), as a condition of such bid, to enter into this Agreement as successor
Master Servicer, and to agree to be bound by the terms hereof, within 45 days
after the receipt of notice of termination by the terminated Master Servicer.
The Trustee shall solicit bids: (i) on the basis of such successor Master
Servicer retaining all Sub-Servicers to continue the primary servicing of the
Loans pursuant to the terms of the respective Sub-Servicing Agreements and to
enter into a Sub-Servicing Agreement with the terminated Master Servicer to
sub-service each of the Loans not subject to a Sub-Servicing Agreement at a
sub-servicing fee rate per annum equal to the Master Servicing Fee Rate minus
one (1) basis point per Loan serviced (each, a "Servicing-Retained Bid"); and
(ii) on the basis of terminating each Sub-Servicing Agreement and Sub-Servicer
that it is permitted to terminate in accordance with Section 3.23 (each, a
"Servicing-Released Bid"). The Trustee shall select the Qualified Bidder with
the highest cash Servicing-Retained Bid (or, if none, the highest cash Servicing
Released Bid) (the "Successful Bidder") to act as successor Master Servicer
hereunder. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Master Servicer pursuant to the terms hereof (and, if the
successful bid was a Servicing Retained Bid, to enter into a Sub-Servicing
Agreement with the terminated Master Servicer as contemplated above) no later
than 45 days after the receipt of notice of termination by the terminated Master
Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
The terminated Master Servicer shall be responsible for all
out-of-pocket expenses incurred in connection with the attempt to sell its
rights to service the Loans, which expenses are not reimbursed to the party that
incurred such expenses pursuant to the preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the terminated Master Servicer
received written notice of termination or no Successful Bidder was identified
within such 45-day period, the terminated Master Servicer shall reimburse the
Trustee for all reasonable "out-of-pocket" expenses incurred by the Trustee in
connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). The Trustee thereafter may act or may
select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
(d) Notwithstanding Section 7.01(b), if any Event of Default on the
part of the Master Servicer occurs that affects a Companion Loan Noteholder (or,
in the case of the 000 Xxxxxx Xxxxxx Loan Group, affects the Class OEA-B
Majority Holder and/or the holder of the 000 Xxxxxx Xxxxxx Subordinate Companion
Loan) and the Master Servicer is not otherwise terminated in accordance with
Section 7.01(b), or an Event of Default on the part of the Master Servicer
occurs that affects only one or more of the Companion Loans (or, in the case of
the 000 Xxxxxx Xxxxxx Loan Group, affects only the Class OEA-B Majority Holder
and/or the holder of the 000 Xxxxxx Xxxxxx Subordinate Companion Loan), the
Master Servicer may not be terminated in accordance with Section 7.01(b), but,
at the direction of the related Companion Loan Noteholder (and/or, in the case
of the 000 Xxxxxx Xxxxxx Loan Group, the Class OEA-B Majority Holder and/or the
holder of the 000 Xxxxxx Xxxxxx Subordinate Companion Loan), the Trustee shall
require the Master Servicer to appoint, within 30 days of the Trustee's request,
a Sub-Servicer (or, if the Loan Groups are currently being sub-serviced, to
replace, within 30 days of the Trustee's request, the then-current Sub-Servicer
with a new Sub-Servicer) with respect to the related Loan Group. In connection
with the Master Servicer's appointment of a Sub-Servicer at the request of the
Trustee in accordance with this Section 7.01(d), the Master Servicer shall
obtain written confirmation from each Rating Agency that such appointment will
not result in an Adverse Rating Event with respect to the Certificates or any
Companion Loan Securities. The related Sub-Servicing Agreement shall provide
that any Sub-Servicer appointed by the Master Servicer at the request of the
Trustee in accordance with this Section 7.01(d) shall be responsible for all
duties, and shall be entitled to all compensation, of the Master Servicer under
this Agreement with respect to the related Loan Group, except that the Master
Servicer shall be entitled to retain a portion of the Master Servicing Fee for
the Mortgage Loan in the related Loan Group calculated at 0.01% per annum. Such
Sub-Servicing Agreement shall also provide that such Sub-Servicer shall agree to
become the master servicer under a separate servicing agreement for the
applicable Loan Group in the event that the applicable Loan Group is no longer
to be serviced and administered hereunder, which separate servicing agreement
shall contain servicing and administration, limitation of liability,
indemnification and servicing compensation provisions substantially similar to
the corresponding provisions of this Agreement, except for the fact that the
applicable Loan Group and the related Loan Group Mortgaged Properties shall be
the sole assets serviced and administered thereunder and the sole source of
funds thereunder. If any Sub-Servicer appointed by the Master Servicer at the
request of the Trustee in accordance with this Section 7.01(d) shall at any time
resign or be terminated, the Master Servicer shall be required to promptly
appoint a substitute Sub-Servicer, which appointment shall not result in an
Adverse Rating Event with respect to the Certificates or any Companion Loan
Securities (as evidenced in writing by each Rating Agency). In the event that a
successor Master Servicer is acting hereunder and that successor Master Servicer
desires to terminate the Sub-Servicer appointed under this Section 7.01(d), the
terminated Master Servicer that was responsible for the Event of Default that
led to the appointment of such Sub-Servicer shall be responsible for all costs
incurred in connection with such termination, including the payment of any
termination fee.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless and until a successor is appointed
pursuant to Section 6.04, Section 6.09 or Section 7.01(c), be the successor in
all respects to the Master Servicer or the Special Servicer, as the case may be,
in its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall have all (and the former Master Servicer or the
Special Servicer, as the case may be, shall cease to have any) of the
responsibilities, duties and liabilities of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, if the Master
Servicer is the resigning or terminated party, the Master Servicer's obligation
to make P&I Advances, including in connection with any termination of the Master
Servicer for an Event of Default described in clause 7.01(a)(iii), the unmade
P&I Advances that gave rise to such Event of Default; provided that any failure
to perform such duties or responsibilities caused by the Master Servicer's or
the Special Servicer's, as the case may be, failure to provide information or
monies required by Section 7.01 shall not be considered a default by the Trustee
hereunder. The Trustee shall not be liable for any of the representations and
warranties of the resigning or terminated party or for any losses incurred by
the resigning or terminated party pursuant to Section 3.06 hereunder nor shall
the Trustee be required to purchase any Loan hereunder. As compensation
therefor, the Trustee shall be entitled to all fees and other compensation which
the resigning or terminated party would have been entitled to if the resigning
or terminated party had continued to act hereunder (except as set forth in
Section 3.11(b)). Notwithstanding the above, the Trustee may, if it shall be
unwilling to so act as either Master Servicer or Special Servicer, as the case
may be, or shall, if it is unable to so act as either Master Servicer or Special
Servicer, as the case may be, or if the Trustee is not approved as a master
servicer or a special servicer, as the case may be, by any of the Rating
Agencies, or if the Holders of Certificates entitled to a majority of the Voting
Rights so request in writing to the Trustee, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established mortgage loan
servicing institution as the successor to the resigning or terminated Master
Servicer or the Special Servicer, as the case may be, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the resigning or terminated Master Servicer or the Special Servicer, as the case
may be, hereunder; provided, however, that no such appointee shall succeed to
the rights and obligations of the Master Servicer or Special Servicer hereunder
unless (i) as confirmed in writing by each of the Rating Agencies, such
succession will not result in an Adverse Rating Event, and (ii) such appointee
makes the applicable representations and warranties set forth in Section 3.24;
and provided, further, that in the case of a resigning or terminated Special
Servicer, such appointment shall be subject to the rights of the Holders of
Certificates evidencing a majority of the Voting Rights allocated to the
Controlling Class to designate a successor pursuant to Section 6.09. No
appointment of a successor to the Master Servicer or the Special Servicer
hereunder shall be effective until the assumption by the successor to such party
of all its responsibilities, duties and liabilities under this Agreement.
Pending appointment of a successor to the Master Servicer or the Special
Servicer hereunder, the Trustee shall act in such capacity as hereinabove
provided. In connection with any such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Loans as it and such successor shall agree,
subject to the terms of this Agreement limiting the use of funds Received in
respect of a Loan Group to matters related to such Loan Group; provided,
however, that no such compensation shall be in excess of that permitted the
resigning or terminated party hereunder. Such successor and the other parties
hereto shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and the
Master Servicer shall give prompt written notice thereof to the Companion Loan
Noteholders.
(b) Not later than 10 days after a Responsible Officer of the
Trustee has notice of the occurrence of any event which constitutes or, with
notice or lapse of time or both, would constitute an Event of Default, the
Trustee shall transmit by mail to the Depositor, all the Certificateholders, the
Companion Loan Noteholders (to the extent the Trustee has received their
respective contact information from the Master Servicer, who shall provide such
information to the Trustee upon request) and the Rating Agencies notice of such
occurrence, unless such default shall have been cured.
Section 7.04 Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to each Class of Certificates affected by any Event of Default
hereunder, together with the Companion Loan Noteholders (if adversely affected
by such Event of Default), and if the Class OEA-B Certificates are adversely
affected, the Class OEA-B Majority Holder, may waive such Event of Default;
provided, however, that an Event of Default under any of clauses (i), (ii),
(iii), (x), (xi) and (xii) of Section 7.01(a) may be waived only by all of the
Certificateholders of the affected Classes, together with the Companion Loan
Noteholders, if any, that is affected by such Event of Default. Upon any such
waiver of an Event of Default, such Event of Default shall cease to exist and
shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
Voting Rights with respect to the matters described above.
The foregoing paragraph notwithstanding, if the Holders representing
at least the requisite percentage of the Voting Rights allocated to each
affected Class of Certificates (other than the Class OEA-B Certificates) desire
to waive an Event of Default by the Master Servicer, but either a Companion Loan
Noteholder or, in the case of the Class OEA-B Certificates, the Class OEA-B
Majority Holder (in each case if adversely affected thereby) does not wish to
waive that Event of Default, then those Holders may still waive that default,
and the applicable Companion Loan Noteholder or the Class OEA-B Majority Holder,
as applicable, will be entitled to request that the Master Servicer appoint,
within 60 days of the Companion Loan Noteholder's or the Class OEA-B Majority
Holder's request, as applicable, a Sub-Servicer (or, if the applicable Loan
Group is currently being subserviced, to replace, within 60 days of the
Companion Loan Noteholder's or the Class OEA-B Majority Holder's request, the
then-current Sub-Servicer with a new Sub-Servicer) with respect to the
applicable Loan Group. In connection with the Master Servicer's appointment of a
Sub-Servicer at the request of a Companion Loan Noteholder or the Class OEA-B
Majority Holder in accordance with this Section 7.04, the Master Servicer shall
obtain written confirmation from each Rating Agency that such appointment will
not result in an Adverse Rating Event with respect to the Certificates or any
Companion Loan Securities. The related Sub-Servicing Agreement shall provide
that any Sub-Servicer appointed by the Master Servicer at the request of a
Companion Loan Noteholder or the Class OEA-B Majority Holder in accordance with
this Section 7.04 shall be responsible for all duties, and shall be entitled to
all compensation, of the Master Servicer under this Agreement with respect to
the applicable Loan Group, except that the Master Servicer shall be entitled to
retain a portion of the Master Servicing Fee for the Mortgage Loan in the Loan
Group calculated at 0.01% per annum. Such Sub-Servicing Agreement shall also
provide that such Sub-Servicer shall become the master servicer under a separate
servicing agreement for the applicable Loan Group in the event that the Loan
Group is no longer to be serviced and administered hereunder, which separate
servicing agreement shall contain servicing and administration, limitation of
liability, indemnification and servicing compensation provisions substantially
similar to the corresponding provisions of this Agreement, except for the fact
that the applicable Loan Group and the Loan Group Mortgaged Properties shall be
the sole assets serviced and administered thereunder and the sole source of
funds thereunder. Such Sub-Servicer shall meet the requirements of Section 3.23.
If any Sub-Servicer appointed by the Master Servicer at the request of the
Companion Loan Noteholder or the Class OEA-B Majority Holder in accordance with
this Section 7.04 shall at any time resign or be terminated, the Master Servicer
shall be required to promptly appoint a substitute Sub-Servicer, which
appointment shall not result in an Adverse Rating Event (as evidenced in writing
by each Rating Agency). In the event a successor Master Servicer is acting
hereunder and that successor Master Servicer desires to terminate the
Sub-Servicer appointed under this Section 7.04, the terminated Master Servicer
that was responsible for the Event of Default that led to the appointment of
such Sub-Servicer shall be responsible for all costs incurred in connection with
such termination, including the payment of any termination fee.
Section 7.05 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust and on behalf of the Companion Loan Noteholders, to
take all actions now or hereafter existing at law, in equity or by statute to
enforce its rights and remedies and to protect the interests, and enforce the
rights and remedies, of the Certificateholders and the Companion Loan
Noteholders (including the institution and prosecution of all judicial,
administrative and other proceedings and the filings of proofs of claim and debt
in connection therewith). Except as otherwise expressly provided in this
Agreement, no remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy, and no delay or omission to exercise any right or remedy shall
impair any such right or remedy or shall be deemed to be a waiver of any Event
of Default.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs; provided that if the Trustee is acting as Master Servicer or
Special Servicer, it shall act in accordance with the Servicing Standard. Any
permissive right of the Trustee contained in this Agreement shall not be
construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall take such action as it deems appropriate to
have the instrument corrected. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer or the Special Servicer, and accepted by the Trustee in good faith,
pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the terms of this Agreement and the direction of any
Directing Holder, Controlling Class or Holders of Certificates entitled to
at least 25% of the Voting Rights, relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to it in its capacity as
Authenticating Agent, Certificate Registrar, Tax Administrator and
Custodian.
Section 8.02 Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or, except as provided in
Section 10.01 or 10.02, to institute, conduct or defend any litigation
hereunder or in relation hereto, at the request, order or direction of any
of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; except as provided
in Section 10.01 or 10.02, the Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default which has not been cured, to exercise such of the rights
and powers vested in it by this Agreement, and to use the same degree of
care and skill in their exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs;
(iv) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, and
except as may be provided in Section 10.01 or 10.02, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the Trustee shall remain responsible
for all acts and omissions of such agents or attorneys within the scope of
their employment to the same extent as it is responsible for its own
actions and omissions hereunder; and
(vii) the Trustee shall not be responsible for any act or omission
of the Master Servicer or the Special Servicer (unless the Trustee is
acting as Master Servicer or the Special Servicer) or the Depositor.
Section 8.03 Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Loans.
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee and the Fiscal Agent in Article II and
Section 8.16 and Section 8.18 and the signature of the Certificate Registrar and
the Authenticating Agent set forth on each outstanding Certificate, shall not be
taken as the statements of the Trustee or the Fiscal Agent, and neither the
Trustee nor the Fiscal Agent shall assume any responsibility for their
correctness. Except as expressly set forth in Section 8.16 and 8.18, the Trustee
and the Fiscal Agent make no representations as to the validity or sufficiency
of this Agreement or of any Certificate (other than as to the signature of the
Trustee set forth thereon) or of any Loan or related document. The Trustee and
the Fiscal Agent shall not be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust Fund, or any
funds deposited in or withdrawn from a Custodial Account or any other account by
or on behalf of the Depositor, the Master Servicer or the Special Servicer. The
Trustee and the Fiscal Agent shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Master Servicer or the
Special Servicer, and accepted by the Trustee in good faith, pursuant to this
Agreement.
Section 8.04 Trustee and Fiscal Agent May Own Certificates.
The Trustee, the Fiscal Agent or any agent of the Trustee and the
Fiscal Agent, in its individual or any other capacity, may become the owner or
pledgee of Certificates with (except as otherwise provided in the definition of
"Certificateholder") the same rights it would have if it were not the Trustee,
the Fiscal Agent or such agent.
Section 8.05 Fees and Expenses of Trustee; Indemnification of and by
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Distribution Account, prior to any distributions
to be made therefrom on such date, and pay to itself the Trustee Fee for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, as compensation for all services rendered by the Trustee in
the execution of the trusts hereby created and in the exercise and performance
of any of the powers and duties of the Trustee hereunder. The Trustee Fees
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) shall constitute the Trustee's
sole compensation for such services to be rendered by it.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified for and held harmless by the Trust
Fund against any loss, liability or reasonable "out-of-pocket" expense
(including costs and expenses incurred in connection with removal of the Special
Servicer and Master Servicer pursuant to Sections 7.01 and 7.02, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with,
this Agreement or the Certificates ("Trustee Liability"); provided that such
loss, liability or expense constitutes an "unanticipated expense" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii); and provided,
further, that neither the Trustee nor any of the other above specified Persons
shall be entitled to indemnification pursuant to this Section 8.05(b) for (1)
any liability specifically required to be borne thereby pursuant to the terms of
this Agreement, or (2) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of, or the
negligent disregard of, the Trustee's obligations and duties hereunder, or as
may arise from a breach of any representation, warranty or covenant of the
Trustee made herein, or (3) any loss, liability or expense that constitutes
allocable overhead. The provisions of this Section 8.05(b) and of Section
8.05(c) shall survive any resignation or removal of the Trustee and appointment
of a successor trustee.
(c) If the Trustee Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 8.05(b) is invalid
or unenforceable, then the Trust Fund shall contribute to the amount paid or
payable by the Trustee as a result of such Trustee Liability in such proportion
as is appropriate to reflect the relative fault of any of the other parties on
the one hand and the Trustee on the other in connection with the actions or
omissions which resulted in such Trustee Liability, as well as any other
relevant equitable considerations.
(d) The Trustee shall indemnify and hold harmless the Trust Fund
against any losses arising out of any errors made solely by the Trustee in
calculating distributions to be made hereunder and any other calculation or
reporting hereunder (in each case not attributable to information provided to
the Trustee by the Master Servicer or the Special Servicer); provided that such
loss arose by reason of willful misfeasance, bad faith or negligence on the part
of the Trustee. The provisions of this Section 8.05(d) shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a bank, a trust company,
an association or a corporation organized and doing business under the laws of
the United States of America or any state thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state banking authority. If such bank, trust company, association or
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such bank,
trust company, association or corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The Trustee shall at all times maintain a long-term unsecured debt
rating of at least "Aa3" by Xxxxx'x, "AA-" by S&P (or "A+" by S&P if the
short-term unsecured debt rating of the Trustee is rated at least "A-1" by S&P)
and "AA-" by Fitch Ratings (or "A+" by Fitch Ratings if the short-term unsecured
debt rating of the Trustee is rated at least "F-1" by Fitch Ratings) (or, if a
Fiscal Agent meeting the requirements of Section 8.17(a) is then currently
acting in such capacity, of at least "A3" by Xxxxx'x, "A-" by S&P and "A-" by
Fitch Ratings) (or, in the case of either Rating Agency, such other rating as
shall not result in an Adverse Rating Event with respect to the Certificates or
any Companion Loan Securities, as confirmed in writing by such Rating Agency).
The Trustee's acting in such capacity shall not adversely affect the application
of the Prohibited Transaction Exemption to the Investment Grade Certificates. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 8.07; provided that if the Trustee
shall cease to be so eligible because its combined capital and surplus is no
longer at least $50,000,000 or its long-term unsecured debt rating no longer
conforms to the requirements of the immediately preceding sentence, and if the
Trustee proposes to the other parties hereto to enter into an agreement with
(and reasonably acceptable to) each of them, and if in light of such agreement
the Trustee's continuing to act in such capacity would not (as evidenced in
writing by each Rating Agency) cause an Adverse Rating Event, then upon the
execution and delivery of such agreement the Trustee shall not be required to
resign, and may continue in such capacity, for so long as none of the ratings
assigned by the Rating Agencies to the Certificates is adversely affected
thereby. The bank, trust company, corporation or association serving as Trustee
may have normal banking and trust relationships with the Depositor, the Master
Servicer, the Special Servicer and their respective Affiliates.
Section 8.07 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, all Certificateholders and the Companion
Loan Noteholders. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor trustee acceptable to the Depositor by written
instrument, in duplicate, which instrument shall be delivered to the resigning
Trustee and to the successor trustee. A copy of such instrument shall be
delivered to the Master Servicer, the Special Servicer, the Certificateholders
and the Companion Loan Noteholders by the Depositor. If no successor trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Trustee shall fail (other than by reason of the failure of either the Master
Servicer or the Special Servicer to timely perform its obligations hereunder or
as a result of other circumstances beyond the Trustee's reasonable control), to
timely deliver or otherwise make available in accordance with this Agreement any
current or revised Distribution Date Statement, CMSA Loan Periodic Update File,
CMSA Property File, CMSA Financial File or other report or statement required by
Section 4.02 and such failure shall continue unremedied for a period of five
days after receipt of written notice by the Trustee of such failure, or if a tax
is imposed or threatened with respect to the Trust Fund by any state in which
the Trustee is located or in which it holds any portion of the Trust Fund, then
the Depositor may remove the Trustee and appoint a successor trustee acceptable
to the Depositor and the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the Certificateholders and the Companion Loan
Noteholders by the successor trustee so appointed.
(c) The Holders of Certificates entitled to 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to the
Master Servicer, one complete set to the Trustee so removed and one complete set
to the successor trustee so appointed. A copy of such instrument shall be
delivered to the Depositor, the Special Servicer, the remaining
Certificateholders and the Companion Loan Noteholders by the successor trustee
so appointed.
(d) In the event that the Trustee is terminated or removed pursuant
to this Section 8.07, all of its and any corresponding Fiscal Agent's rights and
obligations under this Agreement and in and to the Loans shall be terminated,
other than any rights or obligations that accrued prior to the date of such
termination or removal (including the right to receive all fees, expenses and
other amounts (including P&I Advances and any accrued interest thereon) accrued
or owing to it under this Agreement, with respect to periods prior to the date
of such termination or removal, and no termination without cause shall be
effective until the payment of such amounts to the Trustee and such Fiscal
Agent).
(e) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
Section 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and to the predecessor trustee an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee (at the expense of the Certificateholders
that effected the removal, if the Trustee has been removed in accordance with
Section 8.07(c) without cause or if such expenses are not paid by such
Certificateholders within ninety (90) days after they are incurred, at the
expense of the Trust, provided that such Certificateholders shall remain liable
to the Trust for such expenses) all Mortgage Files and related documents and
statements held by it hereunder (other than any Mortgage Files at the time held
on its behalf by a third-party Custodian, which Custodian shall become the agent
of the successor trustee), and the Depositor, the Master Servicer, the Special
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor, the Master Servicer, the
Special Servicer, the Certificateholders and the Companion Loan Noteholders.
Section 8.09 Merger or Consolidation of Trustee and Fiscal Agent.
Any entity into which the Trustee or the Fiscal Agent may be merged
or converted, or with which the Trustee or the Fiscal Agent may be consolidated,
or any entity resulting from any merger, conversion or consolidation to which
the Trustee or the Fiscal Agent shall be a party, or any entity succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee or the Fiscal Agent, as the case may be, hereunder, provided such entity
shall be eligible under the provisions of Section 8.06 or Section 8.17, as
applicable, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Trustee shall have the power and shall execute and deliver all instruments
to appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust Fund, and to vest in such Person or Persons, in
such capacity, such title to the Trust Fund, or any part thereof, and, subject
to the other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts vested therein pursuant to
the applicable instrument of appointment and this Section 8.10, shall vest in
and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
a Mortgage Loan Seller or any Affiliate of any of them. Neither the Master
Servicer nor the Special Servicer shall have any duty to verify that any such
Custodian is qualified to act as such in accordance with the preceding sentence.
The Trustee may enter into agreements to appoint a Custodian which is not the
Trustee, provided that such agreement: (i) is consistent with this Agreement in
all material respects and requires the Custodian to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Trustee shall
for any reason no longer act in the capacity of Trustee hereunder, the successor
Trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption, obligations of the
Custodian under such agreement or, alternatively, may terminate such agreement
without cause and without payment of any penalty or termination fee; and (iii)
does not permit the Custodian any rights of indemnification that may be
satisfied out of assets of the Trust Fund. The appointment of one or more
Custodians shall not relieve the Trustee from any of its obligations hereunder,
and the Trustee shall remain responsible for all acts and omissions of any
Custodian. In the absence of any other Person appointed in accordance herewith
acting as Custodian, the Trustee agrees to act in such capacity in accordance
with the terms hereof. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Custodian, any provision or requirement herein
requiring notice or any information or documentation to be provided to the
Custodian shall be construed to require that such notice, information or
documents also be provided to the Trustee. Any Custodian hereunder shall at all
times maintain a fidelity bond and errors and omissions policy in amounts
customary for custodians performing duties similar to those set forth in this
Agreement and, in any event, satisfying the same requirements (including as to
the insurer) as are applicable to any such bond or policy required to be
maintained by the Master Servicer pursuant to Section 3.07.
Section 8.12 Appointment of Authenticating Agents.
(a) The Trustee may appoint at the Trustee's expense an
Authenticating Agent, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, with the obligations
and responsibilities herein. Each Authenticating Agent must be organized and
doing business under the laws of the United States of America or of any State,
authorized under such laws to carry on a trust business, have a combined capital
and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The appointment of
an Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all acts and
omissions of the Authenticating Agent. In the absence of any other Person
appointed in accordance herewith acting as Authenticating Agent, the Trustee
hereby agrees to act in such capacity in accordance with the terms hereof.
Notwithstanding anything herein to the contrary, if the Trustee is no longer the
Authenticating Agent, any provision or requirement herein requiring notice or
any information or documentation to be provided to the Authenticating Agent
shall be construed to require that such notice, information or documentation
also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent appointed in accordance with this
Section 8.12 may at any time resign by giving at least 30 days' advance written
notice of resignation to the Trustee, the Master Servicer, the Special Servicer
and the Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent appointed in accordance with this Section 8.12 by giving
written notice of termination to such Authenticating Agent, the Master Servicer
and the Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 8.12, the Trustee may
appoint a successor Authenticating Agent, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Certificate
Registrar and the Depositor and shall mail notice of such appointment to all
Holders of Certificates; provided, however, that no successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
8.12. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent.
Section 8.13 Appointment of Tax Administrators.
(a) The Trustee may appoint at the Trustee's expense any Person with
appropriate tax-related experience to act as Tax Administrator hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as Tax Administrator, the Trustee agrees to act in such capacity
in accordance with the terms hereof. The appointment of a Tax Administrator
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of the Tax
Administrator. The Trustee shall cause any such Tax Administrator appointed by
it to execute and deliver to the Trustee an instrument in which such Tax
Administrator shall agree to act in such capacity, with the obligations and
responsibilities herein.
(b) Any Person into which any Tax Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Tax Administrator shall be a
party, or any Person succeeding to the corporate agency business of any Tax
Administrator, shall continue to be the Tax Administrator without the execution
or filing of any paper or any further act on the part of the Trustee or the Tax
Administrator.
(c) Any Tax Administrator appointed in accordance with this Section
8.13 may at any time resign by giving at least 30 days' advance written notice
of resignation to the Trustee, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any Tax
Administrator appointed in accordance with this Section 8.13 by giving written
notice of termination to such Tax Administrator, the Master Servicer, and the
Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Tax Administrator shall cease to be
eligible in accordance with the provisions of this Section 8.13, the Trustee may
appoint a successor Tax Administrator, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Special Servicer
and the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Tax Administrator shall be
appointed unless eligible under the provisions of this Section 8.13. Any
successor Tax Administrator upon acceptance of its appointment hereunder shall
become vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Tax
Administrator.
Section 8.14 Access to Certain Information.
(a) The Trustee shall afford to the Master Servicer, the Special
Servicer and the Depositor, and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Loans within its
control that may be required to be provided by this Agreement or by applicable
law. Such access shall be afforded without charge but only upon reasonable prior
written request and during normal business hours at the offices of the Trustee
designated by it.
(b) The Trustee shall maintain in its possession and, upon
reasonable prior written request and during normal business hours, shall make
available at its offices for review by the Depositor, the Rating Agencies, the
Companion Loan Noteholders and their designees, the Controlling Class Directing
Holder and, subject to the succeeding paragraph, any Certificateholder,
Certificate Owner or Person identified to the Trustee as a prospective
Transferee of a Certificate or an interest therein, originals and/or copies of
the following items: (i) the Prospectus, any private placement memorandum and
any other disclosure document relating to the Certificates, in the form most
recently provided to the Trustee by the Depositor or by any Person designated by
the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to
the Trustee since the Closing Date; (iii) all Certificateholder Reports made
available to Certificateholders pursuant to Section 4.02(a) since the Closing
Date; (iv) all Annual Performance Certifications delivered by the Master
Servicer and the Special Servicer, respectively, to the Trustee since the
Closing Date; (v) all Annual Accountants' Reports caused to be delivered by or
on behalf of the Master Servicer and the Special Servicer, respectively, to the
Trustee since the Closing Date; (vi) any and all notices and reports delivered
to the Trustee with respect to any Mortgaged Property as to which the
environmental testing contemplated by Section 3.09(c) revealed that either of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was not satisfied; (vii) each of the Mortgage Files, including any and all
modifications, extensions, waivers and amendments of the terms of a Loan entered
into or consented to by the Special Servicer and delivered to the Trustee
pursuant to Section 3.21; (viii) the most recent appraisal for each Mortgaged
Property and REO Property that has been delivered to the Trustee (each appraisal
obtained hereunder with respect to any Mortgaged Property or REO Property to be
delivered to the Trustee by the Master Servicer or Special Servicer, as
applicable, promptly following its having been obtained); (ix) any and all
Officer's Certificates and other evidence delivered to or by the Trustee to
support its, the Master Servicer's, the Special Servicer's or the Fiscal
Agent's, as the case may be, determination that any Advance was (or, if made,
would be) a Nonrecoverable Advance; (x) any and all information provided to the
Trustee pursuant to Section 6.11(a); (xi) the Schedule of Exceptions to Mortgage
File Delivery prepared by the Trustee pursuant to Section 2.02(a) and any
exception report prepared by the Trustee pursuant to Section 2.02(b); (xii) all
notices of a breach of representation and warranty given by or received by the
Trustee with respect to any party hereto; (xiii) any Officer's Certificate
delivered to the Trustee by the Special Servicer in connection with a Final
Recovery Determination pursuant to Section 3.09(h). The Trustee shall provide
copies of any and all of the foregoing items upon written request of any of the
parties set forth in the previous sentence; however, except in the case of the
Rating Agencies, the Trustee shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies.
Upon the reasonable request of any Certificateholder, or any Certificate Owner
identified to the Trustee to the Trustee's reasonable satisfaction, the Trustee
shall request from the Master Servicer copies (at the expense of such
Certificateholder or Certificate Owner if the Master Servicer or Special
Servicer charges a fee to cover the reasonable cost of making such copies
available) of any inspection reports prepared by the Master Servicer or the
Special Servicer, copies of any operating statements, rent rolls and financial
statements obtained by the Master Servicer or the Special Servicer; and, upon
receipt, the Trustee shall make such items available to the requesting
Certificateholder or Certificate Owner.
(c) The Trustee shall not be liable for providing or disseminating
information in accordance with Section 8.14(a) or (b).
Section 8.15 Reports to the Securities and Exchange Commission and
Related Reports.
(a) With respect to the Trust's fiscal year 2004 (and with respect
to any subsequent fiscal year for the Trust, if as of the beginning of such
subsequent fiscal year, the Registered Certificates are held (directly or, in
the case of Registered Certificates held in book-entry form, through the
Depository) by at least 300 Holders and/or Depository Participants having
accounts with the Depository), the Trustee shall:
(i) during such fiscal year, in accordance with the Exchange Act,
the rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, prepare for filing, execute on behalf
of the Depositor and properly and timely file with the Commission monthly,
with respect to the Trust, a Current Report on Form 8-K with copies of the
Distribution Date Statements, Mortgage Pool Data Update Reports and, to
the extent delivered to the Trustee, all Servicer Reports and such other
servicing information identified by the Master Servicer or the Special
Servicer, in writing, to be filed with the Commission (such other
servicing information, the "Additional Designated Servicing Information");
(ii) during such fiscal year, (A) promptly notify the Depositor of
the occurrence or existence of any of the matters identified in Section
11.11(a) and/or Section 8.15(b) (in each case to the extent that a
Responsible Officer of the Trustee has actual knowledge thereof), (B)
cooperate with the Depositor in obtaining all necessary information in
order to prepare a Current Report on Form 8-K reporting any such matter in
accordance with the Exchange Act, the rules and regulations promulgated
thereunder and applicable "no-action letters" issued by the Commission,
and (C) prepare for filing, execute and promptly file with the Commission
a Current Report on Form 8-K disclosing any such matter;
(iii) at the reasonable request of, and in accordance with the
reasonable directions of, the Certifying Person or any Performing Party
(as defined in Section 8.15(d)), prepare for filing, execute and promptly
file with the Commission an amendment to any Current Report on Form 8-K
previously filed with the Commission with respect to the Trust; and
(iv) within 90 days following the end of such fiscal year, prepare
and properly and timely file with the Commission, with respect to the
Trust, an Annual Report on Form 10-K, which complies in all material
respects with the requirements of the Exchange Act, the rules and
regulations promulgated thereunder and applicable "no-action letters"
issued by the Commission;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable (or readily convertible into a format suitable) for electronic filing
via the XXXXX system and shall not have any responsibility to convert any such
items to such format (other than those items generated by it or that are readily
convertible to such format) and (y) the Depositor shall be responsible for
preparing, executing and filing (via the XXXXX system within fifteen (15) days
or the number of days specified by the Commission following the Closing Date) a
Current Report on Form 8-K reporting the establishment of the Trust and whereby
this Agreement is filed as an exhibit. Each of the other parties to this
Agreement shall deliver to the Trustee in the format required (or readily
convertible into the format required) for electronic filing via the XXXXX
system, any and all items (including, in the case of the Master Servicer and the
Special Servicer, all Servicer Reports and Additional Designated Servicing
Information delivered to the Trustee) contemplated to be filed with the
Commission pursuant to this Section 8.15(a).
The Depositor hereby grants to the Trustee a limited power of
attorney to execute and file each such Form 10-K on behalf of the Depositor.
Such power of attorney shall continue until the earlier of either (i) receipt by
the Trustee from the Depositor of written termination of such power of attorney
and (ii) the termination of the Trust. Notwithstanding the foregoing, in the
event that the Commission does not accept a Xxxxxxxx-Xxxxx Certification signed
by the Depositor where the related Form 10-K is signed by the Trustee on behalf
of the Depositor, the Trustee shall prepare such Form 10-K to be signed by the
Depositor and the Depositor shall sign such form.
All Current Reports on Form 8-K and Annual Reports on Form 10-K that
are to be filed with respect to the Trust pursuant to this Section 8.15(a)
(collectively, including the exhibits thereto, the "Exchange Act Reports"),
exclusive of the initial Current Report on Form 8-K contemplated by clause (y)
of the proviso to the first sentence of the preceding paragraph, which is to be
executed by the Depositor, are (together with the exhibits thereto) herein
referred to as the "Subsequent Exchange Act Reports." The Trustee shall have no
liability to the Certificateholders or the Trust with respect to any failure to
properly prepare or file any of the Subsequent Exchange Act Reports to the
extent that such failure is not the result of any negligence, bad faith or
willful misconduct on its part.
(b) At all times during the Trust's fiscal year 2004 (and, if as of
the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository, at all times during
such other fiscal year), the Trustee shall provide notice of the occurrence or
existence of any of the following matters of which a Responsible Officer of the
Trustee has actual knowledge:
(i) any failure of the Trustee to make any monthly distributions to
the Holders of any Class of Certificates, which failure is not otherwise
reflected in the Distribution Date Statements and/or Servicer Reports
filed with the Commission or has not otherwise been reported to the
Depositor pursuant to any other Section of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage Loan
or an REO Property, which acquisition or disposition has not otherwise
been reflected in the Distribution Date Statements and/or Servicer Reports
filed with the Commission or has not otherwise been reported to the
Depositor pursuant to any other Section of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments, Mortgage
Loans and REO Properties), other than in the normal course of business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary routine
litigation incidental to the business of the Trust, to which the Trust (or
any party to this Agreement on behalf of the Trust) is a party or of which
any property included in the Trust Fund is subject, or any threat by a
governmental authority to bring any such legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect
of or pertaining to the Trust or any party to this Agreement, or any
actions by or on behalf of the Trust or any party to this Agreement
indicating its bankruptcy, insolvency or inability to pay its obligations;
and
(vii) any change in the rating or ratings assigned to any Class of
Certificates not otherwise reflected in the Certificateholder Reports
filed with the Commission;
provided that (1) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited (except where the Trustee received information regarding
such proceeding from the Master Servicer or the Special Servicer pursuant to the
next paragraph) to circumstances where it would be reasonable for the Trustee to
identify such property as an asset of, or as securing an asset of, the Trust or
such threatened proceedings as concerning the Trust and (2) no Responsible
Officer of the Trustee shall be deemed to have actual knowledge of the matters
described in clauses (vi) and (vii) of this Section 8.15(b) unless (x) any such
matter contemplated in clause (vi) occurred or related specifically to the Trust
or (y) such Responsible Officer was notified in a written instrument addressed
to it.
Further, each other party to this agreement shall promptly notify
the Trustee of the occurrence or existence of any of the forgoing matters in
this Section 8.15(b) of which a Servicing Officer (in the case of the Master
Servicer or the Special Servicer) or a senior officer (in the case of the
Depositor) thereof has actual knowledge.
(c) If as of the beginning of any fiscal year for the Trust (other
than fiscal year 2004), 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 and shall send notice to the Depositor, Master Servicer and Special
Servicer of such suspension.
(d) The Form 10-K required to be filed by the Trustee shall include
any certification (the "Xxxxxxxx-Xxxxx Certification") required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002, and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff) and a copy of such
Xxxxxxxx-Xxxxx Certification shall be provided to the Rating Agencies. An
officer of the Depositor shall sign the Xxxxxxxx-Xxxxx Certification. The Master
Servicer, the Special Servicer and the Trustee (each, a "Performing Party")
shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") a certification (each, a "Performance Certification"), in
the form set forth on Exhibit M hereto, on which the Certifying Person, the
Depositor (if the Certifying Person is an individual), and the Depositor's
partner, representative, Affiliate, member, manager, director, officer, employee
or agent (collectively with the Certifying Person, "Certification Parties") can
rely. In addition, in the event that any Serviced Pari Passu Companion Loan is
deposited into a commercial mortgage securitization, the Master Servicer and the
Special Servicer, on or before March 20th of each year with respect to which a
Form 10-K is filed by the related trustee for such commercial mortgage
securitization, shall provide to the Person who signs the Xxxxxxxx-Xxxxx
certification with respect to such commercial mortgage securitization a
Performance Certification (which shall address the matters contained in the
Performance Certification, but solely with respect to the related Serviced Pari
Passu Companion Loan) on which such Person and such Person's partner,
representative, Affiliate, member, manager, director, officer, employee or agent
can rely. Notwithstanding the foregoing, nothing in this paragraph shall require
any Performing Party (i) to certify or verify the accurateness or completeness
of any information provided to such Performing Party by third parties, (ii) to
certify information other than to such Performing Party's knowledge and in
accordance with such Performing Party's responsibilities hereunder or (iii) with
respect to completeness of information and reports, to certify anything other
than as to information in its actual knowledge and that all fields of
information called for in written reports prepared by such Performing Party have
been completed except as they have been left blank on their face. In the event
any Performing Party is terminated or resigns pursuant to the terms of this
Agreement, such Performing Party shall provide a Performance Certification to
the Depositor pursuant to this Section 8.15(d) with respect to the period of
time such Performing Party was subject to this Agreement.
(e) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses incurred by such Certification Party arising out of
(i) an actual breach by the applicable Performing Party of its obligations under
this Section 8.15 or (ii) any inaccuracy in the applicable Performing Party's
Performance Certification that, in the case of clause (i) or (ii), results from
the negligence, bad faith or willful misfeasance of the Trustee, the Special
Servicer or the Master Servicer, as the case may be, in connection with the
performance by the Trustee, the Special Servicer or the Master Servicer, as the
case may be, of its duties hereunder, and causes the Certification Party to
incur liability under the Securities and Exchange Act of 1934. A Performing
Party shall have no obligation to indemnify any Certification Party for an
inaccuracy in the Performance Certification of any other Performing Party.
Section 8.16 Representations and Warranties of Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee
or separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the Trustee has the full power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement, including, but not limited to, its responsibility
to make P&I Advances if the Master Servicer fails to make a P&I Advance,
will not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Trustee's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Trustee to perform its
obligations under this Agreement or the financial condition of the
Trustee.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement, or the consummation of the transactions contemplated by this
Agreement, has been obtained and is effective, except where the lack of
consent, approval, authorization or order would not have a material
adverse effect on the performance by the Trustee under this Agreement.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations and warranties of the Trustee set forth in
Section 8.16(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations, warranties and
covenants, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 8.16(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 8.16(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
Section 8.17 The Fiscal Agent.
(a) The Fiscal Agent shall at all times maintain a long-term
unsecured debt rating of no less than "Aa3" from Xxxxx'x, "AA-" from S&P (or
"A+" from S&P if the Fiscal Agent has a short-term unsecured debt rating of at
least "A-1" by S&P) and "AA-" from Fitch Ratings (or "A+" from Fitch Ratings if
the Fiscal Agent has a short-term unsecured debt rating of "F1" by Fitch
Ratings) (or, in the case of any such Rating Agency, such lower rating as will
not (as confirmed in writing by such Rating Agency) result in an Adverse Rating
Event).
(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as successor master
servicer or otherwise, and has failed to do so in accordance with the terms
hereof, the Fiscal Agent shall make such Advance when and as required by the
terms of this Agreement on behalf the Trustee as if the Fiscal Agent were the
Trustee hereunder. To the extent that the Fiscal Agent makes an Advance pursuant
to this Section 8.17(b) or otherwise pursuant to this Agreement, the obligations
of the Trustee under this Agreement in respect of such Advance shall be
satisfied. Notwithstanding anything contained in this Agreement to the contrary,
the Fiscal Agent shall be entitled to all limitations on liability, rights of
reimbursement and indemnities that the Trustee is entitled to hereunder as if it
were the Trustee.
(c) All fees and expenses of the Fiscal Agent (other than any
interest owed to the Fiscal Agent in respect of unreimbursed Advances) incurred
by the Fiscal Agent in connection with the transactions contemplated by this
Agreement shall be borne by the Trustee, and neither the Trustee nor the Fiscal
Agent shall be entitled to reimbursement therefor from any of the Trust Fund,
the Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of the Fiscal Agent set forth in this Section
8.17 or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it (or, in the case of the initial Fiscal Agent, so long
as the initial Trustee) shall act as Trustee hereunder. The Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 8.06; provided that the Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it (or, in the case of
the initial Fiscal Agent, at such time as the initial Trustee) resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make, insofar as
such appointment is necessary for such successor Trustee to satisfy the
eligibility requirements of Section 8.06). Any successor fiscal agent so
appointed shall be required to execute and deliver to the other parties hereto a
written agreement to assume and perform the duties of the Fiscal Agent set forth
in this Agreement; provided that no such successor shall become Fiscal Agent
hereunder unless either (i) it satisfies the rating requirements of Section
8.17(a) or (ii) the Trustee shall have received written confirmation from each
Rating Agency that the succession of such proposed successor fiscal agent would
not, in and of itself, result in an Adverse Rating Event.
(e) The Trustee shall promptly notify the other parties hereto, the
Certificateholders and the Companion Loan Noteholders in writing of the
appointment, resignation or removal of any Fiscal Agent.
Section 8.18 Representations and Warranties of Fiscal Agent.
(a) The Fiscal Agent hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders and the
Companion Loan Noteholders, as the Closing Date, that:
(i) The Fiscal Agent is a banking association duly organized,
validly existing and in good standing under the laws of the Netherlands.
(ii) The execution and delivery of this Agreement by the Fiscal
Agent, and the performance and compliance with the terms of this Agreement
by the Fiscal Agent, will not violate the Fiscal Agent's organizational
documents or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in a
material breach of, any material agreement or other instrument to which it
is a party or by which it is bound.
(iii) The Fiscal Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Fiscal Agent, enforceable against the Fiscal
Agent in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Fiscal Agent is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Fiscal Agent's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Fiscal Agent to perform its obligations under this
Agreement or the financial condition of the Fiscal Agent.
(vi) No litigation is pending or, to the best of the Fiscal Agent's
knowledge, threatened against the Fiscal Agent that, if determined
adversely to the Fiscal Agent, would prohibit the Fiscal Agent from
entering into this Agreement or, in the Fiscal Agent's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Fiscal Agent to perform its obligations under this
Agreement or the financial condition of the Fiscal Agent.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Fiscal Agent of or compliance by the Fiscal Agent with
this Agreement, or the consummation of the transactions contemplated by
this Agreement, has been obtained and is effective, except where the lack
of consent, approval, authorization or order would not have a material
adverse effect on the performance by the Fiscal Agent under this
Agreement.
(b) The representations and warranties of the Fiscal Agent set forth
in Section 8.18(a) shall survive the execution and delivery of this Agreement
and shall inure to the benefit of the Persons for whose benefit they were made
for so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall given prompt written notice thereof to the
other parties hereto.
(c) Any successor Fiscal Agent shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 8.18(a) subject to such appropriate modifications to the
representations and warranties set forth in Section 8.18(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer, the Fiscal Agent and the Trustee (other
than the obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment): (i) to the Certificateholders of all amounts held by or
on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Depositor, any Mortgage Loan Seller, the Special Servicer, any Controlling Class
Certificateholder or the Master Servicer of all Mortgage Loans and each REO
Property (or beneficial interest in an "REO Property" under an applicable Lead
PSA) remaining in the Lower-Tier REMIC or applicable Loan REMIC at a price equal
to (1) the sum (x) of the aggregate Purchase Price of all the Mortgage Loans and
(y) the aggregate Appraised Values of any REO Properties then included in the
Lower-Tier REMIC or applicable Loan REMIC (or beneficial interest in an "REO
Property" under an applicable Lead PSA), minus (2) if the purchaser is the
Master Servicer or the Special Servicer, the aggregate amount of unreimbursed
Advances made by such Person, together with any interest accrued and payable to
such Person in respect of unreimbursed Advances in accordance with Section
3.12(b) and, in the case of the Master Servicer, Section 4.03(d) or Section
4.03A(d), and any unpaid servicing compensation remaining outstanding (which
items shall be deemed to have been paid or reimbursed to the Master Servicer or
the Special Servicer, as the case may be, in connection with such purchase), and
(B) the final payment or other liquidation (or any advance with respect thereto)
of the last Mortgage Loan or REO Property (or beneficial interest in an "REO
Property" under an applicable Lead PSA) remaining in the Lower-Tier REMIC or
applicable Loan REMIC; and (ii) to the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer and the members, managers, officers, directors,
employees and/or agents of each of them of all amounts which may have become due
and owing to any of them hereunder; provided, however, that in no event shall
the trust created hereby continue beyond the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
Each of the Depositor, Greenwich Capital Financial Products, Inc.,
the Special Servicer, any Controlling Class Certificateholder (with priority
among such Holders being given to the Holder of Certificates representing the
greatest Percentage Interest in the Controlling Class) or the Master Servicer,
in that order of priority (with the Depositor having the most senior priority),
may at its option elect to purchase all of the Mortgage Loans and each REO
Property (or beneficial interest in an "REO Property" under an applicable Lead
PSA) remaining in the Lower-Tier REMIC or applicable Loan REMIC as contemplated
by clause (i) of the preceding paragraph by giving written notice to the other
parties hereto no later than 60 days prior to the anticipated date of purchase;
provided, however, that (i) the aggregate Stated Principal Balance of the
Mortgage Loans at the time of such election is less than 1% of the Initial Trust
Balance set forth in the Preliminary Statement, and (ii) no such Person shall
have the right to effect such a purchase if, within 30 days following its
delivery of a notice of election pursuant to this paragraph, any other such
Person with a higher priority shall give notice of its election to purchase all
of the Mortgage Loans and each REO Property (or beneficial interest in an "REO
Property" under an applicable Lead PSA) remaining in the Lower-Tier REMIC or
applicable Loan REMIC and shall thereafter effect such purchase in accordance
with the terms hereof. If the Trust Fund is to be terminated in connection with
the Master Servicer's, the Special Servicer's, a Controlling Class
Certificateholder's, a Mortgage Loan Seller's or the Depositor's purchase of all
of the Mortgage Loans and each REO Property (or beneficial interest in an "REO
Property" under an applicable Lead PSA) remaining in the Lower-Tier REMIC or
applicable Loan REMIC, the Master Servicer, the Special Servicer, such
Controlling Class Certificateholder, such Mortgage Loan Seller or the Depositor,
as applicable, shall deliver to the Trustee not later than the fifth Business
Day preceding the Distribution Date on which the final distribution on the
Certificates is to occur: (x) for deposit in the Pool Custodial Account, an
amount in immediately available funds equal to the above-described purchase
price (provided, however, that if the Loan Group REO Properties are being
purchased pursuant to the foregoing, the portion of the above-described purchase
price allocable to such REO Property (or beneficial interest in an "REO
Property" under an applicable Lead PSA) shall initially be deposited into the
related Loan Group Custodial Account, and in the case of the 000 Xxxxxx Xxxxxx
Non-Pooled Trust Loan, thereafter deposited into the Class OEA-B Sub-Account);
and (y) an Opinion of Counsel, at the expense of the party effecting the
purchase, stating that the termination of the Trust satisfies the requirements
of a qualified liquidation under Section 860F of the Code and any regulations
thereunder. In addition, the Master Servicer shall transfer to the Distribution
Account or, in the case of amounts related to the 000 Xxxxxx Xxxxxx Non-Pooled
Trust Loan, the Class OEA-B Sub-Account, all amounts required to be transferred
thereto on such Loan Group Remittance Date from the Pool Custodial Account or
from the applicable Loan Group Custodial Account pursuant to the first paragraph
of Section 3.04(b), together with any other amounts on deposit in the Pool
Custodial Account or the applicable Loan Group Custodial Account that would
otherwise be held for future distribution. Upon confirmation that such final
deposits have been made, subject to Section 3.26, the Trustee shall release or
cause to be released to the Master Servicer, the Special Servicer, the
purchasing Controlling Class Certificateholder, the purchasing Mortgage Loan
Seller or the Depositor, as applicable, the Mortgage Files and the Servicing
Files for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the Master Servicer, the
Special Servicer, the purchasing Controlling Class Certificateholder, the
purchasing Mortgage Loan Seller or the Depositor, as applicable, as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties to the
Master Servicer, the Special Servicer, the purchasing Controlling Class
Certificateholder, the purchasing Mortgage Loan Seller or the Depositor (or
their respective designees), as applicable. Any transfer of Mortgage Loans,
except in the case of the Serviced Loan Group Trust Mortgage Loans, pursuant to
this paragraph shall be on a servicing-released basis; and, if any Mortgage Loan
purchased pursuant to this Section 9.01 is a Serviced Loan Group Trust Mortgage
Loan, the release, endorsement or assignment of the documents constituting the
related Mortgage File and Servicing File shall be in the manner contemplated by
Section 3.26 hereof.
Following the date on which the aggregate Certificate Principal
Balance of the Registered Certificates is reduced to zero and the then
outstanding Certificates (excluding the Residual Interest Certificates) are held
by a single Certificateholder, such sole remaining Certificateholder (the "Sole
Certificateholder") shall have the right, with the consent of the Master
Servicer (acting in its sole discretion), to exchange all of its Certificates
for all of the Mortgage Loans and each REO Property (or beneficial interest in
an "REO Property" under an applicable Lead PSA) remaining in the Trust Fund as
contemplated by clause (ii)(B) of the first paragraph of this Section 9.01(a),
by giving written notice to all the parties hereto and the Companion Loan
Noteholders no later than 60 days prior to the anticipated date of exchange;
provided that no such exchange may occur if any of the remaining REO Properties
(or beneficial interest in an "REO Property" under an applicable Lead PSA)
relates to a Loan Group. Such Sole Certificateholder, not later than the fifth
Business Day preceding the Distribution Date on which the final distribution on
the Certificates is to occur, shall (i) deposit in the applicable Custodial
Account an amount in immediately available funds equal to all amounts then due
and owing to the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent pursuant to Section 3.05(a) or Section 3.05A, as
applicable, or that may be withdrawn from the Distribution Account pursuant to
Section 3.05(b), but only to the extent that such amounts are not already on
deposit in such Custodial Account and (ii) pay to the Trustee for its benefit an
amount, in immediately available funds, equal to $5,000 (five thousand dollars).
In addition, the Master Servicer shall transfer to the Distribution Account all
amounts required to be transferred thereto on the related Master Servicer
Remittance Date from the Pool Custodial Account pursuant to the first paragraph
of Section 3.04(b). Upon confirmation that such final deposits have been made
and following the surrender of all the Certificates on the final Distribution
Date, the Trustee shall release or cause to be released to such Sole
Certificateholder or any designee thereof, the Mortgage Files for the remaining
Mortgage Loans and REO Properties (or beneficial interest in an "REO Property"
under an applicable Lead PSA) and shall execute all assignments, endorsements
and other instruments furnished to it by such Certificateholder as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties (or
beneficial interest in an "REO Property" under an applicable Lead PSA) remaining
in the Trust Fund. Thereafter, the Trust Fund and the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer, the
Special Servicer and the Trustee (other than maintenance of books and records
and the preparation and filing of final tax returns) and the Fiscal Agent shall
terminate. Any transfer of the Mortgage Loans, except in the case of Loan Group
Trust Mortgage Loans, pursuant to this paragraph shall be on a servicing
released basis; and the release, endorsement or assignment of the documents
constituting the related Mortgage File and Servicing File shall be in the manner
contemplated by Section 3.26. For federal income tax purposes, the Sole
Certificateholder shall be deemed to have purchased the assets of the Trust Fund
for an amount equal to the unpaid principal balance, plus accrued unpaid
interest of the Mortgage Loans and the fair market value of any defaulted
Mortgage Loans or REO Property (or beneficial interest in an "REO Property"
under an applicable Lead PSA), without duplication of amounts deposited pursuant
to the fourth preceding sentence of this paragraph, and such amounts shall be
deemed to have been paid or distributed in accordance with Section 4.01.
For purposes of this Section 9.01 and any Loan Group, (i) references
to purchase of an REO Property or Properties shall mean purchase of the Trust
Fund's interest in such REO Property or Properties and (ii) the Appraised Value
of any REO Property refers to the Appraised Value of the Trust Fund's interest
in such REO Property, which (1) in the case of a Loan Group that does not have
any Pari Passu Companion Loans shall mean the lesser of (x) the Purchase Price
of the related REO Mortgage Loan and (y) the Appraised Value of such REO
Property and (2) with respect to a Loan Group comprised of one or more Pari
Passu Companion Loans shall mean the lesser of (x) the Purchase Price of the
related REO Mortgage Loan and (y) the Trust Fund's proportionate share of the
Appraised Value of such REO Property without taking into account the interest of
any related Subordinate Companion Loan.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and the Companion Loan Noteholders mailed (a) if
such notice is given in connection with the Depositor's, the Master Servicer's,
the Special Servicer's, a Mortgage Loan Seller's or a Controlling Class
Certificateholder's purchase of the Mortgage Loans and each REO Property
remaining in the Lower-Tier REMIC or applicable Loan REMIC, not earlier than the
15th day and not later than the 25th day of the month next preceding the month
of the final distribution on the Certificates or (b) otherwise during the month
of such final distribution on or before the eighth day of such month, in each
case specifying (i) the Distribution Date upon which the Trust Fund will
terminate and final payment of the Certificates will be made, (ii) the amount of
any such final payment and (iii) that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the offices of the Certificate
Registrar or such other location therein designated. The Trustee shall give such
notice to the Master Servicer, the Special Servicer and the Depositor at the
time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Distribution Account (or in the case of the 000 Xxxxxx Xxxxxx
Non-Pooled Trust Loan, the Class OEA-B Sub-Account) that are allocable to
payments on the Class of Certificates so presented and surrendered. Amounts on
deposit in the Distribution Account (other than the Class OEA-B Sub-Account) as
of the final Distribution Date, exclusive of any portion thereof that would be
payable to any Person in accordance with clauses (ii) through (viii) of Section
3.05(b), and further exclusive of any portion thereof that represents Prepayment
Premiums and/or Yield Maintenance Charges, shall be allocated in the order of
priority set forth in Section 4.01(a), in each case to the extent of remaining
available funds.
Any Prepayment Premiums and Yield Maintenance Charges on deposit in
the Distribution Account as of the final Distribution Date (net of any Workout
Fees and/or Liquidation Fees payable therefrom) shall be distributed among the
Holders of the Class XP, Class XC, Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class B, Class C, Class D, Class E, Class F,
Class G and Class H Certificates (or, if allocable to the 000 Xxxxxx Xxxxxx
Non-Pooled Trust Loan, to the Class OEA-B Certificates) in accordance with
Section 4.01(b).
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then, subject to applicable law, the Trustee shall distribute to
the Class R-II Certificateholders all unclaimed funds and other assets which
remain subject hereto.
All actual distributions on the respective Classes of Certificates
on the final Distribution Date in accordance with foregoing provisions of this
Section 9.01 shall be deemed to have been distributed first from the Lower-Tier
REMIC to the Upper-Tier REMIC in accordance with Section 4.01(i). With respect
to a Loan REMIC Loan, all actual distributions on the respective Classes of
Certificates on the final Distribution Date in accordance with foregoing
provisions of this Section 9.01 shall be deemed distributed from the Loan REMIC
to the Lower-Tier REMIC in respect of the related Loan REMIC Regular Interest.
Section 9.02 Additional Termination Requirements.
(a) If the Depositor, any Mortgage Loan Seller, any Controlling
Class Certificateholder, the Special Servicer or the Master Servicer purchases
all of the Mortgage Loans and each REO Property remaining in the Lower-Tier
REMIC or applicable Loan REMIC as provided in Section 9.01, the Trust Fund (and,
accordingly, each REMIC Pool and each Loan REMIC) shall be terminated in
accordance with the following additional requirements, unless the Person
effecting such purchase obtains at its own expense and delivers to the Trustee
and the Tax Administrator, an Opinion of Counsel, addressed to the Trustee and
the Tax Administrator, to the effect that the failure of the Trust Fund to
comply with the requirements of this Section 9.02 will not result in an Adverse
REMIC Event:
(i) the Tax Administrator shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for
each REMIC Pool pursuant to Treasury Regulations Section 1.860F-1 and
shall satisfy all requirements of a qualified liquidation under Section
860F of the Code and any regulations thereunder as set forth in the
Opinion of Counsel obtained pursuant to Section 9.01 from the party
effecting the purchase of all the Mortgage Loans and REO Property
remaining in the Lower-Tier REMIC or applicable Loan REMIC;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of the Lower-Tier REMIC (other than the Loan REMIC
Regular Interests) and each Loan REMIC to the Master Servicer, the
purchasing Mortgage Loan Seller, the purchasing Controlling Class
Certificateholder, the Special Servicer or the Depositor, as applicable,
for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each REMIC Pool and each Loan REMIC shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Tax Administrator to specify the 90-day liquidation
period for each REMIC Pool and each Loan REMIC, which authorization shall be
binding upon all successor Certificateholders.
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool and
each Loan REMIC as a REMIC under the Code and, if necessary, under applicable
state law. Such election will be made on Form 1066 or other appropriate federal
or state Tax Returns for the taxable year ending on the last day of the calendar
year in which the Certificates are issued.
(b) Each Loan REMIC Regular Interest, the Uncertificated Lower-Tier
Interests and the Regular Interest Certificates are hereby designated as
"regular interests" (within the meaning of Section 860G(a)(1) of the Code) in
the related Loan REMIC, the Lower-Tier REMIC and the Upper Tier REMIC,
respectively. Each Loan REMIC Residual Interest is designated as the single
class of "residual interests" (within the meaning of Section 860G(a)(2) of the
Code, and the Class R-I Certificates represent beneficial ownership thereof).
The Class R-I Certificates (other than the portion thereof representing the Loan
REMIC Residual Interests) and the Class R-II Certificates are hereby designated
as the single class of "residual interests" (within the meaning of Section
860G(a)(2) of the Code) in the Lower-Tier REMIC and the Upper Tier REMIC,
respectively. None of the Master Servicer, the Special Servicer or the Trustee
shall (to the extent within its control) permit the creation of any other
"interests" in the Lower-Tier REMIC, any Loan REMIC or the Upper Tier REMIC
(within the meaning of Treasury regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(d) The related Plurality Residual Interest Certificateholder as to
the applicable taxable year is hereby designated as the Tax Matters Person of
each REMIC Pool and each Loan REMIC, and shall act on behalf of the related
REMIC in relation to any tax matter or controversy and shall represent the
related REMIC in any administrative or judicial proceeding relating to an
examination or audit by any governmental taxing authority; provided that the Tax
Administrator is hereby irrevocably appointed to act and shall act (in
consultation with the Tax Matters Person for each REMIC Pool and each Loan
REMIC) as agent and attorney-in-fact for the Tax Matters Person for each REMIC
Pool and each Loan REMIC in the performance of its duties as such.
(e) For purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the Rated Final Distribution Date is hereby designated the
"latest possible maturity date" of each Class of Regular Interest Certificates
and its Corresponding Uncertificated Lower-Tier Interest or Interests. The
"latest possible maturity date" of each Loan REMIC Regular Interest is specified
in the related Loan REMIC Declaration.
(f) Except as otherwise provided in Section 3.18(a) and subsections
(i) and (j) below, the Tax Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to each REMIC Pool and each Loan REMIC (but not including any professional fees
or expenses related to audits or any administrative or judicial proceedings with
respect to the Trust Fund that involve the IRS or state tax authorities which
extraordinary expenses shall be payable or reimbursable to the Tax Administrator
from the Trust Fund, unless otherwise provided in Section 10.01(i) or 10.01(j)).
(g) Within 30 days after the Closing Date, the Tax Administrator
shall prepare and file with the IRS Form 8811, "Information Return for Real
Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized Debt
Obligations" for the Trust Fund. In addition, the Tax Administrator shall
prepare, sign and file all of the other Tax Returns in respect of each REMIC
Pool and each Loan REMIC. The expenses of preparing and filing such returns
shall be borne by the Tax Administrator without any right of reimbursement
therefor. The other parties hereto shall provide on a timely basis to the Tax
Administrator or its designee such information with respect to each REMIC Pool
and each Loan REMIC as is in its possession and reasonably requested by the Tax
Administrator to enable it to perform its obligations under this Section 10.01.
Without limiting the generality of the foregoing, the Depositor, within ten days
following the Tax Administrator's request therefor, shall provide in writing to
the Tax Administrator such information as is reasonably requested by the Tax
Administrator for tax purposes, as to the valuations and issue prices of the
Certificates, and the Tax Administrator's duty to perform its reporting and
other tax compliance obligations under this Section 10.01 shall be subject to
the condition that it receives from the Depositor such information possessed by
the Depositor that is necessary to permit the Tax Administrator to perform such
obligations.
(h) The Tax Administrator shall perform on behalf of each REMIC Pool
and each Loan REMIC all reporting and other tax compliance duties that are the
responsibility of each such REMIC Pool and each Loan REMIC under the Code, the
REMIC Provisions or other compliance guidance issued by the IRS or any state or
local taxing authority. Included among such duties, the Tax Administrator shall
provide to: (i) any Transferor of a Residual Interest Certificate, such
information as is necessary for the application of any tax relating to the
transfer of a Residual Interest Certificate to any Person who is not a Permitted
Transferee; (ii) the Certificateholders, such information or reports as are
required by the Code or the REMIC Provisions, including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required hereunder); and (iii) the IRS, the name,
title, address and telephone number of the Person who will serve as the
representative of each REMIC Pool and each Loan REMIC.
(i) The Tax Administrator shall perform its duties hereunder so as
to maintain the status of each REMIC Pool and each Loan REMIC as a REMIC under
the REMIC Provisions (and the Trustee, the Master Servicer and the Special
Servicer shall assist the Tax Administrator to the extent reasonably requested
by the Tax Administrator and to the extent of information within the Trustee's,
the Master Servicer's or the Special Servicer's possession or control). None of
the Tax Administrator, the Master Servicer, the Special Servicer, or the Trustee
shall knowingly take (or cause either REMIC Pool or any Loan REMIC to take) any
action or fail to take (or fail to cause to be taken) any action that, under the
REMIC Provisions, if taken or not taken, as the case may be, could (i) endanger
the status of either REMIC Pool or any Loan REMIC as a REMIC, or (ii) except as
provided in Section 3.18(a), result in the imposition of a tax upon either REMIC
Pool or any Loan REMIC (including, but not limited to, the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) or result in
the imposition of a tax on "net income from foreclosure property" as defined in
Section 860G(c) of the Code (any such endangerment of REMIC status or, except as
provided in Section 3.18(a), imposition of a tax, an "Adverse REMIC Event"),
unless the Tax Administrator has obtained or received an Opinion of Counsel (at
the expense of the party requesting such action or at the expense of the Trust
Fund if the Tax Administrator seeks to take such action or to refrain from
acting for the benefit of the Certificateholders) to the effect that the
contemplated action will not result in an Adverse REMIC Event. None of the other
parties hereto shall take any action or fail to take any action (whether or not
authorized hereunder) as to which the Tax Administrator has advised it in
writing that the Tax Administrator has received or obtained an Opinion of
Counsel to the effect that an Adverse REMIC Event could result from such action
or failure to act. In addition, prior to taking any action with respect to
either REMIC Pool or any Loan REMIC, or causing either REMIC Pool or any Loan
REMIC to take any action, that is not expressly permitted under the terms of
this Agreement, the Master Servicer and the Special Servicer shall consult with
the Tax Administrator or its designee, in writing, with respect to whether such
action could cause an Adverse REMIC Event. The Tax Administrator may consult
with counsel to make such written advice, and the cost of same shall be borne by
the party seeking to take the action not permitted by this Agreement, but in no
event at the cost or expense of the Trust Fund or the Trustee. At all times as
may be required by the Code, the Tax Administrator shall make reasonable efforts
to ensure that substantially all of the assets of each REMIC Pool will consist
of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(j) If any tax is imposed on either REMIC Pool or any Loan REMIC,
including "prohibited transactions" taxes as defined in Section 860F(a)(2) of
the Code, any tax on "net income from foreclosure property" as defined in
Section 860G(c) of the Code, any taxes on contributions to either REMIC Pool or
any Loan REMIC after the Startup Day pursuant to Section 860G(d) of the Code,
and any other tax imposed by the Code or any applicable provisions of State or
Local Tax laws (other than any tax permitted to be incurred by the Special
Servicer pursuant to Section 3.18(a)), such tax, together with all incidental
costs and expenses (including penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the Tax Administrator, if such tax arises out of
or results from a breach by the Tax Administrator of any of its obligations
under this Section 10.01; (ii) the Special Servicer, if such tax arises out of
or results from a breach by the Special Servicer of any of its obligations under
Article III or this Section 10.01; (iii) the Master Servicer, if such tax arises
out of or results from a breach by the Master Servicer of any of its obligations
under Article III or this Section 10.01; (iv) the Trustee, if such tax arises
out of or results from a breach by the Trustee of any of its obligations under
Article IV, Article VIII or this Section 10.01; or (v) the Trust Fund in all
other instances. Any tax permitted to be incurred by the Special Servicer
pursuant to Section 3.18(a) shall be charged to and paid by the Trust Fund. Any
such amounts payable by the Trust Fund shall be paid by the Trustee upon the
written direction of the Tax Administrator out of amounts on deposit in the
Distribution Account in reduction of the Available Distribution Amount pursuant
to Section 3.05(b).
(k) The Tax Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC Pool and each Loan REMIC
on a calendar year and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
either REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution and in no event at the
expense of the Trust Fund or the Trustee) to the effect that the inclusion of
such assets in such REMIC Pool will not cause: (i) such REMIC Pool or any Loan
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding; or (ii) the imposition of any tax on such REMIC Pool or any Loan
REMIC under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Mortgage Loans (except
in connection with (A) the default or reasonably foreseeable material default of
a Mortgage Loan, including, but not limited to, the sale or other disposition of
a Mortgaged Property acquired by deed in lieu of foreclosure, (B) the bankruptcy
of either REMIC Pool or the related Loan REMIC, (C) the termination of either
REMIC Pool or the related Loan REMIC pursuant to Article IX of this Agreement,
or (D) a purchase of Mortgage Loans pursuant to or as contemplated by Article II
or III of this Agreement); (ii) the sale or disposition of any investments in
the Pool Custodial Account or the Pool REO Account for gain; or (iii) the
acquisition of any assets for either REMIC Pool or any Loan REMIC (other than a
Mortgaged Property acquired through foreclosure, deed in lieu of foreclosure or
otherwise in respect of a defaulted Mortgage Loan and other than Permitted
Investments acquired in connection with the investment of funds in the Pool
Custodial Account or the Pool REO Account); in any event unless it has received
an Opinion of Counsel (at the expense of the party seeking to cause such sale,
disposition, or acquisition but in no event at the expense of the Trust Fund or
the Trustee) to the effect that such sale, disposition, or acquisition will not
cause: (x) either REMIC Pool or any Loan REMIC to fail to qualify as a REMIC at
any time that any Certificates are outstanding; or (y) the imposition of any tax
on either REMIC Pool or any Loan REMIC under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(n) Except as permitted by Section 3.18(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which either REMIC Pool or any Loan REMIC will receive a fee or other
compensation for services nor permit either REMIC Pool or any Loan REMIC to
receive any income from assets other than "qualified mortgages" as defined in
Section 860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
(o) The Trustee shall administer each Loan REMIC in accordance with
the related Loan REMIC Declaration and the REMIC Provisions and shall comply
with and perform all federal and, if applicable, state and local income tax
return and information reporting requirements with respect to each such Loan
REMIC, and shall otherwise administer the Loan REMIC in the same manner as
specified for the REMIC Pools in Section 10.01. The DDR Portfolio Loan Group
shall be serviced and administered in accordance with the applicable provisions
of the GMACCM C2 PSA and Article III hereof and the related Loan REMIC
Declaration. The 1801 K Street Loan Group shall be serviced and administered in
accordance with the applicable provisions of the GCCFC C2 PSA and Article III
hereof and the related Loan REMIC Declaration. The Xerox Headquarters Mortgage
Loan shall be serviced and administered in accordance with the applicable
provisions of this Agreement and the related Loan REMIC Declaration. The Trustee
shall maintain separate accounting with respect to each Loan REMIC sufficient
(i) to comply with such return and information reporting requirements, including
quarterly and annual reporting on Schedule Q to Form 1066 to the Holders of the
Class R-I Certificates with respect to the related Loan REMIC Residual Interest,
(ii) to account for each Loan REMIC Regular Interest as an asset of the
Lower-Tier REMIC, (iii) to pay or cause to be paid any federal, state or local
income tax attributable to each Loan REMIC from payments received on or with
respect to the related Mortgage Loan, and (iv) to cause any payments on the
related Loan REMIC Loan in excess of amounts distributable in respect of the
related Loan REMIC Regular Interest to be distributed in respect of the related
Loan REMIC Residual Interest to the extent provided in the related Loan REMIC
Declaration.
Section 10.02 Grantor Trust Administration.
(a) The Tax Administrator shall treat the Grantor Trust, for tax
return preparation purposes, as a grantor trust under the Code and, if
necessary, under applicable state law and will file appropriate federal or state
Tax Returns for each taxable year ending on or after the last day of the
calendar year in which the Certificates are issued.
(b) The Tax Administrator shall pay out of its own funds any and all
routine tax administration expenses of the Trust Fund incurred with respect to
the Grantor Trust (but not including any professional fees or expenses related
to audits or any administrative or judicial proceedings with respect to the
Trust Fund that involve the IRS or state tax authorities which extraordinary
expenses shall be payable or reimbursable to the Tax Administrator from the
Grantor Trust Assets in the Trust Fund unless otherwise provided in Section
10.02(e) or 10.02(f)).
(c) The Tax Administrator shall prepare, sign and file all of the
Tax Returns in respect of the Grantor Trust. The expenses of preparing and
filing such returns shall be borne by the Tax Administrator without any right of
reimbursement therefor. The Tax Administrator shall comply with such requirement
by filing Form 1041, indicating the name and address of the Trust and signed by
the Tax Administrator but otherwise left blank. There shall be appended to each
such form a schedule for each Certificateholder indicating such
Certificateholder's share of income and expenses of the Trust for the portion of
the preceding calendar year in which such Certificateholder possessed an
Ownership Interest in a Certificate. Such form shall be prepared in sufficient
detail to enable reporting on the cash or accrual method of accounting, as
applicable, and to report on such Certificateholder's fiscal year if other than
the calendar year. The other parties hereto shall provide on a timely basis to
the Tax Administrator or its designee such information with respect to the
Grantor Trust as is in its possession and reasonably requested by the Tax
Administrator to enable it to perform its obligations under this Section 10.02.
Without limiting the generality of the foregoing, the Depositor, within ten days
following the Tax Administrator's request therefor, shall provide in writing to
the Tax Administrator such information as is reasonably requested by the Tax
Administrator for tax purposes, and the Tax Administrator's duty to perform its
reporting and other tax compliance obligations under this Section 10.02 shall be
subject to the condition that it receives from the Depositor such information
possessed by the Depositor that is necessary to permit the Tax Administrator to
perform such obligations.
(d) The Tax Administrator shall perform on behalf of the Grantor
Trust all reporting and other tax compliance duties that are required in respect
thereof under the Code or other compliance guidance issued by the IRS or any
state or local taxing authority, including the furnishing to Certificateholders
of the schedules described in Section 10.01(c).
(e) The Tax Administrator shall perform its duties hereunder so as
to maintain the status of the Grantor Trust as a grantor trust under the Grantor
Trust Provisions (and the Trustee, the Master Servicer and the Special Servicer
shall assist the Tax Administrator to the extent reasonably requested by the Tax
Administrator and to the extent of information within the Trustee's, the Master
Servicer's or the Special Servicer's possession or control). None of the Tax
Administrator, Master Servicer, the Special Servicer or the Trustee shall
knowingly take (or cause the Grantor Trust to take) any action or fail to take
(or fail to cause to be taken) any action that, under the Grantor Trust
Provisions, if taken or not taken, as the case may be, could endanger the status
of the Grantor Trust as a grantor trust under the Code or result in the
imposition of a tax upon the Grantor Trust or its assets or transactions (any
such endangerment or imposition, an "Adverse Grantor Trust Event"), unless the
Tax Administrator has obtained or received an Opinion of Counsel (at the expense
of the party requesting such action or at the expense of the Trust Fund if the
Tax Administrator seeks to take such action or to refrain from taking any action
for the benefit of the Certificateholders) to the effect that the contemplated
action will not result in an Adverse Grantor Trust Event. None of the other
parties hereto shall take any action or fail to take any action (whether or not
authorized hereunder) as to which the Tax Administrator has advised it in
writing that the Tax Administrator has received or obtained an Opinion of
Counsel to the effect that an Adverse Grantor Trust Event could result from such
action or failure to act. In addition, prior to taking any action with respect
to the Grantor Trust, or causing the Trust Fund to take any action, that is not
expressly permitted under the terms of this Agreement, the Master Servicer and
the Special Servicer shall consult with the Tax Administrator or its designee,
in writing, with respect to whether such action could cause an Adverse Grantor
Trust Event to occur. The Tax Administrator may consult with counsel to make
such written advice, and the cost of same shall be borne by the party seeking to
take the action not permitted by this Agreement, but in no event at the cost or
expense of the Trust Fund, the Tax Administrator or the Trustee.
(f) If any tax is imposed on the Grantor Trust, such tax, together
with all incidental costs and expenses (including penalties and reasonable
attorneys' fees), shall be charged to and paid by: (i) the Tax Administrator, if
such tax arises out of or results from a breach by the Tax Administrator of any
of its obligations under this Section 10.02; (ii) the Special Servicer, if such
tax arises out of or results from a breach by the Special Servicer of any of its
obligations under Article III or this Section 10.02; (iii) the Master Servicer,
if such tax arises out of or results from a breach by the Master Servicer of any
of its obligations under Article III or this Section 10.02; (iv) the Trustee, if
such tax arises out of or results from a breach by the Trustee of any of its
obligations under Article IV, Article VIII or this Section 10.02; or (v) the
portion of the Trust Fund constituting the Grantor Trust in all other instances.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or the Companion Loan Noteholders, (i) to cure any ambiguity,
(ii) to correct, modify or supplement any provision herein which may be
inconsistent with any other provision herein or with the description thereof in
the Prospectus or the Prospectus Supplement, (iii) to add any other provisions
with respect to matters or questions arising hereunder which shall not be
inconsistent with the existing provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by the REMIC Provisions if the REMIC Provisions
are amended or clarified such that any such requirement may be relaxed or
eliminated, (v) to relax or eliminate any requirement imposed by the Securities
Act or the rules thereunder if the Securities Act or those rules are amended or
clarified so as to allow for the relaxation or elimination of that requirement;
(vi) as evidenced by an Opinion of Counsel delivered to the Master Servicer, the
Special Servicer and the Trustee, either (A) to comply with any requirements
imposed by the Code or any successor or amendatory statute or any temporary or
final regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any such
proposed action which, if made effective, would apply retroactively to either of
the REMIC Pools, any Loan REMICS, or the Grantor Trust at least from the
effective date of such amendment, or (B) to avoid the occurrence of a prohibited
transaction or to reduce the incidence of any tax that would arise from any
actions taken with respect to the operation of either REMIC Pool or any Loan
REMIC; or (vii) as provided in Section 5.02(d)(iv) to modify, add to or
eliminate any of the provisions of Section 5.02(d)(i), (ii) or (iii); (viii), to
otherwise modify or delete existing provisions of this Agreement; provided that
such amendment (other than any amendment for any of the specific purposes
described in clauses (i), (ii), (iv), (v), (vi) and (vii) above) shall not
adversely affect in any material respect the interests of any Certificateholder
or the Companion Loan Noteholders, as evidenced by either an Opinion of Counsel
delivered to the Trustee and each other party hereto to such effect or, in the
case of a Class of Certificates or a Class of Companion Loan Securities to which
a rating has been assigned by one or more Rating Agencies, written confirmation
from each applicable Rating Agency to the effect that such amendment shall not
result in an Adverse Rating Event with respect to such Class of Certificates or
Companion Loan Securities; and provided, further, that such amendment shall not
significantly change the activities of the Trust; and provided, further, that no
amendment may be made that changes in any manner the obligations or rights of
any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement without the
consent of the affected Mortgage Loan Seller.
In addition, in the event that one but not both of the two Mortgage
Notes evidencing either the Deerbrook Mall Mortgage Loan or the Southland Mall
Mortgage Loan are repurchased by either Commerzbank or GSMC, this Agreement may
be amended (at the expense of the party requesting such amendment), without the
consent of any Certificateholder, to add or modify provisions relating to the
related Companion Loans for purposes of the servicing and administration of the
repurchased Mortgage Notes, provided that the amendment will not adversely
affect in any material respect the interests of the Certificateholder, as
evidenced by each Rating Agency by a written confirmation (obtained at the
expense of the party that repurchases such Mortgage Note) that such amendment
would not, in and of itself, cause an Adverse Rating Event with respect to any
Class of Certificates. Prior to the effectiveness of such amendment, in the
event that one but not both of the Mortgage Notes with respect to either the
Deerbrook Mall Mortgage Loan or the Southland Mall Mortgage Loan are
repurchased, the terms of Section 3.29 shall govern the servicing and
administration of such Mortgage Loan.
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights allocated to the affected
Classes for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Loans which are required to be distributed
on any Certificate, without the consent of the Holder of such Certificate, or
which are required to be distributed to the Companion Loan Noteholders, without
the consent of the affected Companion Loan Noteholders, (ii) adversely affect in
any material respect the interests of the Holders of any Class of Certificates
or the interests of the Companion Loan Noteholders in a manner other than as
described in the immediately preceding clause (i) without the consent of the
Holders of all Certificates of such Class or the consent of the affected
Companion Loan Noteholders, as the case may be, (iii) significantly change the
activities of the Trust without the consent of the Holders of Certificates
entitled to 51% of all the Voting Rights (without regard to Certificates held by
the Depositor or any of the Depositor's Affiliates and/or agents), (iv) modify
the provisions of this Section 11.01, without the consent of the Holders of all
Certificates then outstanding and the consent of the affected Companion Loan
Noteholders, (v) modify the provisions of Section 3.21 or the Servicing
Standard, without the consent of the Holders of all Regular Interest
Certificates then outstanding and the consent of the Companion Loan Noteholders,
or (vi) modify the specified percentage of Voting Rights which are required to
be held by Certificateholders to consent or not to object to any particular
action pursuant to any provision of this Agreement without the consent of the
Holders of all Certificates then outstanding or modify the rights of the
Companion Loan Noteholders to consent or not object to any particular action
pursuant to any provision of this Agreement without the consent of all affected
Companion Loan Noteholders. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01(b), Certificates registered in the name of any party hereto
or any Affiliate thereof shall be entitled to the same Voting Rights with
respect to matters described above as they would if any other Person held such
Certificates, so long as the subject amendment does not relate to increasing its
rights or reducing or limiting its obligations hereunder as a party to this
Agreement.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the party seeking such amendment) addressed to the Trustee and each other
party hereto, to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Master Servicer or the Special Servicer in
accordance with such amendment will not result in the imposition of a tax on
either REMIC Pool pursuant to the REMIC Provisions, cause either REMIC Pool or
any Loan REMIC to fail to qualify as a REMIC, or cause the Grantor Trust to fail
to qualify as a grantor trust and (ii) such amendment complies in all material
respects with the provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the Trustee
shall send electronically (and make available on its website) a copy thereof to
each Certificateholder and the Companion Loan Noteholders.
(e) It shall not be necessary for the consent of Certificateholders
or the affected Companion Loan Noteholders under this Section 11.01 to approve
the particular form of any proposed amendment, but it shall be sufficient if
such consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
Certificateholders or the affected Companion Loan Noteholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the
Trustee may but shall not be obligated to enter into any amendment pursuant to
this Section that affects its rights, duties and immunities under this Agreement
or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Pool Custodial Account, in the case of the
Master Servicer and the Special Servicer, pursuant to Section 3.05(a), or out of
the Distribution Account, in the case of the Trustee, pursuant to Section
3.05(b).
Section 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Pool Custodial Account pursuant to Section 3.05(a) or, to the extent
that it benefits the Companion Loan Noteholders, out of the related Loan Group
Custodial Account pursuant to Section 3.05(A)(a)) to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders and/or the Companion Loan Noteholders; provided, however,
that the Trustee shall have no obligation or responsibility to determine whether
any such recordation of this Agreement is required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 11.03 Limitation on Rights of Certificateholders and the
Companion Loan Noteholders.
(a) The death or incapacity of any Certificateholder or any
Companion Loan Noteholder shall not operate to terminate this Agreement or the
Trust Fund, nor entitle such Certificateholder's or such Companion Loan
Noteholder's legal representatives or heirs to claim an accounting or to take
any action or proceeding in any court for a partition or winding up of the Trust
Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) The Certificateholders and the Companion Loan Noteholders
(except as expressly provided for herein) shall not have any right to vote or in
any manner otherwise control the operation and management of the Trust Fund, or
the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders and/or the Companion Loan Noteholders from time to time as
partners or members of an association; nor shall any Certificateholder or
Companion Loan Noteholder be under any liability to any third party by reason of
any action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) Neither any of the Certificateholders nor the Companion Loan
Noteholders shall have any right by virtue of any provision of this Agreement to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Agreement or any Loan, unless, with respect to any suit,
action or proceeding upon or under or with respect to this Agreement, such
Person previously shall have given to the Trustee a written notice of default
hereunder, and of the continuance thereof, as hereinbefore provided, and unless
also (except in the case of a default by the Trustee) the Holders of
Certificates entitled to at least 25% of the Voting Rights shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this section, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.04 Governing Law; Consent to Jurisdiction.
This Agreement will be governed by and construed in accordance with
the laws of the State of New York, applicable to agreements negotiated, made and
to be performed entirely in said state. To the fullest extent permitted under
applicable law, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent each hereby irrevocably (i) submits to the
jurisdiction of any New York State and federal courts sitting in New York City
with respect to matters arising out of or relating to this Agreement; (ii)
agrees that all claims with respect to such action or proceeding may be heard
and determined in such New York State or federal courts; (iii) waives the
defense of an inconvenient forum; and (iv) agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Section 11.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to: (i) in the case of the Depositor, Greenwich
Capital Commercial Funding Corp., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000, Attention: Xxxxx Xxxxxxx, Telecopy No.: (000) 000-0000 with a copy to
Xxxx Xxxxxxxxx, Esq., Telecopy No.: (000) 000-0000; (ii) in the case of the
Master Servicer, Wachovia Bank, National Association, NC 1075, 0000 Xxxxxxxx
Xxxxx, XXX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Greenwich Capital
Commercial Funding Corp., Commercial Mortgage Trust Series 2004-GG1; facsimile
number: (000) 000-0000; (iii) in the case of the Special Servicer, Lennar
Partners, Inc., 0000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx 00000, facsimile
number: (000) 000-0000; (iv) in the case of the Trustee, LaSalle Bank National
Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Asset-Backed Securities Trust Services Group--Greenwich Capital
Commercial Funding Corp., Commercial Mortgage Trust Series 2004-GG1, facsimile
number: (000) 000-0000; (v) in the case of the Fiscal Agent, ABN AMRO Bank N.V.,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Asset-Backed Securities Trust Services Group--Greenwich Capital Commercial
Funding Corp., Commercial Mortgage Trust Series 2004-GG1, facsimile number:
(000) 000-0000; (vi) in the case of the Underwriters, (A) Greenwich Capital
Markets, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Xxxxx Xxxxxxx, Telecopy No.: (000) 000-0000 with a copy to Xxxx Xxxxxxxxx, Esq.,
Telecopy No.: (000) 000-0000; (B) Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx, Telecopy No.: (000) 000-0000,
with a copy to: Xxxxxx Xxxxx, Esq., Telecopy No.: (000) 000-0000; (C) Banc of
America Securities LLC, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, XX
00000, Attention: Xxxxxxxxxxx X. Xxxxxxx, Telecopy No.: (000) 000-0000; (D)
Credit Suisse First Boston LLC, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxx Xxxxxxxxxx, with a telecopy to Xxxxx Xxxxxx, Esq., Legal
Compliance Department, Telecopy No.: (000) 000-0000; (E) Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X.
Xxxxxx, Telecopy No.: (000) 000-0000; and (F) Wachovia Capital Markets, LLC, 000
X. Xxxxxxxx Xxxxxx XX0000, Xxxxxxxxx, XX 00000, Attention: Xxxxx Xxxx, with a
copy to Xxxxxxxxx Xxxxxxx, Telecopy No. (000) 000-0000; (vii) in the case of the
Rating Agencies, (A) Standard & Poor's Rating Services, a division of the
XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: CMBS Surveillance Department, Telecopy No.: (000) 000-0000;
(B) Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
Attention: CMBS-Monitoring, Telecopy No.: (000) 000-0000; and (C) Fitch Ratings,
Inc., Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Commercial Mortgage Surveillance, facsimile number: (000) 000-0000; (viii) in
the case of the Companion Loan Noteholders, to their addresses as set forth in
or notified to the parties hereto pursuant to, the related Co-Lender Agreement;
(ix) in the case of the initial Controlling Class Directing Holder, Cadim TACH,
Inc. c/o CDP Capital Real Estate Advisors, CDP Capital Center, 0000
Xxxx-Xxxx-Xxxxxxxx Xxxxx, Xxxxx X-000, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx,
Attention: Xxx Xxxxxxxx, Telecopy No.: (000) 000-0000, with a copy to CWCapital
Investment LLC, One Xxxxxxx River Place, 00 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx Xxxxxx, Telecopy No.: (000) 000-0000;
and (x) in the case of the Mortgage Loan Sellers, (A) Greenwich Capital
Financial Products, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Xxxxx Xxxxxxx, Telecopy No.: (000) 000-0000, with a copy to Xxxx
Xxxxxxxxx, Esq., Telecopy No.: (000) 000-0000; (B) Xxxxxxx Sachs Mortgage
Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx,
Telecopy No.: (000) 000-0000, with a copy to: Xxxxxx Xxxxx, Esq., Telecopy No.:
(000) 000-0000; and (C) Commerzbank AG, New York Branch, 2 World Financial
Center, New York, New York 10281, Attention: Xxxxxxx X. Xxxxx, Telecopy No.:
(000) 000-0000, with a copy to Dechert LLP, 4000 Xxxx Atlantic Tower, 0000 Xxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, Esq.,
Telecopy No.: (000) 000-0000; or, as to each such Person, such other address as
may hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register.
Any notice required to be delivered to the Class OEA-B Majority
Holder, shall be delivered to Teachers Insurance and Annuity Association of
America, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxxx,
Telecopy No.: (000) 000-0000, or such other address as may hereafter be
furnished by such Person or any subsequent Class OEA-B Majority Holder to the
parties hereto in writing.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent that the
conveyance of the Depositor's right, title and interest in and to the Mortgage
Loans pursuant to this Agreement shall constitute a sale and not a pledge of
security for a loan. If such conveyance is deemed to be a pledge of security for
a loan, however, the Depositor and the Trustee agree that it is their intent
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor and the Trustee also
intend and agree that, in such event, (i) in order to secure performance of the
Depositor's obligations hereunder and payment of the Certificates, the Depositor
shall be deemed to have granted, and does hereby grant, to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets constituting the Trust Fund, including
the Mortgage Loans, all principal and interest received or receivable with
respect to the Mortgage Loans (other than principal and interest payments due
and payable prior to the Cut-off Date and any Principal Prepayments received on
or prior to the Cut-off Date), all amounts held from time to time in the Pool
Custodial Account, the Distribution Account, the Interest Reserve Account, the
Excess Liquidation Proceeds Account and, if established, the Pool REO Account
and any and all reinvestment earnings on such amounts, and all of the
Depositor's right, title and interest in and to the proceeds of any title,
hazard or other Insurance Policies related to such Mortgage Loans, and (ii) this
Agreement shall constitute a security agreement under applicable law.
Section 11.08 Xxxxxx Act.
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York Real Property Law, such mandatory provisions of said Article 4-A shall
prevail, provided that if said Article 4-A shall not apply to this Agreement,
should at any time be repealed, or cease to apply to this Agreement or be
construed by judicial decision to be inapplicable, such mandatory provisions of
such Article 4-A shall cease to have any further effect upon the provisions of
this Agreement.
Section 11.09 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders.
Each Underwriter shall be a third party beneficiary to this
Agreement solely with respect to its right to receive the reports, statements
and other information to which it is entitled hereunder, to preserve such
Underwriter's rights under Sub-Servicing Agreements as contemplated by Section
3.23(d) and, in the case of a Mortgage Loan Seller, to terminate the Trust Fund
pursuant to Section 9.01.
Each of the Sub-Servicers that is a party to a Sub-Servicing
Agreement in effect on the Closing Date (or being negotiated as of the Closing
Date and in effect within 90 days thereafter) shall be a third party beneficiary
to obligations of a successor Master Servicer under Section 3.23, provided that
the sole remedy for any claim by a Sub-Servicer as a third party beneficiary
pursuant to this Section 11.09 shall be against a successor Master Servicer
solely in its corporate capacity and no Sub-Servicer shall have any rights or
claims against the Trust Fund or any party hereto (other than a successor Master
Servicer in its corporate capacity as set forth in this Section 11.09) as a
result of any rights conferred on such Sub-Servicer as a third party beneficiary
pursuant to this Section 11.09.
The Companion Loan Noteholders and any designees thereof acting on
behalf of or exercising the rights of the Companion Loan Noteholders shall be
third-party beneficiaries to this Agreement with respect to their rights as
specifically provided for herein.
Each Lead Master Servicer, Lead Special Servicer, Lead Trustee and
Lead Fiscal Agent shall be third party beneficiaries to this Agreement solely
with respect to (i) the reimbursement of nonrecoverable advances made by such
party under the Lead PSA, as provided in Section 3.05 hereof and (ii) the
indemnification of the Lead Master Servicer, Lead Trustee, Lead Fiscal Agent and
Lead Special Servicer, as provided in Section 6.03.
Any Subsequent Master Servicer, Subsequent Trustee and Subsequent
Fiscal Agent shall be a third party beneficiary to this Agreement solely with
respect to the recoverability of any back-up P&I Advances pursuant to Section
3.05A, and to the extent required under the related Co-Lender Agreement.
Each of the Master Servicer and the Special Servicer acknowledges
that upon the securitization of a Serviced Pari Passu Companion Loan, the
Subsequent Trustee will be the owner of such Mortgage Note and that, pursuant to
the Subsequent PSA, the Subsequent Master Servicer will be entitled to enforce
the rights of the Subsequent Trustee with respect to such Loan under the related
Co-Lender Agreement and this Agreement.
In the event that one, but not both, of the Mortgage Notes with
respect to either the Deerbrook Mall Mortgage Loan, the Southland Mall Mortgage
Loan or the Water Tower Place Trust Loan are repurchased, the holder of the
repurchased Mortgage Note shall be a third party beneficiary of this Agreement
to the same extent as if they were Companion Loan Noteholders, as contemplated
by Section 3.29.
This Agreement may not be amended in any manner that would adversely
affect the rights of any such third party beneficiary without its consent. No
other Person, including any Mortgagor, shall be entitled to any benefit or
equitable right, remedy or claim under this Agreement.
Section 11.10 Article and Section Headings.
The article and Section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 11.11 Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Fiscal Agent, the Master
Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by the applicable Mortgage
Loan Seller pursuant to Section 2.03;
(v) any change in the location of the Distribution Account or the
Interest Reserve Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or REO Property.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of any Custodial Account.
(c) The Special Servicer shall furnish each Rating Agency with
respect to a Specially Serviced Loan such information as the Rating Agency shall
reasonably request and which the Special Servicer can reasonably provide in
accordance with applicable law, with copies to the Trustee.
(d) To the extent applicable, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance described in
Section 3.14;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.15; and
(iii) any Officer's Certificate delivered by it to the Trustee
pursuant to Section 3.12(d), 4.03(c) or 4.03A(c).
(e) The Trustee shall (i) make available to each Rating Agency, upon
reasonable notice, the items described in Section 8.14(b) and (ii) promptly
deliver to each Rating Agency a copy of any notices given pursuant to Section
7.03(a) or Section 7.03(b).
(f) The Trustee shall promptly deliver to each Rating Agency a copy
of each of the statements and reports described in Section 4.02(a) that is
prepared by it.
(g) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
Section 11.12 Global Opinions.
Notwithstanding anything herein to the contrary, where any party
hereto is required or permitted to rely upon an Opinion of Counsel with respect
to any particular matter, such Opinion of Counsel need not specifically
reference such particular matter, but rather such Opinion of Counsel may address
general matters of law in respect of nonspecific circumstances which clearly
encompass the facts of such particular matter (any such Opinion of Counsel, a
"Global Opinion"); provided that no Global Opinion may be relied upon if it is
more than 12 months old or if the subject party has reason to believe that such
Global Opinion no longer expresses a correct legal opinion.
Section 11.13 Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
GREENWICH CAPITAL COMMERCIAL
FUNDING CORP.,
Depositor
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION,
Master Servicer
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
LENNAR PARTNERS, INC.,
Special Servicer
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
LASALLE BANK NATIONAL
ASSOCIATION,
Trustee
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
ABN AMRO BANK N.V.,
Fiscal Agent
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice Presdient
By: /s/ Xxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxx Xxxx
Title: Senior Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 13th day of May, 2004, before me, a notary public in and for
said State, personally appeared Xxxxxx X. Xxxx, known to me to be a Vice
President of Greenwich Capital Commercial Funding Corp., one of the entities
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Notary Public
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 10th day of May, 2004, before me, a notary public in and for
said State, personally appeared Xxxxx X. Xxxxx, known to me to be a Vice
President of Wachovia Bank, National Association, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxxxxx
---------------------------------------
Notary Public
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
On the 11th day of May, 2004, before me, a notary public in and for
said State, personally appeared Xxxxxx X. Xxxxx, known to me to be a Vice
President of Lennar Partners, Inc., one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
Notary Public
[Notarial Seal]
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 13th day of May, 2004, before me, a notary public in and for
said State, personally appeared Xxxxx X. Xxxxxx, known to me to be
an Assistant Vice President of LaSalle Bank National Association, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X'Xxxx
---------------------------------------
Notary Public
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 13th day of May, 2004, before me, a notary public in and for
said State, personally appeared Xxxxx X. Xxxx and Xxxxxxx Xxxx, known to me to
be a First Vice President and Senior Vice President, respectively, of ABN AMRO
Bank N.V., one of the entities that executed the within instrument, and also
known to me to be the persons who executed it on behalf of such entity, and
acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X'Xxxx
---------------------------------------
Notary Public
SCHEDULE I
MORTGAGE LOAN SCHEDULE
GCCFC GCFP
04-GG1 Control
LOAN ID Number GCFP Loan ID Loan Name Property Name
------------------------------------------------------------------------------------------------------------------------------------
1 09-1001116 09-1001116 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
2 03-0768 00-0000000 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
3 03-0720 00-0000000 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
4 04-0008 04-0008 Aegon Center Aegon Center
5 09-1001114 09-1001114 Xxxxxxxxx Xxxx Xxxxxxxxx Xxxx
0 03-0924 03-0924 Greensboro Corporate Center Greensboro Corporate Center
7 28918 00-0000000 Xxxxx Fargo Tower Xxxxx Fargo Tower
8 09-1001115 09-1001115 Xxxxxxxxx Xxxx Xxxxxxxxx Xxxx
0 03-0358 00-0000000 Glendale Center Glendale Center
10 03-0951 00-0000000 000 Xxxxxxxx Xxxxx 000 Xxxxxxxx Xxxxx
11 03-0535 00-0000000 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
00 00000 28799 000 Xxxxx XxXxxxx 000 Xxxxx XxXxxxx
13 334381071 09-0001870 Xxx Xxx Xxxx Xxx Xxx Xxxx
00 09-1001099B 09-1001099 Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx
00 03-0816 00-0000000 Davies Pacific Center Davies Pacific Center
16 09-1001093C 09-1001093 DDR Portfolio
16.01 09-1001093C 09-1001093-A DDR Portfolio Brook Highland Plaza Shopping Center
16.02 09-1001093C 09-1001093-B DDR Portfolio Meridian Crossroads Shopping Center
16.03 09-1001093C 09-1001093-C DDR Portfolio University Center
16.04 09-1001093C 09-1001093-D DDR Portfolio Uptown Solon Shopping Center
16.05 09-1001093C 09-1001093-E DDR Portfolio Big Oaks Crossing
16.06 09-1001093C 09-1001093-F DDR Portfolio North Pointe Shopping Center
16.07 09-1001093C 09-1001093-G DDR Portfolio Green Ridge Square
16.08 09-1001093C 09-1001093-H DDR Portfolio Indian Hills Plaza
16.09 09-1001093C 09-1001093-I DDR Portfolio Oxford Commons Center
16.10 09-1001093C 09-1001093-J DDR Portfolio Jacksonville Regional ShoppingCenter
17 03-0499 00-0000000 Sealy Industrial Portfolio
17.01 03-0499 00-0000000 Sealy Industrial Portfolio Centennial / Six Flags
17.02 03-0499 00-0000000 Sealy Industrial Portfolio Mockingbird
17.03 03-0499 00-0000000 Sealy Industrial Portfolio Xxxxxxxxx
17.04 03-0499 00-0000000 Sealy Industrial Portfolio Xxxxxx
17.05 03-0499 00-0000000 Sealy Industrial Portfolio Crosstimbers
17.06 03-0499 00-0000000 Sealy Industrial Portfolio Irving
17.07 03-0499 00-0000000 Sealy Industrial Portfolio Minimax 3
17.08 03-0499 00-0000000 Sealy Industrial Portfolio Xxx Houston
17.09 03-0499 00-0000000 Sealy Industrial Portfolio Avenue S
17.10 03-0499 00-0000000 Sealy Industrial Portfolio Minimax 2
17.11 03-0499 00-0000000 Sealy Industrial Portfolio Ambassador
17.12 03-0499 00-0000000 Sealy Industrial Portfolio Avenue T
17.13 03-0499 00-0000000 Sealy Industrial Portfolio Statesman
17.14 03-0499 00-0000000 Sealy Industrial Portfolio Vantage
18 01-1001101B 00-0000000 5 Houston Center 5 Houston Center
19 04-0014 00-0000000 Best Plaza Best Plaza
20 04-0025 04-0025 Severance Town Center Severance Town Center
21 09-0001106 09-1001106 Rechler Industrial Portfolio IV (10-year)
21.01 09-0001106 09-1001106-F Rechler Industrial Portfolio IV (10-year) 0000 Xxxxxxx Xxxxx North
21.02 09-0001106 09-1001106-B Rechler Industrial Portfolio IV (10-year) 000 Xxxxxxx Xxxxx
21.03 09-0001106 09-1001106-P Rechler Industrial Portfolio IV (10-year) 000 Xxxxxxxxx Xxxx
21.04 09-0001106 09-1001106-S Rechler Industrial Portfolio IV (10-year) 00 Xxxxxxx Xxxxxxxxx
21.05 09-0001106 09-1001106-I Rechler Industrial Portfolio IV (10-year) 00 Xxxx Xxxxxx
21.06 09-0001106 09-1001106-D Rechler Industrial Portfolio IV (10-year) 000 Xxxxxx Xxxxx
21.07 09-0001106 09-1001106-A Rechler Industrial Portfolio IV (10-year) 00 Xxxxxxx Xxxxx
21.08 09-0001106 09-1001106-O Rechler Industrial Portfolio IV (10-year) 00 Xxxx Xxxxxx
21.09 09-0001106 09-1001106-C Rechler Industrial Portfolio IV (10-year) 000 Xxxxxx Xxxxx
21.10 09-0001106 09-1001106-E Rechler Industrial Portfolio IV (10-year) 0000 Xxxxxxxx Xxxxxx
21.11 09-0001106 09-1001106-Q Rechler Industrial Portfolio IV (10-year) 595 Old Willets Path
21.12 09-0001106 09-1001106-H Rechler Industrial Portfolio IV (10-year) 00 Xxxx Xxxxxx
21.13 09-0001106 09-1001106-N Rechler Industrial Portfolio IV (10-year) 00 Xxxxxxxxx Xxxx
21.14 09-0001106 09-1001106-J Rechler Industrial Portfolio IV (10-year) 00 Xxxx Xxxxxx
21.15 09-0001106 09-1001106-K Rechler Industrial Portfolio IV (10-year) 00 Xxxx Xxxxxx
21.16 09-0001106 09-1001106-R Rechler Industrial Portfolio IV (10-year) 631-641 Old Willets Path
21.17 09-0001106 09-1001106-L Rechler Industrial Portfolio IV (10-year) 00 Xxxxxxxxx Xxxx
21.18 09-0001106 09-1001106-G Rechler Industrial Portfolio IV (10-year) 000 Xxxxxxxxxxx Xxxx
21.19 09-0001106 09-1001106-M Rechler Industrial Portfolio IV (10-year) 00 Xxxx Xxxxxx
00 329620596 09-0001841 Xerox Corporate Headquarters Xerox Corporate Headquarters
23 302073238 09-0001770 Xxxxxxx Fair Shopping Center Xxxxxxx Fair Shopping Center
24 316293454 09-0001806 Xxxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxxxx
00 04-0047 04-0047 Rolling Valley Rolling Valley
26 311570127 09-0001773 Riverbend Centre Riverbend Centre
27 09-1001105 09-1001105 Rechler Industrial Portfolio III (8.5-year)
27.01 09-1001105 09-1001105-L Rechler Industrial Portfolio III (8.5-year) 000 Xxxx Xxxxxx
27.02 09-1001105 09-1001105-D Rechler Industrial Portfolio III (8.5-year) 0000 Xxxxxxx Xxxxx North
27.03 09-1001105 09-1001105-I Rechler Industrial Portfolio III (8.5-year) 000 Xxxx Xxxxxx
27.04 09-1001105 09-1001105-O Rechler Industrial Portfolio III (8.5-year) 933 Vanderbilt Motor Parkway
27.05 09-1001105 09-1001105-H Rechler Industrial Portfolio III (8.5-year) 000 Xxxxxxxxx Xxxx
27.06 09-1001105 09-1001105-C Rechler Industrial Portfolio III (8.5-year) 000 Xxxxxx Xxxxx
27.07 09-1001105 09-1001105-A Rechler Industrial Portfolio III (8.5-year) 00 Xxxxxxx Xxxxx
27.08 09-1001105 09-1001105-M Rechler Industrial Portfolio III (8.5-year) 651-661 Old Willets Path
27.09 09-1001105 09-1001105-B Rechler Industrial Portfolio III (8.5-year) 00 Xxxxxxx Xxxxx
27.10 09-1001105 09-1001105-J Rechler Industrial Portfolio III (8.5-year) 000 Xxxx Xxxxxx
27.11 09-1001105 09-1001105-K Rechler Industrial Portfolio III (8.5-year) 000 Xxxx Xxxxxx
27.12 09-1001105 09-1001105-F Rechler Industrial Portfolio III (8.5-year) 00 Xxxx Xxxxxx
27.13 09-1001105 09-1001105-N Rechler Industrial Portfolio III (8.5-year) 000 Xxx Xxxxxxx Xxxx
27.14 09-1001105 09-1001105-G Rechler Industrial Portfolio III (8.5-year) 00 Xxxx Xxxxxx
27.15 09-1001105 09-1001105-E Rechler Industrial Portfolio III (8.5-year) 000 Xxxxxxxxxxx Xxxx
28 324840940 09-0001864 Burlington Office Center Burlington Office Center
29 03-0467 00-0000000 Chesterfield Square Chesterfield Square
30 03-0944 00-0000000 Price Self Storage - Pacific Beach/ Walnut Creek
30.01 03-0944 00-0000000 Price Self Storage - Pacific Beach/ Walnut Creek Price SS Pacific Beach
30.02 03-0944 00-0000000 Price Self Storage - Pacific Beach/ Walnut Creek Price SS Walnut Creek
31 03-0584 03-0584 Xxxxxxx Xxxx Xxxxxx Xxxxxxx Xxxx Xxxxxx
00 04-0026 04-0026 0000 Xxxxxxxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxxx
33 03-0360 00-0000000 Xxxxxxxx Xxxxxxxxxxx Xxxxxxxx Xxxxxxxxxxx
00 03-0786 00-0000000 Shops at Somerset Square Shops at Somerset Square
35 03-0945 03-0945 Crosswest Office Center Crosswest Office Center
36 313541454 09-0001791 The Sovereign The Sovereign
37 03-0359 00-0000000 Merced Marketplace Merced Marketplace
38 326294415 09-0001865 Xxxxxxxxxx Xxxxx Xxxxxxxxxx Xxxxx
00 327905776 09-0001862 Xxxxxxxxx Xxxxx XXX Xxxxxxxxx Xxxxx XXX
00 04-0168 04-0168 Xxxxxxxx Xxxxxx Shopping Center Xxxxxxxx Xxxxxx Shopping Center
41 03-0065 00-0000000 Sycamore Mineral Springs Resort Sycamore Mineral Springs Resort
42 312012147 09-0001772 Veterans AMC Theater Veterans AMC Theater
43 224241575 09-0001789 The Reserve at Deerwood The Reserve at Deerwood
44 307724083 09-0001780 000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
45 03-0479 00-0000000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx
00 00000 00-0000000 0000 X Xxxxxx 0000 X Xxxxxx
47 316914162 09-0001820 Summit Office Park Summit Office Park
48 03-0716 00-0000 Xxxxx Xxxxxx Shopping Center Towne Square Shopping Center
49 04-0302 04-0302 Doubletree Club Boston Bayside Doubletree Club Boston Bayside
50 320262728 09-0001809 Sunrise Mesa Mobile Home Park Sunrise Mesa Mobile Home Park
00 000000000 00-0000000 Arvada Xxxx Xxxx Xxxxxx Xxxxxx Xxxx Xxxx Center
52 04-0258 00-0000 Xxxxxxx Xxxxxxxx Xxxx Xxxxxxx Xxxxxxxx Xxxx
53 304554535 09-0001827 Xxxxx Springs Crossing Shopping Center Xxxxx Springs Crossing Shopping Center
54 321942022 09-0001817 Xxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxx Xxxxxx Xxxxxxxx Center
55 03-0834 03-0834 Coventry Commons Coventry Commons
56 04-0156 00-0000000 Stop and Shop Bristol Stop and Shop Bristol
57 04-0212 00-0000000 Market City Shopping Center Market City Shopping Center
58 04-0040 00-0000000 Towne Centre Xxxxx Xxxxx Xxxxxx Xxxxx
00 00-0000 00-0000 Xxxxxx Xxxx Xxxxxx Xxxxxx Xxxx Office
60 323802178 09-0001814 Mountain Lodge Apartments Mountain Lodge Apartments
61 313361209 00-0000000 Stonegate Mobile Home Park Stonegate Mobile Home Park
00 000000000 09-0001813 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx
63 03-0832 03-0832 Celebration at Six Forks Celebration at Six Forks
64 309011621 09-0001866 Palisades X Xxxxxx Xxxxxxxx Xxxxxxxxx X Xxxxxx Xxxxxxxx
00 00-0000 03-0968 Sheraton Four Points - San Francisco Sheraton Four Points - San Francisco
66 332100717 09-0001878 Richland Medical Three Richland Medical Three
67 03-0956 00-0000000 Xxxxxx Xxxxx Xxxx Xxxxxx Xxxxxx Xxxxx Xxxx Center
68 325962624 09-0001868 Milestone South Shopping Center Milestone South Shopping Center
69 04-0267 00-0000000 Neiman Marcus - Fashion Valley Neiman Marcus - Fashion Valley
70 329394223 09-0001856 Willows of Lone Mountain West Willows of Lone Mountain West
71 04-0133 04-0133 Reata Apartments Reata Apartments
72 03-0193 00-0000000 Friendship Center Friendship Center
73 316335389 09-0001833 Xxxxxxxxx Xxxxx Xxxxxxxxx Xxxxx
00 03-0959 00-0000000 Victorville Pavillion Victorville Pavillion
75 04-0167 00-0000 Xxx Xxxxxxx Xxxxxx Xxx Xxxxxxx Xxxxxx
76 04-0082 04-0082 00-00 Xxxx Xxxxxxx 00-00 Xxxx Xxxxxxx
77 04-0413 04-0413 22 West Xxxxxxx 22 West Xxxxxxx
78 03-0671 03-0671 Holiday Inn at Xxxxxx City Holiday Inn at Xxxxxx City
79 03-0692 03-0692 Sabre MHC Sabre MHC
80 328321211 09-0001855 Gwinnett Professional Center Gwinnett Professional Center
81 03-0754 00-0000000 Xxxxxxxx Xxxxxxxx Xxxx Xxxxxxxx Xxxxxxxx Xxxx
82 316455702 09-0001818 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx
83 232633234 09-0001731 Westfield Corporate Center Westfield Corporate Center
84 332235415 09-0001871 Citiplace III Citiplace III
85 331891859 09-0001846 The Ridges of Geneva East Apartments The Ridges of Geneva East Apartments
86 333795837 09-0001863 Scripps Ranch Technology Center Scripps Ranch Technology Center
87 329701408 09-0001861 Xxxxxx Xxxxx Xxxxxx Xxxxx
00 317870479 09-0001812 Marietta Professional Center Marietta Professional Center
89 330364742 09-0001903 Arbor Square Shopping Center Arbor Square Shopping Center
90 331553898 09-0001880 Greenlawn Crossing II Greenlawn Crossing II
91 04-0144 04-0144 Spring Gulch RV Spring Gulch RV
92 04-0281 00-0000000 Xxxx Xxxxx Xxxxx Xxxx Xxxxx Xxxxx
00 00-0000 00-0000000 Hidden Valley Village Hidden Valley Village
94 327311717 09-0001853 Hampton R&D Building Hampton R&D Building
95 03-0797 00-0000000 Xxxxxxxxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxx Xxxxxxxxxx Xxxxxxxxx
00 323793801 09-0001850 Pecos Terrace II Pecos Terrace II
97 03-0845 00-0000000 Arrowhead Self Storage Arrowhead Self Storage
98 03-0901 03-0901 Hollywood Center Hollywood Center
99 130280960 09-0001876 Milestone III Shopping Center Milestone III Shopping Center
100 03-0112 00-0000000 000 Xxxxxxxxxx Xxxxx 000 Xxxxxxxxxx Xxxxx
101 320582827 09-0001808 Valley View Industrial Portfolio
101.01 320582827 09-0001808-A Valley View Industrial Portfolio FreshPoint Foods
101.02 320582827 09-0001808-B Valley View Industrial Portfolio Crescent Electric
101.03 320582827 09-0001808-C Valley View Industrial Portfolio United Xxxxx Xxxx & Xxxxxx Chemical
102 309070748 09-0001783 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
103 04-0143 04-0143 Twin Lakes RV Twin Lakes RV
104 317683849 09-0001811 Union Town Center Union Town Center
105 311230870 09-0001785 Duluth Professional Center Duluth Professional Center
106 315732671 09-0001799 Lakeshore Grande Apartments Lakeshore Grande Apartments
107 300620460 09-0001819 Enterprise Portfolio
107.01 300620460 09-0001819-A Enterprise Portfolio One Xxxxxx Drive
107.02 300620460 09-0001819-B Enterprise Portfolio 000 Xxxx Xxxx Xxxxxx
108 317865091 09-0001831 Berryland Shopping Center Berryland Shopping Center
109 327284209 09-0001859 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx
000 332154781 09-0001847 Xxxxx Xxxx Xxxxxxx Xxxxx Xxxx Xxxxxxx
000 305814038 09-0001762 Bodega Business Park Bodega Business Park
112 03-0706 00-0000 Xxxxxxxxxxx Xxxxxxx Xxxxxxxxxxx Xxxxxxx
113 04-0263 04-0263 000 Xxxxxxxxx Xxxxxx (Ground Lease) 000 Xxxxxxxxx Xxxxxx (Ground Lease)
114 320632176 09-0001802 Summit Place Shopping Center Summit Place Shopping Center
115 04-0169 400070 Quail Park at El Dorado Hills Quail Park at El Dorado Hills
116 314161136 09-0001765 Shoppes at North Augusta Shoppes at North Augusta
117 312760597 09-0001852 Twinsburg Town Center III Twinsburg Town Center III
118 03-0783 400067 Jamestown Eckerd Jamestown Eckerd
119 03-0857 400068 2675 Xxxxxxx/6145 Xxxxxxxx 2675 Xxxxxxx/6145 Xxxxxxxx
120 331593332 09-0001844 Xxxxx Xxxxx Xxxxxxxxxx Xxxxx Xxxxx Xxxxxxxxxx
000 317091638 09-0001822 Greatwood Lakes Office Building Greatwood Lakes Office Building
122 332183897 09-0001877 Rancho Santa Xxxxxxx MHP Rancho Santa Xxxxxxx MHP
123 315514662 09-0001816 Xxxxxxx Business Center Xxxxxxx Business Center
124 323770483 09-0001849 Pecos Terrace I Pecos Terrace I
125 03-0516 000000 Xxxx Xxxxx Xxxx Xxxxx
Companion Notes
2-C-A 03-0768 00-0000000 000 Xxxxxx Xxxxxx - A notes
2-C-B1 03-0768 00-0000000 000 Xxxxxx Xxxxxx - X0 Note (OEA-B Certificates)
2-C-B2 03-0768 00-0000000 000 Xxxxxx Xxxxxx - X0 Xxxx
0-X 00-0000 00-0000000 000 Xxxxxxx Xxxxxx
00-X 03-0816 00-0000000 Davies Pacific Center
41-C 03-0065 00-0000000 Sycamore Mineral Springs Resort
44-C 307724083 09-0001780 000 Xxxxxxxx Xxxxxx - X Note
50-C 320262728 09-0001809 Sunrise Mesa Mobile Home Park - B Note
60-C 323802178 09-0001814 Mountain Lodge Apartments - B Note
64-C 309011621 09-0001866 Palisades I Office Building - B Note
108-C 317865091 09-0001831 Berryland Shopping Center - B Note
(TABLE CONTINUED)
GCCFC General
04-GG1 Property
LOAN ID Type Detailed Property Type Address
------------------------------------------------------------------------------------------------------------------------------------
1 Office General Urban 000 Xxxxx Xxxxxx
2 Office General Urban 000 Xxxxxx Xxxxxx
3 Office General Urban 000 Xxxxxxx Xxxxxx
0 Office General Urban 000 X. Xxxxxx Xxxxxx
5 Retail Regional Mall 24500 Hesperian Boulevard
6 Office General Suburban 8401-8405 Greensboro Drive
7 Office General Urban 000 Xxxxx Xxxxx Xxxxxx
8 Retail Regional Mall 20131 US Highway 59 N.
9 Office General Urban 611 North Brand Boulevard
10 Office General Urban 000 Xxxxx Xxxxxxxx Xxxxxx
11 Office General Urban 000 Xxxx Xxxxxx
12 Office General Urban 000 Xxxxx XxXxxxx
13 Retail Anchored 33 Le Count Place
14 Retail Anchored 000 Xxxxx Xxxxxxxx Xxxxxx
15 Office General Urban 000 Xxxxxx Xxxxxx
00
16.01 Retail Anchored 0000 Xxxxxxx 000 Xxxxx
16.02 Retail Power Center/Big Box SEC Fairview Avenue and Eagle Road
16.03 Retail Power Center/Big Box 326 - 000 X. Xxxxxxx Xxxxxx
16.04 Retail Power Center/Big Xxx 0000 Xxxxx Xxxxx
16.05 Retail Anchored 0000 X. Xxxxxxx Xxxxxx
16.06 Retail Anchored 0000 Xxxxxx Xxxxxx
16.07 Retail Power Center/Big Box 0000 Xxxxxx Xxxxxx
16.08 Retail Anchored 0000 X. Xxxx Xxxxx Xxxx
16.09 Retail Power Center/Big Box 0000 Xxxxxxx Xxxx
16.10 Retail Anchored 0000 Xxxx Xxxxxx
17
17.01 Industrial Warehouse 2400 Centennial, 000 Xxx Xxxxx Xxxxx
17.02 Industrial Warehouse 000-000 Xxxxxxxxxxx Xxxx
17.03 Industrial Warehouse 00000 Xxxxxxxxx Xxxx
17.04 Industrial Warehouse 1200 - 0000 Xxxxxx Xxxx
17.05 Industrial Warehouse 401 - 000 Xxxx Xxxxxxxxxxxx Xxxxxx
17.06 Industrial Warehouse 0000 Xxxxxx Xxxxxxxxx
17.07 Industrial Warehouse 0000-0000 Xxxxxxxxxx Xxxxx
17.08 Industrial Warehouse 0000 Xxxx Xxx Xxxxxxx Xxxx Xxxxx
17.09 Industrial Warehouse 0000 Xxxxxx X
17.10 Industrial Warehouse 1501 - 0000 Xxxxxxxxxx Xxxxx
17.11 Industrial Warehouse 0000 Xxxxxxxxxx Xxx
17.12 Industrial Warehouse 0000 Xxxxxx X
17.13 Industrial Warehouse 0000 Xxxxxxxxx Xxxxx
17.14 Industrial Warehouse 0000 Xxxxxxx Xxxxx
18 Office General Urban 0000 XxXxxxxx Xxxxxx
19 Retail Unanchored 11101-11263 000xx Xxxxxx
20 Retail Power Center/Big Xxx 0000 Xxxxxxxx Xxxx
00
21.01 Industrial Industrial/Warehouse, w/Office Tenant 0000 Xxxxxxx Xxxxx North
21.02 Industrial Industrial/Warehouse, w/Office Tenant 000 Xxxxxxx Xxxxx
21.03 Industrial Industrial/Warehouse, w/Office Tenant 000 Xxxxxxxxx Xxxx
21.04 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxxxxx Xxxxxxxxx
21.05 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxx Xxxxxx
21.06 Industrial Industrial/Warehouse, w/Office Tenant 000 Xxxxxx Xxxxx
21.07 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxxxxx Xxxxx
21.08 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxx Xxxxxx
21.09 Industrial Industrial/Warehouse, w/Office Tenant 000 Xxxxxx Xxxxx
21.10 Industrial Industrial/Warehouse, w/Office Tenant 0000 Xxxxxxxx Xxxxxx
21.11 Industrial Industrial/Warehouse, w/Office Tenant 595 Old Willets Path
21.12 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxx Xxxxxx
21.13 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxxxxxxx Xxxx
21.14 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxx Xxxxxx
21.15 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxx Xxxxxx
21.16 Industrial Industrial/Warehouse, w/Office Tenant 631-641 Old Willets Path
21.17 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxxxxxxx Xxxx
21.18 Industrial Industrial/Warehouse, w/Office Tenant 000 Xxxxxxxxxxx Xxxx
21.19 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxx Xxxxxx
00 Office General Suburban 000 Xxxx Xxxxx Xxxx
00 Retail Anchored 0000-0000 Xxxxx Xxxx Xxxx
24 Retail Anchored 0000 Xxxxxxx Xxxx
25 Retail Anchored 0000-00 Xxx Xxxxx Xxxx Xxxx
26 Retail Anchored Xxxxxx XxXxxx Boulevard & Riverbend Drive
27
27.01 Industrial Industrial/Warehouse, w/Office Tenant 000 Xxxx Xxxxxx
27.02 Industrial Industrial/Warehouse, w/Office Tenant 0000 Xxxxxxx Xxxxx North
27.03 Industrial Industrial/Warehouse, w/Office Tenant 000 Xxxx Xxxxxx
27.04 Industrial Industrial/Warehouse, w/Office Tenant 933 Vanderbilt Motor Parkway
27.05 Industrial Industrial/Warehouse, w/Office Tenant 000 Xxxxxxxxx Xxxx
27.06 Industrial Industrial/Warehouse, w/Office Tenant 000 Xxxxxx Xxxxx
27.07 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxxxxx Xxxxx
27.08 Industrial Industrial/Warehouse, w/Office Tenant 651-661 Old Willets Path
27.09 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxxxxx Xxxxx
27.10 Industrial Industrial/Warehouse, w/Office Tenant 000 Xxxx Xxxxxx
27.11 Industrial Industrial/Warehouse, w/Office Tenant 000 Xxxx Xxxxxx
27.12 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxx Xxxxxx
27.13 Industrial Industrial/Warehouse, w/Office Tenant 681 Old Willets Path
27.14 Industrial Industrial/Warehouse, w/Office Tenant 00 Xxxx Xxxxxx
27.15 Industrial Industrial/Warehouse, w/Office Tenant 000 Xxxxxxxxxxx Xxxx
28 Office General Xxxxxxxx 000, 000, 000 Xxxx Xxxxxxxxxx
29 Retail Anchored 0000-0000 Xxxx Xxxxxxx Xxxxxx
30
30.01 Self-Storage General, units only 0000 Xxxxxxxxxxx Xxxxxx
30.02 Self-Storage General, units only 0000 Xxxxxxx Xxxxxx
31 Retail Anchored Xxxxx Xxxxxx & Xxxxxxx Xxxxxx
00 Office Medical 0000 Xxxxxxxxxx Xxxxxx
33 Retail Power Center/Big Xxx Xxx Xxx Xxxxxxx Xxx & XXX 00
00 Retail Other Retail 000-000 Xxxxxxxxxxx Xxxxxxxxx
35 Office General Suburban 000 Xxxxxxxxx Xxxx
36 Multifamily Conventional 0000 Xxxxxx Xxxxxx
37 Retail Power Center/Big Xxx 0000-0000 Xxxx Xxxxx Xxxxxx
00 Xxxxxx General Suburban 000-000 Xxxxx Xxx Xxxxxxxx Xxxxxx
00 Retail Anchored 0000 Xxxxx Xxxxxxxx Xxxxxxx
40 Retail Anchored 0000-0000 Xxxxxxxx Xxxxxx
41 Hospitality Full Service 0000 Xxxxx Xxxxx Xxxxx
00 Retail Single Tenant 0000 Xxxxxxxx Xxxx
43 Multifamily Garden 0000 Xxxxxxxxx Xxxxxxxxx
44 Office General Urban 000 Xxxxxxxx Xxxxxx
45 Retail Anchored 0000-0000 Xxxxx Xxxxxxxx Xxxxxxxxx
46 Office General Urban 0000 X Xxxxxx, XX
47 Office General Urban 1200 & 0000 Xxxxxx Xxxxxx
48 Retail Unanchored 000 Xxxx Xxxxxx Xxxx
00 Hospitality Full Service 000 Xxxxx Xxxxxx Xxxxxx
50 Mobile Home Park Mobile Home Park 000 Xxxxx Xxxxxx Xxxxx Xxxx
51 Retail Shadow Anchored 14405-14715 Xxxx 00xx Xxx & 0000-0000 Xxxxxxx Xxxxxx
52 Industrial Warehouse 0,0,0 Xxxxxxx Xxxxxxx
53 Retail Anchored 0000 Xxxxxxx Xxxx
54 Retail Anchored 000 Xxxxxxxx Xxxxx
55 Retail Anchored 43301 Joy Road
56 Retail Single Tenant 000 Xxxxxxxxxx Xxxxxx (Xxxxx 6)
57 Retail Anchored 0000-0000 Xxxxxxx Xxxxxx and 0000-0000
Xxxxxxxxx Xxxxxxxxx
58 Retail Power Center/Big Box 2701, 2705 & 0000 Xxxxx Xxxxxxxx Xxxxx
59 Office General Suburban 3001-3061 Xxxxxx Xxxx
00 Multifamily Garden 2501 Mountain Lodge Circle
61 Mobile Home Park Mobile Home Park 0000 Xxxx Xxxxxxxx Xxxx
62 Other Ground Lease/Land 000 Xxxx 00xx Xxxxxx
63 Retail Unanchored 0000 Xxx Xxxxx Xxxx
64 Office General Suburban 0000 Xxxxxxx Xxxx
00 Hospitality Full Service 000 Xxxxx Xxxxxxx Xxxxxxxxx
66 Office Medical 0000 Xxxxxxx Xxxx Xxxxx
00 Retail Shadow Anchored 0000-0000 Xxxx Xxxxxxx Xxxxxx
68 Retail Anchored 4611-4687 Xxxxxxxxx Xxxx
00 Retail Single Tenant 0000 Xxxxxx Xxxx/Xxxxxxx Xxxxxx Xxxx
70 Multifamily Garden 00000 Xxxx Xxxxxxxxx Xxxx
71 Multifamily Garden 0000 Xxxxx Xxxxx
72 Retail Anchored 0000 X.X. Xxxxxxx 200
73 Office General Suburban 00000 Xxxxxxxxx Xxxxxxxx Xxxxxxx
74 Retail Anchored 12127 & 00000 Xxxx Xxxxxxxxx &
X00000 Xxxx Xxxxxx Xxxx
75 Retail Unanchored 20630-20660 Xxxxxxx Xxxx
00 Office Other Office 26-30 West Xxxxxxx
77 Retail Other Retail 22 West Xxxxxxx
78 Hospitality Full Service 000 Xxxxxxxx Xxxxxx
79 Mobile Home Park Mobile Home Park 0000 Xxxxxxx Xxxxxx Xxxxxxxxx
80 Office General Suburban 000 Xxxxxxxxxxxx Xxxxx
81 Industrial Industrial 3 & 4 Duke, 205 & 205A Xxxxxx, 366 & 372 Xxx
and 219-227 Xxxxxx
82 Retail Anchored 0000 Xxxxx Xxxxxx XX
83 Office General Suburban 0000 Xxxxxxxx Xxxxxx
84 Office General Suburban 0000 Xxxxxxxxx Xxxxxxxxx
85 Multifamily Garden 250 & 000 Xxxxx Xxxxxxx Xxxxxxxxx
86 Office General Suburban 10640-10660 Scripps Ranch Boulevard
87 Retail Anchored 0000 Xxxx Xxxxxx Xxxxx
88 Office General Suburban 000 Xxxxxx Xxxx
00 Retail Shadow Anchored 0000-0000 Xxxxx Xxxxxx Shopping Center
90 Retail Shadow Anchored 661 Xxxxx Xxxxx Boulevard
91 Mobile Home Park RVs 000 Xxxxx Xxxx
92 Retail Unanchored 0 - 00 Xxxx Xxxxx Xxxxxx
93 Retail Anchored 1101-1161 Hidden Valley Parkway
94 Office Other Xxxxxx 000 Xxxxxxxx Xxxxx
95 Industrial Warehouse 0000-0000 Xxxxxxxxxxx Xxxxx
96 Multifamily Garden 0000 X. Xxxx Xxxx Xxxxxxxxx
97 Self-Storage General, units only 00000 Xxxxxxx 00
98 Retail Anchored 000-000 Xxxxx Xxxxx Xxxx 0
99 Retail Shadow Anchored 0000 Xxxxx Xxxxxx
100 Office General Suburban 770-780 Smithridge Drive
101
101.01 Industrial Industrial/Warehouse, w/Office Tenant 0000 Xxxxxx Xxxx Xxxxxxxxx
101.02 Industrial Industrial/Warehouse, w/Office Tenant 0000 Xxxxxx Xxxx Xxxxxxxxx
101.03 Industrial Industrial/Warehouse, w/Office Tenant 3670 & 0000 Xxxxx Xxxxx
000 Xxxxxx General Urban 000 Xxxxxxxxx Xxxxxx
103 Mobile Home Park RVs 0000 Xxxxxx Xxxx
104 Retail Shadow Anchored 0000-0000 Xxxxx Xxxxx Xxxxxxxxx
105 Office Medical 0000 Xxxxxx Xxxx Xxxx
106 Multifamily Conventional 0000 Xxxxx Xxxxx
107
107.01 Office General Suburban One Xxxxxx Drive
107.02 Office General Suburban 000 Xxxx Xxxx Xxxxxx
108 Retail Anchored 000 Xxxxxxxxx Xxxxxx
109 Retail Anchored US Route 50
110 Retail Shadow Anchored 000-000 Xxxxx Xxxx Xxxxx
111 Industrial Industrial/Warehouse, w/Office Tenant 0000 Xxxxx Xxxxxxx Xxxxxxxxx
112 Retail Anchored 0000 Xxxxxxxxxxx Xxxxx
113 Other Ground Lease/Land 000 Xxxxxxxxx Xxxxxx
114 Retail Shadow Anchored 201-298 Summit Place
115 Office General Suburban 1200 and 0000 Xxxxxxx Xxxx
116 Retail Shadow Anchored 0000 Xxxx Xxxxxx
117 Retail Shadow Anchored 0000 Xxxxxx Xxxx
000 Retail Single Tenant 000-000 Xxxxx Xxxx Xxxxxx
119 Industrial Industrial 0000 Xxxx Xxxxxxx Xxxx and 0000 Xxxxxxxx Xxxxx
120 Multifamily Conventional 0000-0000 Xxxxxxx Xxxxx
121 Office General Suburban 00000 Xxxxxxxxx Xxxxxxx
122 Mobile Home Park Mobile Home Park 000 Xxx Xxxx Xxxx
123 Retail Unanchored 00000 Xxxxxxx Xxxx
124 Multifamily Garden 0000 Xxxx Xxxx Xxxx Xxxxxxxxx
125 Retail Unanchored 000 Xxxxx Xxxx Xxxxxx
Companion Notes
2-C-A
2-C-B1
2-C-B2
3-C
15-C
41-C
44-C
50-C
60-C
64-C
108-C
(TABLE CONTINUED)
GCCFC Cut-off Monthly
04-GG1 Original Date Debt
LOAN ID City County State Zip Code Balance Balance Service
------------------------------------------------------------------------------------------------------------------------------------
1 New York Xxx Xxxx XX 00000 150,000,000 150,000,000.00 746405.00
0 Xxx Xxxx Xxx Xxxx XX 00000 149,500,000 149,500,000.00 2,543,235.51
0 Xxx Xxxx Xxx Xxxx XX 00000 120,000,000 120,000,000.00 814,545.85
4 Xxxxxxxxxx Xxxxxxxxx XX 00000 108,550,000 108,550,000.00 680,053.14
5 Xxxxxxx Xxxxxxx XX 00000 90,000,000 89,861,307.07 410192.93
6 McLean Xxxxxxx XX 00000 89,000,000 89,000,000.00 515,372.59
0 Xxx Xxxxxxx Xxx Xxxxxxx XX 00000 86,437,500 86,437,500.00 1,293,590.96
0 Xxxxxx Xxxxxx XX 00000 85,000,000 84,821,374.58 423708.75
9 Xxxxxxxx Xxx Xxxxxxx XX 00000 80,000,000 80,000,000.00 387,102.78
00 Xxx Xxxxxxx Xxx Xxxxxxx XX 00000 77,000,000 77,000,000.00 441,603.92
00 Xxx Xxxx Xxx Xxxx XX 00000 67,333,333 67,333,333.00 1,745,868.19
12 Xxxxxxx Xxxx XX 00000 67,000,000 66,776,012.19 377,481.28
00 Xxx Xxxxxxxx Xxxxxxxxxxx XX 00000 66,000,000 65,928,839.79 378060.21
14 Xxxxxxx Xxxx XX 00000 56,500,000 55,969,604.75 1005780.54
00 Xxxxxxxx Xxxxxxxx XX 00000 49,000,000 48,977,342.85 280,016.93
16 50,000,000 48,819,646.98 826104.63
16.01 Birmingham Xxxxxx XX 00000
16.02 Xxxxxxxx Xxx XX 00000
16.03 Wilmington Xxx Xxxxxxx XX 00000
16.04 Solon Xxxxxxxx XX 00000
16.05 Tupelo Xxx XX 00000
16.06 Xxxxx Xxxxxxxxxx Xxxxxxxxxx XX 00000
16.07 Xxxxxx Xxxx XX 00000
16.08 Xx. Xxxxxxxx Xxxxxxxx XX 00000
16.09 Durham Xxxxxx XX 00000
16.10 Jacksonville Xxxxx XX 00000
17 48,052,000 48,006,546.88 296,364.65
17.01 Arlington Xxxxxxx XX 00000
17.02 Dallas Xxxxxx XX 00000
17.03 Farmers Branch Xxxxxx XX 00000
17.04 Xxxxxxx Xxxxxx XX 00000
17.05 Xxxxxxx Xxxxxx XX 00000
17.06 Dallas Xxxxxx XX 00000
17.07 Xxxxxxx Xxxxxx XX 00000
17.08 Xxxxxxx Xxxxxx XX 00000
17.09 Xxxxx Xxxxxxx Xxxxxxx XX 00000
17.10 Xxxxxxx Xxxxxx XX 00000
17.11 Dallas Xxxxxx XX 00000
17.12 Xxxxx Xxxxxxx Xxxxxxx XX 00000
17.13 Xxxxxx Xxxxxx XX 00000
17.14 Carrollton Xxxxxx XX 00000
00 Xxxxxxx Xxxxxx XX 00000 45,000,000 45,000,000.00 380284.38
19 Cerritos Xxx Xxxxxxx XX 00000 45,000,000 44,949,811.14 252,688.86
00 Xxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 43,000,000 43,000,000.00 234,685.32
21 39,600,000 39,409,857.41 234628.72
21.01 Bohemia Xxxxxxx XX 00000
21.02 Bohemia Xxxxxxx XX 00000
21.03 Hauppauge Xxxxxxx XX 00000
21.04 Farmingdale Xxxxxxx XX 00000
21.05 Hauppauge Xxxxxxx XX 00000
21.06 Bohemia Xxxxxxx XX 00000
21.07 Bohemia Xxxxxxx XX 00000
21.08 Hauppauge Xxxxxxx XX 00000
21.09 Bohemia Xxxxxxx XX 00000
21.10 Bohemia Xxxxxxx XX 00000
21.11 Hauppauge Xxxxxxx XX 00000
21.12 Hauppauge Xxxxxxx XX 00000
21.13 Hauppauge Xxxxxxx XX 00000
21.14 Hauppauge Xxxxxxx XX 00000
21.15 Hauppauge Xxxxxxx XX 00000
21.16 Hauppauge Xxxxxxx XX 00000
21.17 Hauppauge Xxxxxxx XX 00000
21.18 Islandia Xxxxxxx XX 00000
21.19 Hauppauge Xxxxxxx XX 00000
00 Xxxxxxxx Xxxxxxxxx XX 00000 36,000,000 35,783,185.57 223226.57
00 Xxxxxxx Xxxxxxxx XX 00000 34,000,000 34,000,000.00 184602.93
00 Xxxxxxxxxx Xxxxxxxx XX 00000 28,500,000 28,310,460.74 169774.06
00 Xxxxx Xxxxxxx XX 00000 28,000,000 28,000,000.00 157,753.37
26 Rome Xxxxx XX 00000 26,300,000 26,300,000.00 139421.32
27 25,800,000 25,673,180.90 151053.85
27.01 Hauppauge Xxxxxxx XX 00000
27.02 Bohemia Xxxxxxx XX 00000
27.03 Hauppauge Xxxxxxx XX 00000
27.04 Hauppauge Xxxxxxx XX 00000
27.05 Hauppauge Xxxxxxx XX 00000
27.06 Bohemia Xxxxxxx XX 00000
27.07 Bohemia Xxxxxxx XX 00000
27.08 Hauppauge Xxxxxxx XX 00000
27.09 Bohemia Xxxxxxx XX 00000
27.10 Hauppauge Xxxxxxx XX 00000
27.11 Hauppauge Xxxxxxx XX 00000
27.12 Hauppauge Xxxxxxx XX 00000
27.13 Hauppauge Xxxxxxx XX 00000
27.14 Hauppauge Xxxxxxx XX 00000
27.15 Islandia Xxxxxxx XX 00000
00 Xxx Xxxxx Xxxxxxxxx XX 00000 24,250,000 24,201,362.67 138908.49
00 Xxx Xxxxxxx Xxx Xxxxxxx XX 00000 24,000,000 23,974,074.72 137,325.28
30 23,500,000 23,459,850.94 145,458.61
30.01 Xxx Xxxxx Xxx Xxxxx XX 00000
30.02 Xxxxxx Xxxxx Xxxxxx Xxxxx XX 00000
31 Xxxxxxx Xxxx XX 00000 22,250,000 22,250,000.00 132,940.62
00 Xxx Xxxxxxxxx Xxx Xxxxxxxxx XX 00000 21,800,000 21,800,000.00 139,075.08
00 Xxxxxxxx Xxxxxxx XX 00000 21,600,000 21,527,193.73 121,101.95
00 Xxxxxxxxxxx Xxxxxxxx XX 00000 21,000,000 20,957,422.85 119,631.26
00 Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000 20,000,000 19,961,347.22 116,714.57
00 Xxxxxxxxx Xxxxxxx XX 00000 19,350,000 19,205,804.87 117135.03
37 Merced Xxxxxx XX 00000 16,900,000 16,881,091.14 94,719.44
00 Xxxxxxxxxx Xxxxxxx XX 00000 15,300,000 15,300,000.00 90065.71
39 Xxxxxxxxxxx Xxxxxxxx XX 00000 15,200,000 15,200,000.00 86113.29
00 Xxxxxx Xxxxxx XX 00000 15,000,000 15,000,000.00 90,415.33
00 Xxx Xxxx Xxxxxx Xxx Xxxx Xxxxxx XX 00000 15,000,000 14,838,278.07 119,976.47
00 Xxxxx Xxxxxxxxxxxx XX 00000 14,700,000 14,543,622.20 97699.60
43 Jacksonville Xxxxx XX 00000 14,400,000 14,400,000.00 86705.94
44 Raleigh Xxxx XX 00000 12,982,900 12,903,265.20 80445.27
00 Xxxxxxxx Xxxxx Xxxxx XX 00000 12,500,000 12,448,503.91 72,233.51
46 Xxxxxxxxxx Xxxxxxxxxx XX XX 00000 12,371,875 12,371,875.00 741,565.17
00 Xxxx Xxxxx Xxxxxxx XX 00000 12,125,000 12,125,000.00 70373.55
00 Xxxxx Xxxxxx XX 00000 11,850,000 11,824,545.43 65,509.55
00 Xxxxxx Xxxxxxx XX 00000 11,750,000 11,750,000.00 79,925.21
00 Xxxxxx Xxxxxxxx Xxxxxxxx XX 00000 11,750,000 11,750,000.00 72148.25
00 Xxxxxx Xxxxxxxxx XX 00000 11,600,000 11,600,000.00 68137.24
52 Xxxxxxxx Xxxxxxxx XX 00000 11,500,000 11,500,000.00 66,164.19
53 Xxxxxxx Xxxxxx XX 00000 11,480,000 11,416,624.29 70013.73
00 Xxxxxxxxxxxx Xxxxxx XX 00000 11,500,000 11,366,788.43 77684.94
00 Xxxxxx Xxxxx XX 00000 11,200,000 11,165,400.69 66,073.38
00 Xxxxxxx Xxxxxxxx XX 00000 11,100,000 11,100,000.00 74,449.37
00 Xxxxxxxx Xxxxxxxx XX 00000 11,100,000 11,100,000.00 67,050.48
00 Xxxxxxxx Xxxxxx XX 00000 10,725,000 10,703,137.59 60,929.02
00 Xxx Xxxxx Xxxxxxxxx XX 00000 10,400,000 10,400,000.00 62,628.92
00 Xxxxxxxx Xxxxx Xxxxxxxxx XX 00000 10,240,000 10,176,454.84 58785.69
00 Xxxxxx Xxxxxx XX 00000 10,200,000 10,108,952.48 59524.44
00 Xxx Xxxx Xxx Xxxx XX 00000 10,000,000 10,000,000.00 45833.33
63 Raleigh Xxxx XX 00000 9,200,000 9,200,000.00 38,865.74
64 Raleigh Xxxx XX 00000 9,130,000 9,130,000.00 53570.55
00 Xxxxx Xxx Xxxxxxxxx Xxx Xxxxx XX 00000 9,000,000 8,981,648.42 67,101.58
00 Xxxxxxxx Xxxxxxxx XX 00000 8,700,000 8,686,551.80 53685.70
00 Xxxxxx Xxxxxxxxxx XX 00000 8,000,000 7,983,515.91 45,197.51
00 Xxxxxx Xxxx Xxxxxxx XX 00000 7,250,000 7,241,914.02 40710.98
00 Xxx Xxxxx Xxx Xxxxx XX 00000 7,100,000 7,100,000.00 45,745.40
00 Xxx Xxxxx Xxxxx XX 00000 6,880,000 6,857,213.39 38977.59
00 Xxxxxxxxx Xxxxxxx XX 00000 6,800,000 6,800,000.00 37,046.04
72 Ocala Xxxxxx XX 00000 6,775,000 6,719,045.43 41,099.92
00 Xxxxx Xxxxxxxxxxxx XX 00000 6,700,000 6,700,000.00 41947.95
00 Xxxxxxxxxxx Xxx Xxxxxxxxxx XX 00000 6,700,000 6,692,485.31 37,497.19
75 Xxxxxxx Xxxxxxx XX 00000 6,500,000 6,500,000.00 37,726.03
76 Xxxxxxx Xxxx XX 00000 4,450,000 4,450,000.00 25,968.99
77 Xxxxxxx Xxxx XX 00000 1,800,000 1,800,000.00 10,504.31
00 Xxxxxx Xxxx Xx Xxxx Xxxxxx XX 00000 6,300,000 6,238,892.52 47,678.46
00 Xxxxxxx Xxxxx Xxxxxx XX 00000 6,200,000 6,186,833.83 34,482.81
00 Xxxxxxxxxxxxx Xxxxxxxx XX 00000 6,000,000 5,976,362.46 35511.44
00 Xxxxxxx Xxxxxxxxx XX 00000 6,000,000 5,973,688.72 38,474.91
82 Xxxxxxx Xxxxxx XX 00000 5,850,000 5,850,000.00 34848.36
83 Xxxxxxxxx Xxxxxx XX 00000 5,825,000 5,825,000.00 33366.68
00 Xxxxx Xxxxx Xxxx Xxxxx Xxxxx Xxxxxx XX 00000 5,740,000 5,740,000.00 32879.78
00 Xxxx Xxxxxx Xxxxxxxx XX 00000 5,350,000 5,350,000.00 29377.43
00 Xxx Xxxxx Xxx Xxxxx XX 00000 5,300,000 5,288,347.76 28939.39
00 Xxx Xxxxx Xxxxxxxxxxx XX 00000 5,200,000 5,143,253.18 42185.42
88 Xxxxxxxx Xxxx XX 00000 5,100,000 5,065,271.23 30021.90
00 Xxxxx Xxxxxx XX 00000 5,000,000 4,988,522.30 34394.37
00 Xxxxx Xxxx Xxxxxxxxxx XX 00000 4,875,000 4,875,000.00 27894.20
00 Xxx Xxxxxxx Xxxxxxxxx XX 00000 4,800,000 4,800,000.00 26,863.66
92 Xxxxxxxx Xxxx XX 00000 4,650,000 4,650,000.00 25,763.94
93 Norco Xxxxxxxxx XX 00000 4,655,000 4,649,847.06 26,255.61
00 Xxxxxxx Xxxxxxx Xxxx XX 00000 4,560,000 4,541,100.13 26264.33
95 Ceres Xxxxxxxxxx XX 00000 4,500,000 4,481,833.10 26,289.37
00 Xxx Xxxxx Xxxxx XX 00000 4,450,000 4,431,961.87 25940.73
00 Xxx Xxxxxx Xxx Xxxxxxxxxx XX 00000 4,225,000 4,211,346.20 24,284.15
00 Xxxxxxxxx Xxxxxxx XX 00000 4,200,000 4,200,000.00 28,944.07
00 Xxxxxx Xxxx Xxxxxxx XX 00000 4,200,000 4,191,703.43 24243.90
000 Xxxx Xxxxxx XX 00000 4,175,000 4,150,066.01 26,196.94
101 3,950,000 3,950,000.00 18789.47
101.01 Xxx Xxxxx Xxxxx XX 00000
101.02 Las Vegas Xxxxx XX 00000
101.03 Las Vegas Xxxxx XX 00000
000 Xxx Xxxx Xxx Xxxx XX 00000 3,850,000 3,850,000.00 22835.76
000 Xxxxxxxxxxx Xxxxxxxx XX 00000 3,840,000 3,835,693.07 21,490.93
000 Xxxxxxxx Xxxxxxx Xx Xxxx XX 00000 3,750,000 3,750,000.00 22314.66
000 Xxxxxx Xxxxxxxx XX 00000 3,750,000 3,714,563.68 21245.06
000 Xxxxxxxxxxxx Xxxxxxxxxx XX 00000 3,575,000 3,550,707.79 21067.58
107 3,500,000 3,500,000.00 19544.48
107.01 Xxxxxxxxxxxxxxx Xxxxxxxxxx XX 00000
107.02 Xxxxxxxxxxxxxxx Xxxxxxxxx XX 00000
000 Xxxxxxxxxxx Xxxxxxxxxx XX 00000 3,500,000 3,474,493.95 21686.79
000 Xxxxxx Xxxxxxxxx XX 00000 3,440,000 3,428,943.50 19835.17
000 Xxxxxxx Xxxxxxxxx XX 00000 3,200,000 3,200,000.00 18613.39
000 Xxx Xxxxx Xxxxx XX 00000 3,250,000 3,146,302.13 26779.94
000 Xxxx Xxxxx Xxxxxxx XX 00000 3,100,000 3,082,814.51 20,189.93
000 Xxx Xxxx Xxx Xxxx XX 00000 3,000,000 3,000,000.00 10,325.00
000 Xxxxxxxxxxxx Xxxxxx XX 00000 3,000,000 3,000,000.00 15182.99
000 Xx Xxxxxx Xxxxx Xx Xxxxxx XX 00000 2,950,000 2,950,000.00 17,781.68
000 Xxxxx Xxxxxxx Xxxxx XX 00000 2,900,000 2,866,253.14 14607.84
000 Xxxxxxxxx Xxxxxx XX 00000 2,700,000 2,687,904.27 16591.33
000 Xxxxxxxxx Xxxxxxxxxx XX 00000 2,650,000 2,639,685.79 19,804.52
000 Xxx Xxxxx Xxxxx XX 00000 2,400,000 2,395,611.63 14,389.21
000 Xxxxxxxxx Xxxx XX 00000 2,400,000 2,392,329.56 13884.02
000 Xxxxx Xxxx Xxxx Xxxx XX 00000 2,000,000 2,000,000.00 11620.69
000 Xxxxx Xxxxxxx Xxxxx Xxxxxxx XX 00000 2,000,000 1,992,548.66 15868.01
000 Xxx Xxxx Xxxxxxxxx XX 00000 2,000,000 1,989,283.95 12379.46
000 Xxx Xxxxx Xxxxx XX 00000 1,800,000 1,792,387.94 10254.11
000 Xxxxxxx Xxxx Xxxx XX 00000 1,600,000 1,595,567.36 10,029.06
Companion Note
2-C-A 300,500,000 300,500,000.00 1,422,356.09
2-C-B1 s 25,000,000 25,000,000.00 143,017.64
2-C-B2 25,000,000 25,000,000.00 143,017.64
3-C 5,000,000 5,000,000.00 45,699.17
15-C 3,000,000 2,960,000.00 27,961.34
41-C 1,250,000 1,236,523.17 9,998.04
44-C 806,000 805,153.86 10191.42
50-C 750,000 750,000.00 8437.50
60-C 385,000 384,813.52 4409.84
64-C 570,000 570,000.00 6194.15
108-C 225,000 224,746.57 2600.58
(TABLE CONTINUED)
Stated Original Remaining Interest
Remaining Interest Interest Accrual
GCCFC Gross Original Term to Only Original Only Remaining Method
04-GG1 Interest Term to Maturity Term Amortization Period Amortization (Actual/360
LOAN ID Rate Seasoning Maturity (mos.) (mos.) (mos.) Term (mos.) (mos.) (mos.) or 30/360
------------------------------------------------------------------------------------------------------------------------------------
1 4.5300% 1 83 82 35 360 34 360 Actual/360
2 5.4967% 1 120 119 24 360 23 360 Actual/360
3 7.2000% 5 120 115 30 360 25 360 Actual/360
4 6.4150% 1 120 119 60 360 59 360 Actual/360
5 3.6200% 1 59 58 0 360 0 359 Actual/360
6 5.6790% 0 120 120 0 360 0 360 Actual/360
7 4.6800% 10 84 74 36 360 26 360 Actual/360
8 3.4600% 1 59 58 0 300 0 299 Actual/360
9 5.7270% 6 120 114 120 NA 114 NA Actual/360
10 5.5910% 0 84 84 17 360 17 360 Actual/360
11 5.7860% 6 84 78 36 360 30 360 Actual/360
12 5.4300% 3 84 81 0 360 0 357 Actual/360
13 5.5800% 1 120 119 0 360 0 359 Actual/360
14 4.9700% 8 84 76 0 360 0 352 Actual/360
15 6.7200% 4 60 56 0 700 0 696 30/360
16 4.4100% 13 59 46 0 300 0 287 Actual/360
16.01
16.02
16.03
16.04
16.05
16.06
16.07
16.08
16.09
16.10
17 6.2660% 1 84 83 0 360 0 359 Actual/360
17.01
17.02
17.03
17.04
17.05
17.06
17.07
17.08
17.09
17.10
17.11
17.12
17.13
17.14
18 5.0010% 7 60 53 60 NA 53 NA Actual/360
19 5.4000% 1 120 119 0 360 0 359 Actual/360
20 5.1460% 1 120 119 60 360 59 360 Actual/360
21 5.8900% 5 120 115 0 360 0 355 Actual/360
21.01
21.02
21.03
21.04
21.05
21.06
21.07
21.08
21.09
21.10
21.11
21.12
21.13
21.14
21.15
21.16
21.17
21.18
21.19
22 5.6000% 4 120 116 0 300 0 296 Actual/360
23 5.1000% 10 120 110 12 360 2 360 Actual/360
24 5.9400% 7 120 113 0 360 0 353 Actual/360
25 5.4300% 0 120 120 0 360 0 360 Actual/360
26 4.8900% 5 120 115 12 360 7 360 Actual/360
27 5.7800% 5 102 97 0 360 0 355 Actual/360
27.01
27.02
27.03
27.04
27.05
27.06
27.07
27.08
27.09
27.10
27.11
27.12
27.13
27.14
27.15
28 5.5800% 2 120 118 0 360 0 358 Actual/360
29 5.5700% 1 120 119 0 360 0 359 Actual/360
30 6.3000% 2 120 118 0 360 0 358 Actual/360
30.01
30.02
31 5.8500% 4 120 116 12 348 8 348 Actual/360
32 5.8960% 0 84 84 0 300 0 300 Actual/360
33 5.3860% 3 84 81 0 360 0 357 Actual/360
34 5.5300% 2 120 118 0 360 0 358 Actual/360
35 5.7500% 2 120 118 0 360 0 358 Actual/360
36 6.0900% 8 120 112 0 360 0 352 Actual/360
37 5.3830% 1 84 83 0 360 0 359 Actual/360
38 5.8300% 2 120 118 12 360 10 360 Actual/360
39 5.4800% 3 120 117 6 360 3 360 Actual/360
40 6.0500% 0 120 120 0 360 0 360 Actual/360
41 8.4200% 12 120 108 0 300 0 288 Actual/360
42 6.3300% 8 120 112 0 300 0 292 Actual/360
43 6.0400% 8 120 112 60 360 52 360 Actual/360
44 6.3100% 7 120 113 0 360 0 353 Actual/360
45 5.6600% 4 120 116 0 360 0 356 Actual/360
46 5.5780% 8 84 76 24 360 16 360 Actual/360
47 5.7000% 6 120 114 12 360 6 360 Actual/360
48 5.2600% 2 60 58 0 360 0 358 Actual/360
49 6.5800% 0 60 60 0 300 0 300 Actual/360
50 6.1100% 7 120 113 23 348 16 348 Actual/360
51 5.8100% 2 120 118 23 360 21 360 Actual/360
52 5.6200% 0 120 120 0 360 0 360 Actual/360
53 6.1600% 6 120 114 0 360 0 354 Actual/360
54 5.2800% 5 120 115 0 240 0 235 Actual/360
55 5.8500% 3 120 117 0 360 0 357 Actual/360
56 6.4280% 0 120 120 0 300 0 300 Actual/360
57 6.0700% 0 120 120 0 360 0 360 Actual/360
58 5.5050% 2 120 118 0 360 0 358 Actual/360
59 5.3000% 0 120 120 0 300 0 300 Actual/360
60 5.6000% 6 120 114 0 360 0 354 Actual/360
61 5.7500% 9 120 111 0 360 0 351 Actual/360
62 5.5000% 7 120 113 120 NA 113 NA 30/360
63 5.0000% 1 60 59 60 NA 59 NA Actual/360
64 5.8000% 0 120 120 12 360 12 360 Actual/360
65 6.5000% 1 120 119 0 240 0 239 Actual/360
66 5.5500% 1 120 119 0 300 0 299 Actual/360
67 5.4550% 2 120 118 0 360 0 358 Actual/360
68 5.4000% 1 120 119 0 360 0 359 Actual/360
69 6.0000% 0 120 120 0 300 0 300 Actual/360
70 5.4800% 3 120 117 0 360 0 357 Actual/360
71 5.1300% 0 120 120 24 360 24 360 Actual/360
72 6.1100% 9 120 111 0 360 0 351 Actual/360
73 5.7000% 5 108 103 6 300 1 300 Actual/360
74 5.3700% 1 120 119 0 360 0 359 Actual/360
75 5.7000% 0 120 120 0 360 0 360 Actual/360
76 5.7500% 0 120 120 0 360 0 360 Actual/360
77 5.7500% 0 120 120 0 360 0 360 Actual/360
78 6.6900% 5 120 115 0 240 0 235 Actual/360
79 5.3140% 2 84 82 0 360 0 358 Actual/360
80 5.8800% 4 120 116 0 360 0 356 Actual/360
81 5.9500% 3 120 117 0 300 0 297 Actual/360
82 5.9400% 6 120 114 12 360 6 360 Actual/360
83 5.5800% 9 120 111 12 360 3 360 Actual/360
84 5.5800% 2 120 118 12 360 10 360 Actual/360
85 5.2000% 3 120 117 48 360 45 360 Actual/360
86 5.1500% 2 120 118 0 360 0 358 Actual/360
87 5.3900% 3 180 177 0 180 0 177 Actual/360
88 5.8300% 7 120 113 0 360 0 353 Actual/360
89 5.5000% 1 120 119 0 240 0 239 Actual/360
90 5.5700% 1 96 95 60 360 59 360 Actual/360
91 5.3700% 0 120 120 0 360 0 360 Actual/360
92 5.2800% 0 120 120 0 360 0 360 Actual/360
93 5.4400% 1 120 119 0 360 0 359 Actual/360
94 5.6300% 4 120 116 0 360 0 356 Actual/360
95 5.7600% 4 120 116 0 360 0 356 Actual/360
96 5.7400% 4 108 104 0 360 0 356 Actual/360
97 5.6110% 3 120 117 0 360 0 357 Actual/360
98 6.7220% 0 120 120 0 300 0 300 Actual/360
99 5.6500% 2 120 118 0 360 0 358 Actual/360
100 6.4300% 7 120 113 0 360 0 353 Actual/360
101 5.6300% 7 120 113 120 NA 113 NA Actual/360
101.01
101.02
101.03
102 5.9000% 8 120 112 12 360 4 360 Actual/360
103 5.3700% 1 120 119 0 360 0 359 Actual/360
104 5.9300% 7 120 113 24 360 17 360 Actual/360
105 5.4800% 9 120 111 0 360 0 351 Actual/360
106 5.8400% 7 120 113 0 360 0 353 Actual/360
107 5.3500% 6 120 114 24 360 18 360 Actual/360
107.01
107.02
108 5.9300% 6 120 114 0 324 0 318 Actual/360
109 5.6400% 3 120 117 0 360 0 357 Actual/360
110 5.7200% 3 120 117 12 360 9 360 Actual/360
111 5.6300% 9 180 171 0 180 0 171 Actual/360
112 6.1140% 4 120 116 0 300 0 296 Actual/360
113 4.1300% 1 60 59 60 NA 59 NA 30/360
114 5.9900% 6 120 114 120 NA 114 NA Actual/360
115 6.0500% 0 120 120 0 360 0 360 Actual/360
116 4.4500% 9 120 111 0 360 0 351 Actual/360
117 5.9900% 4 120 116 0 336 0 332 Actual/360
118 6.5300% 2 120 118 0 240 0 238 Actual/360
119 6.0000% 2 120 118 0 360 0 358 Actual/360
120 5.6700% 3 120 117 0 360 0 357 Actual/360
121 5.7100% 6 120 114 24 360 18 360 Actual/360
122 5.0500% 1 180 179 0 180 0 179 Actual/360
123 6.3000% 6 120 114 0 360 0 354 Actual/360
124 5.5300% 4 96 92 0 360 0 356 Actual/360
125 6.4200% 3 120 117 0 360 0 357 Actual/360
Companion Note
2-C-A 5.4967% 1 120 119 24 Schedule 23 Schedule Actual/360
2-C-B1 6.6434% 1 120 119 24 Schedule 23 Schedule Actual/360
2-C-B2 6.6434% 1 120 119 24 Schedule 23 Schedule Actual/360
3-C 10.6140% 5 120 115 30 Schedule 25 Schedule Actual/360
15-C Schedule 4 60 56 0 Schedule 0 Schedule 30/360
41-C 8.4200% 12 120 108 0 300 0 288 Actual/360
44-C 15.0000% 7 120 113 0 360 0 353 30/360
50-C 13.5000% 7 120 113 23 336 16 329 Actual/360
60-C 13.5000% 6 120 114 0 360 0 354 Actual/360
64-C 12.7500% 0 120 120 0 360 0 360 Actual/360
108-C 13.5000% 6 120 114 0 324 0 318 Actual/360
(TABLE CONTINUED)
GCCFC Master Primary Ownership Mortgage
04-GG1 Administrative Servicing Servicing Interest Loan
LOAN ID Fee Rate Fee Fee (Fee/Leasehold) Seller Originator
------------------------------------------------------------------------------------------------------------------------------------
1 0.0208% 0.0100% 0.0100% Fee Simple / Leasehold GSMC GSMC
2 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
3 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
4 0.0208% 0.0100% 0.0100% Fee Simple / Leasehold GCFP GCFP
5 0.0208% 0.0100% 0.0100% Fee Simple GSMC / Commerzbank GSMC / Commerzbank
6 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
7 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
8 0.0208% 0.0100% 0.0100% Fee Simple GSMC / Commerzbank GSMC / Commerzbank
9 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
10 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
11 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
12 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
13 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
14 0.0208% 0.0100% 0.0100% Fee Simple GSMC / Commerzbank GSMC / Commerzbank
15 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
16 0.0408% 0.0100% 0.0300% GSMC GSMC
16.01 Fee Simple GSMC GSMC
16.02 Fee Simple GSMC GSMC
16.03 Fee Simple GSMC GSMC
16.04 Fee Simple GSMC GSMC
16.05 Fee Simple GSMC GSMC
16.06 Fee Simple GSMC GSMC
16.07 Fee Simple GSMC GSMC
16.08 Fee Simple GSMC GSMC
16.09 Fee Simple GSMC GSMC
16.10 Fee Simple GSMC GSMC
17 0.0908% 0.0100% 0.0800% GCFP GCFP
17.01 Fee Simple GCFP GCFP
17.02 Fee Simple GCFP GCFP
17.03 Fee Simple GCFP GCFP
17.04 Fee Simple GCFP GCFP
17.05 Fee Simple GCFP GCFP
17.06 Fee Simple GCFP GCFP
17.07 Fee Simple GCFP GCFP
17.08 Fee Simple GCFP GCFP
17.09 Fee Simple GCFP GCFP
17.10 Fee Simple GCFP GCFP
17.11 Fee Simple GCFP GCFP
17.12 Fee Simple GCFP GCFP
17.13 Fee Simple GCFP GCFP
17.14 Fee Simple GCFP GCFP
18 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
19 0.0608% 0.0100% 0.0500% Fee Simple GCFP GCFP
20 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
21 0.0208% 0.0100% 0.0100% GSMC GSMC
21.01 Fee Simple / Leasehold GSMC GSMC
21.02 Fee Simple GSMC GSMC
21.03 Fee Simple GSMC GSMC
21.04 Fee Simple GSMC GSMC
21.05 Fee Simple GSMC GSMC
21.06 Fee Simple GSMC GSMC
21.07 Fee Simple GSMC GSMC
21.08 Fee Simple GSMC GSMC
21.09 Fee Simple GSMC GSMC
21.10 Fee Simple GSMC GSMC
21.11 Fee Simple GSMC GSMC
21.12 Fee Simple GSMC GSMC
21.13 Fee Simple GSMC GSMC
21.14 Fee Simple GSMC GSMC
21.15 Fee Simple GSMC GSMC
21.16 Fee Simple GSMC GSMC
21.17 Fee Simple GSMC GSMC
21.18 Fee Simple GSMC GSMC
21.19 Fee Simple GSMC GSMC
22 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
23 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
24 0.0508% 0.0100% 0.0400% Fee Simple GSMC GSMC
25 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
26 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
27 0.0208% 0.0100% 0.0100% GSMC GSMC
27.01 Fee Simple GSMC GSMC
27.02 Fee Simple / Leasehold GSMC GSMC
27.03 Fee Simple GSMC GSMC
27.04 Fee Simple GSMC GSMC
27.05 Fee Simple GSMC GSMC
27.06 Fee Simple GSMC GSMC
27.07 Fee Simple GSMC GSMC
27.08 Fee Simple GSMC GSMC
27.09 Fee Simple GSMC GSMC
27.10 Fee Simple GSMC GSMC
27.11 Fee Simple GSMC GSMC
27.12 Fee Simple GSMC GSMC
27.13 Fee Simple GSMC GSMC
27.14 Fee Simple GSMC GSMC
27.15 Fee Simple GSMC GSMC
28 0.0608% 0.0100% 0.0500% Fee Simple GSMC GSMC
29 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
30 0.0208% 0.0100% 0.0100% GCFP GCFP
30.01 Fee Simple GCFP GCFP
30.02 Fee Simple GCFP GCFP
31 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
32 0.0208% 0.0100% 0.0100% Leasehold GCFP GCFP
33 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
34 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
35 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
36 0.0608% 0.0100% 0.0500% Fee Simple GSMC WaMu
37 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
38 0.0608% 0.0100% 0.0500% Fee Simple GSMC GSMC
39 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
40 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
41 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
42 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
43 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
44 0.0708% 0.0100% 0.0600% Fee Simple GSMC GSMC
45 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
46 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
47 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
48 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
49 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
50 0.0508% 0.0100% 0.0400% Fee Simple GSMC GSMC
51 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
52 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
53 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
54 0.0208% 0.0100% 0.0100% Fee Simple / Leasehold GSMC GSMC
55 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
56 0.0208% 0.0100% 0.0100% Leasehold GCFP GCFP
57 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
58 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
59 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
60 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
61 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
62 0.0608% 0.0100% 0.0500% Fee Simple GSMC WaMu
63 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
64 0.0708% 0.0100% 0.0600% Fee Simple GSMC GSMC
65 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
66 0.0708% 0.0100% 0.0600% Leasehold GSMC GSMC
67 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
68 0.0708% 0.0100% 0.0600% Fee Simple GSMC GSMC
69 0.0208% 0.0100% 0.0100% Leasehold GCFP GCFP
70 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
71 0.0908% 0.0100% 0.0800% Fee Simple GCFP GCFP
72 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
73 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
74 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
75 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
76 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
77 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
78 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
79 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
80 0.0708% 0.0100% 0.0600% Fee Simple GSMC GSMC
81 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
82 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
83 0.0708% 0.0100% 0.0600% Fee Simple GSMC GSMC
84 0.0808% 0.0100% 0.0700% Fee Simple GSMC GSMC
85 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
86 0.0608% 0.0100% 0.0500% Fee Simple GSMC GSMC
87 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
88 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
89 0.0908% 0.0100% 0.0800% Fee Simple GSMC GSMC
90 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
91 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
92 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
93 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
94 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
95 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
96 0.0908% 0.0100% 0.0800% Fee Simple GSMC GSMC
97 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
98 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
99 0.0708% 0.0100% 0.0600% Fee Simple GSMC GSMC
100 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
101 0.0208% 0.0100% 0.0100% GSMC GSMC
101.01 Fee Simple GSMC GSMC
101.02 Fee Simple GSMC GSMC
101.03 Fee Simple GSMC GSMC
102 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
103 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
104 0.0808% 0.0100% 0.0700% Fee Simple GSMC GSMC
105 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
106 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
107 0.0708% 0.0100% 0.0600% GSMC GSMC
107.01 Fee Simple GSMC GSMC
107.02 Fee Simple GSMC GSMC
108 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
109 0.0708% 0.0100% 0.0600% Fee Simple GSMC GSMC
110 0.0708% 0.0100% 0.0600% Fee Simple GSMC GSMC
111 0.0908% 0.0100% 0.0800% Fee Simple GSMC GSMC
112 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
113 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
114 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
115 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
116 0.0708% 0.0100% 0.0600% Fee Simple GSMC GSMC
117 0.0708% 0.0100% 0.0600% Fee Simple GSMC GSMC
118 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
119 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
120 0.0908% 0.0100% 0.0800% Fee Simple GSMC GSMC
121 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
122 0.0208% 0.0100% 0.0100% Fee Simple GSMC GSMC
123 0.0908% 0.0100% 0.0800% Fee Simple GSMC GSMC
124 0.0908% 0.0100% 0.0800% Fee Simple GSMC GSMC
125 0.0208% 0.0100% 0.0100% Fee Simple GCFP GCFP
Companion Notes
2-C-A 0.0100% 0.0000% 0.0100%
2-C-B1 0.0200% 0.0100% 0.0100%
2-C-B2 0.0100% 0.0000% 0.0100%
3-C 0.0100% 0.0000% 0.0100%
15-C 0.0100% 0.0000% 0.0100%
41-C 0.0100% 0.0000% 0.0100%
44-C 0.0500% 0.0000% 0.0500%
50-C 0.0500% 0.0000% 0.0500%
60-C 0.0500% 0.0000% 0.0500%
64-C 0.0500% 0.0000% 0.0500%
108-C 0.0500% 0.0000% 0.0500%
(TABLE CONTINUED)
GCCFC Crossed With
04-GG1 Other Loans
LOAN ID Prepayment Type (Crossed Group)
--------------------------------------------------------------------------------
1 Defeasance
2 Defeasance
3 Defeasance
4 Defeasance
5 Defeasance
6 Defeasance
7 Defeasance
8 Defeasance
9 Greater of YM or 1%
10 Defeasance
11 Defeasance
12 Defeasance
13 Defeasance
14 Defeasance
15 Defeasance
16 Defeasance
16.01
16.02
16.03
16.04
16.05
16.06
16.07
16.08
16.09
16.10
17 Defeasance
17.01
17.02
17.03
17.04
17.05
17.06
17.07
17.08
17.09
17.10
17.11
17.12
17.13
17.14
18 Yield Maintenance
19 Defeasance
20 Defeasance
21 Defeasance
21.01
21.02
21.03
21.04
21.05
21.06
21.07
21.08
21.09
21.10
21.11
21.12
21.13
21.14
21.15
21.16
21.17
21.18
21.19
22 Defeasance
23 Defeasance
24 Defeasance
25 Defeasance
26 Defeasance
27 Defeasance
27.01
27.02
27.03
27.04
27.05
27.06
27.07
27.08
27.09
27.10
27.11
27.12
27.13
27.14
27.15
28 Defeasance
29 Defeasance
30 Defeasance
30.01
30.02
31 Defeasance
32 Defeasance
33 Defeasance
34 Defeasance
35 Defeasance
36 Defeasance
37 Defeasance
38 Defeasance
39 Defeasance
40 Defeasance
41 Defeasance
42 Defeasance
43 Greater of YM or 1%
44 Defeasance
45 Defeasance
46 Defeasance
47 Defeasance
48 Defeasance
49 Defeasance
50 Defeasance
51 Defeasance
52 Defeasance
53 Defeasance
54 Defeasance
55 Defeasance
56 Defeasance
57 Defeasance
58 Defeasance
59 Defeasance
60 Defeasance
61 Defeasance
62 Defeasance
63 Defeasance
64 Defeasance
65 Defeasance
66 Defeasance
67 Defeasance
68 Defeasance
69 Defeasance
70 Defeasance
71 Defeasance
72 Defeasance
73 Defeasance
74 Defeasance
75 Defeasance
76 Defeasance C-77
77 Defeasance C-76
78 Defeasance
79 Defeasance
80 Defeasance
81 Defeasance
82 Defeasance
83 Defeasance
84 Defeasance
85 Defeasance
86 Defeasance
87 Defeasance
88 Greater of YM or 1%
89 Defeasance
90 Defeasance/Discounted YM /Prepayment Premium
91 Defeasance
92 Defeasance
93 Defeasance
94 Defeasance
95 Defeasance
96 Defeasance
97 Greater of YM or 1%
98 Defeasance
99 Defeasance
100 Defeasance
101 Greater of YM or 1%
101.01
101.02
101.03
102 Defeasance
103 Defeasance
104 Defeasance
105 Defeasance
106 Defeasance
107 Defeasance
107.01
107.02
108 Defeasance
109 Defeasance
110 Defeasance
111 Defeasance
112 Defeasance
113 Defeasance
114 Defeasance
115 Greater of YM or 1%
116 Defeasance
117 Defeasance
118 Defeasance
119 Greater of YM or 1%
120 Defeasance
121 Defeasance
122 Defeasance
123 Defeasance
124 Defeasance
125 Defeasance
Companion Notes
2-C-A
2-C-B1
2-C-B2
3-C
15-C
41-C
44-C
50-C
60-C
64-C
108-C
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
----------------------------------------------------------------------------------------------------------------
Doc Key Doc Code Document Category
----------------------------------------------------------------------------------------------------------------
797125 4.SRC-MORT Mortgage
797258 4.SRC-MORT Mortgage
798611 2.SRC-MORT Mortgage
798616 3.SRC-TINS Title Insurance
798637 2.SRC-MORT Mortgage
798641 3.SRC-TINS Title Insurance
798652 2.SRC-MORT Mortgage
798662 4.SRC-TINS Title Insurance
24435 2.SRC-MORT Mortgage
24441 5.SRC-TINS Title Insurance - Title Policy
24814 2.SRC-MORT Mortgage
24943 3.SRC-MORT Mortgage
24960 0.XXX-XXXX.XXX Mortgage(Gap)
24952 7.SRC-TINS Title Insurance - Title Policy
25677 5.SRC-TINS Title Insurance - Title Policy
26011 2.SRC-NOTE.JR Note(Junior)
31308 17.SRC-TINS Title Insurance - Title Policy
28107 4.SRC-MORT Mortgage
28125 16.SRC-TINS Title Insurance - Title Policy
28283 4.SRC-MORT Mortgage
28479 18.SRC-TINS Title Insurance - Title Policy
741005 2.MOD1+NOTE.MEZZ Modification #1 of Note(Mezzanine)
30878 16.SRC-TINS Title Insurance - Title Policy
31779 4.SRC-MORT Mortgage
31806 16.SRC-TINS Title Insurance - Title Policy
725513 15.SRC-TINS Title Insurance - Title Policy
726299 15.SRC-TINS Title Insurance - Title Policy
735032 4.SRC-MORT Mortgage
735067 16.SRC-TINS Title Insurance - Title Policy
737550 3.SRC-MORT Mortgage
798358 14.SRC-TINS Title Insurance - Title Policy
744466 15.SRC-TINS Title Insurance - Closing Inst. And Proform
744980 4.SRC-MORT Mortgage
745158 15.SRC-TINS Title Insurance - Closing Inst. And Proform
749325 4.SRC-MORT Mortgage
749488 15.SRC-TINS Title Insurance - Closing Inst. And Proform
750282 4.SRC-MORT Mortgage
750348 16.SRC-TINS Title Insurance - Closing Inst. And Proform
786621 4.SRC-MORT Mortgage
786668 15.SRC-TINS Title Insurance - Closing Inst. And Proform
787590 3.SRC-MORT Mortgage
787693 14.SRC-TINS Title Insurance - Closing Inst. And Proform
24732 2.SRC-MORT Mortgage
608074 4.SRC-TINS Title Insurance - Proforma
634980 3.SRC-TINS Title Insurance - Proforma
681886 3.SRC-TINS Title Insurance - Title Policy
704013 3.SRC-MORT Mortgage
704014 0.XXX-XXXX.XXX Mortgage(Gap)
704066 2.SRC-MORT Mortgage
798421 5.SRC-TINS Title Insurance - Title Policy
726574 3.SRC-TINS Title Insurance - Proforma
726839 3.SRC-MORT Mortgage
726987 14.SRC-TINS Title Insurance - Proforma
728309 8.SRC-TINS Title Insurance - Proforma
733018 13.SRC-TINS Title Insurance - Proforma
733226 4.SRC-MORT Mortgage
733263 14.SRC-TINS Title Insurance - Proforma
734667 3.SRC-MORT Mortgage
737059 8.SRC-TINS Title Insurance - Title Policy
737816 13.SRC-TINS Title Insurance - Proforma
738507 3.SRC-MORT Mortgage
740070 4.SRC-MORT Mortgage
740105 13.SRC-TINS Title Insurance - Proforma
744849 15.SRC-TINS Title Insurance - Proforma
746147 14.SRC-TINS Title Insurance - Title Policy
748662 00.XXX-XXXX.XXX Mortgage(Gap)
749860 13.SRC-TINS Title Insurance - Proforma
750452 14.SRC-TINS Title Insurance - Proforma
751303 3.SRC-TINS Title Insurance - Proforma
751450 5.SRC-TINS Title Insurance - Proforma
751530 4.SRC-MORT Mortgage
751524 3.SRC-TINS Title Insurance - Proforma
798533 16.SRC-TINS Title Insurance - Title Policy
786177 4.SRC-MORT Mortgage
786188 12.SRC-TINS Title Insurance - Proforma
786732 5.SRC-TINS Title Insurance - Proforma
787174 3.SRC-MORT Mortgage
787223 3.SRC-MORT Mortgage
787520 3.SRC-MORT Mortgage
787622 10.SRC-TINS Title Insurance - Proforma
787864 14.SRC-TINS Title Insurance - Proforma
788177 26.SRC-TINS Title Insurance - Closing Inst. And Proform
788053 12.SRC-TINS Title Insurance - Title Policy
789071 13.SRC-TINS Title Insurance - Proforma
789197 13.SRC-TINS Title Insurance - Proforma
796841 17.SRC+MORT Mortgage
796880 28.SRC-TINS Title Insurance - Title Policy
789971 15.SRC-TINS Title Insurance - Proforma
790107 5.SRC-TINS Title Insurance - Proforma
790230 18.SRC-TINS Title Insurance - Proforma
790462 9.SRC-TINS Title Insurance - Title Policy
790539 13.SRC-TINS Title Insurance - Proforma
790596 13.SRC-TINS Title Insurance - Proforma
791070 11.SRC-TINS Title Insurance - Proforma
791358 3.SRC-MORT Mortgage
791376 15.SRC-TINS Title Insurance - Proforma
791494 3.SRC-MORT Mortgage
791501 7.SRC-TINS Title Insurance - Proforma
791923 3.SRC-MORT Mortgage
791990 14.SRC-TINS Title Insurance - Proforma
792704 13.SRC-TINS Title Insurance - Proforma
796621 4.SRC-MORT Mortgage
798346 12.SRC-TINS Title Insurance - Title Policy
797434 17.SRC-TINS Title Insurance - Proforma
797436 18.SRC-TINS Title Insurance - Title Commitment
-----------------------------------------------------------------------------------------------------------------
Doc Key To: Evidence of Recording
-----------------------------------------------------------------------------------------------------------------
797125 ARCHON FINANCIAL, L.P.; COMMERZBANK AG, NEW YORK BRANCH No Evidence of Recording
797258 ARCHON FINANCIAL, L.P.; COMMERZBANK AG, NEW YORK BRANCH No Evidence of Recording
798611 ARCHON FINANCIAL, L.P. No Evidence of Recording
798616 Document Not Received
798637 XXXXXXX XXXXX MORTGAGE COMPANY Document Not Received
798641 Document Not Received
798652 ARCHON FINANCIAL, L.P. No Evidence of Recording
798662 Document Not Received
24435 No Evidence of Recording
24441 Document Not Received
24814 No Evidence of Recording
24943 No Evidence of Recording
24960 No Evidence of Recording
24952 Document Not Received
25677 Document Not Received
26011 Document Not Received
31308 Title Policy
28107 ARCHON FINANCIAL, L.P. Original Recorders Stamp
28125 Title Policy
28283 ARCHON FINANCIAL, L.P. No Evidence of Recording
28479 Title Policy
741005 XXXXXXX SACHS MORTGAGE COMPANY No Evidence of Recording
30878 Title Policy
31779 ARCHON FINANCIAL, L.P. No Evidence of Recording
31806 Title Policy
725513 Document Not Received
726299 Document Not Received
735032 ARCHON FINANCIAL, L.P. No Evidence of Recording
735067 Document Not Received
737550 ARCHON FINANCIAL, L.P. No Evidence of Recording
798358 Document Not Received
744466 No Evidence of Recording
744980 ARCHON FINANCIAL, L.P. No Evidence of Recording
745158 No Evidence of Recording
749325 ARCHON FINANCIAL, L.P. No Evidence of Recording
749488 No Evidence of Recording
750282 ARCHON FINANCIAL, L.P. No Evidence of Recording
750348 No Evidence of Recording
786621 ARCHON FINANCIAL, L.P. No Evidence of Recording
786668 No Evidence of Recording
787590 ARCHON FINANCIAL, L.P. No Evidence of Recording
787693 No Evidence of Recording
24732 No Evidence of Recording
608074 No Evidence of Recording
634980 No Evidence of Recording
681886
704013 No Evidence of Recording
704014 No Evidence of Recording
704066 No Evidence of Recording
798421
726574
726839 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. No Evidence of Recording
726987 No Evidence of Recording
728309 No Evidence of Recording
733018 No Evidence of Recording
733226 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. Cert. True & Sent for rec
733263 No Evidence of Recording
734667 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. Cert. True & Sent for rec
737059 No Evidence of Recording
737816 No Evidence of Recording
738507 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. Cert. True & Sent for rec
740070 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. Cert. True & Sent for rec
740105 No Evidence of Recording
744849 No Evidence of Recording
746147 No Evidence of Recording
748662 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. No Evidence of Recording
749860 No Evidence of Recording
750452 No Evidence of Recording
751303 No Evidence of Recording
751450 No Evidence of Recording
751530 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. Cert. True & Sent for rec
751524 No Evidence of Recording
798533 Document Not Received
786177 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. Cert. True & Sent for rec
786188 No Evidence of Recording
786732 No Evidence of Recording
787174 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. No Evidence of Recording
787223 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. No Evidence of Recording
787520 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. No Evidence of Recording
787622 No Evidence of Recording
787864 No Evidence of Recording
788177 No Evidence of Recording
788053 Document Not Received
789071 No Evidence of Recording
789197 No Evidence of Recording
796841 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. No Evidence of Recording
796880 No Evidence of Recording
789971 No Evidence of Recording
790107 No Evidence of Recording
790230 No Evidence of Recording
790462 No Evidence of Recording
790539 No Evidence of Recording
790596 No Evidence of Recording
791070 No Evidence of Recording
791358 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. Cert. True & Sent for rec
791376 No Evidence of Recording
791494 SKYMAR CAPITAL CORPORATION Cert. True & Sent for rec
791501 No Evidence of Recording
791923 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. Cert. True & Sent for rec
791990 No Evidence of Recording
792704 No Evidence of Recording
796621 GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. No Evidence of Recording
798346 Document Not Received
797434 No Evidence of Recording
797436 No Evidence of Recording
-------------------------------------------------------------------------------------------------------------------------
Doc Key Signature Exception Cleared Date
-------------------------------------------------------------------------------------------------------------------------
797125 Original Signature EVIDENCE OF RECORDING REQUIRED
797258 Original Signature EVIDENCE OF RECORDING REQUIRED
798611 Copy of Signature EVIDENCE OF RECORDING REQUIRED
798616 Document Not Received ORIGINAL TITLE POLICY REQUIRED
798637 Document Not Received EVIDENCE OF RECORDING REQUIRED
798641 Document Not Received ORIGINAL TITLE POLICY REQUIRED
798652 Original Signature EVIDENCE OF RECORDING REQUIRED
798662 Document Not Received ORIGINAL TITLE POLICY REQUIRED
24435 Original Signature EVIDENCE OF RECORDING REQUIRED
24441 Document Not Received ORIGINAL TITLE POLICY REQUIRED
24814 Original Signature EVIDENCE OF RECORDING REQUIRED
24943 Original Signature EVIDENCE OF RECORDING REQUIRED
24960 Original Signature EVIDENCE OF RECORDING REQUIRED
24952 Document Not Received ORIGINAL TITLE POLICY REQUIRED
25677 Document Not Received ORIGINAL TITLE POLICY REQUIRED
26011 Document Not Received ORIGINAL DOCUMENT REQUIRED
31308 No Signature ORIGINAL TITLE POLICY REQUIRED
28107 Original Signature EVIDENCE OF RECORDING REQUIRED
28125 Document Not Received ORIGINAL TITLE POLICY REQUIRED
28283 Original Signature EVIDENCE OF RECORDING REQUIRED
28479 Original Signature ORIGINAL DOCUMENT REQUIRED
741005 Original Signature EVIDENCE OF RECORDING REQUIRED
30878 Document Not Received ORIGINAL TITLE POLICY REQUIRED
31779 Original Signature EVIDENCE OF RECORDING REQUIRED
31806 Document Not Received ORIGINAL TITLE POLICY REQUIRED
725513 Document Not Received ORIGINAL TITLE POLICY REQUIRED
726299 Document Not Received ORIGINAL TITLE POLICY REQUIRED
735032 Original Signature EVIDENCE OF RECORDING REQUIRED
735067 Document Not Received ORIGINAL TITLE POLICY REQUIRED
737550 Original Signature EVIDENCE OF RECORDING REQUIRED
798358 Document Not Received ORIGINAL TITLE POLICY REQUIRED
744466 No Signature ORIGINAL TITLE POLICY REQUIRED
744980 Original Signature EVIDENCE OF RECORDING REQUIRED
745158 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
749325 Original Signature EVIDENCE OF RECORDING REQUIRED
749488 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
750282 Original Signature EVIDENCE OF RECORDING REQUIRED
750348 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
786621 Copy of Signature EVIDENCE OF RECORDING REQUIRED
786668 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
787590 Original Signature EVIDENCE OF RECORDING REQUIRED
787693 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
24732 Original Signature EVIDENCE OF RECORDING REQUIRED
608074 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
634980 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
681886 ORIGINAL TITLE POLICY REQUIRED
704013 Original Signature EVIDENCE OF RECORDING REQUIRED
704014 Original Signature EVIDENCE OF RECORDING REQUIRED
704066 Original Signature EVIDENCE OF RECORDING REQUIRED
798421 ORIGINAL TITLE POLICY REQUIRED
726574 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
726839 Original Signature EVIDENCE OF RECORDING REQUIRED
726987 No Signature ORIGINAL TITLE POLICY REQUIRED
728309 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
733018 No Signature ORIGINAL TITLE POLICY REQUIRED
733226 Copy of Signature EVIDENCE OF RECORDING REQUIRED
733263 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
734667 Copy of Signature EVIDENCE OF RECORDING REQUIRED
737059 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
737816 No Signature ORIGINAL TITLE POLICY REQUIRED
738507 Copy of Signature EVIDENCE OF RECORDING REQUIRED
740070 Original Signature EVIDENCE OF RECORDING REQUIRED
740105 No Signature ORIGINAL TITLE POLICY REQUIRED
744849 No Signature ORIGINAL TITLE POLICY REQUIRED
746147 Original Signature ORIGINAL TITLE POLICY REQUIRED
748662 Original Signature EVIDENCE OF RECORDING REQUIRED
749860 No Signature ORIGINAL TITLE POLICY REQUIRED
750452 No Signature ORIGINAL TITLE POLICY REQUIRED
751303 No Signature ORIGINAL TITLE POLICY REQUIRED
751450 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
751530 Copy of Signature EVIDENCE OF RECORDING REQUIRED
751524 No Signature ORIGINAL TITLE POLICY REQUIRED
798533 Document Not Received ORIGINAL TITLE POLICY REQUIRED
786177 Copy of Signature EVIDENCE OF RECORDING REQUIRED
786188 No Signature ORIGINAL TITLE POLICY REQUIRED
786732 No Signature ORIGINAL TITLE POLICY REQUIRED
787174 Original Signature EVIDENCE OF RECORDING REQUIRED
787223 Original Signature EVIDENCE OF RECORDING REQUIRED
787520 Original Signature EVIDENCE OF RECORDING REQUIRED
787622 No Signature ORIGINAL TITLE POLICY REQUIRED
787864 No Signature ORIGINAL TITLE POLICY REQUIRED
788177 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
788053 Document Not Received ORIGINAL TITLE POLICY REQUIRED
789071 No Signature ORIGINAL TITLE POLICY REQUIRED
789197 No Signature ORIGINAL TITLE POLICY REQUIRED
796841 Original Signature EVIDENCE OF RECORDING REQUIRED
796880 Copy of Signature ORIGINAL TITLE POLICY REQUIRED
789971 No Signature ORIGINAL TITLE POLICY REQUIRED
790107 No Signature ORIGINAL TITLE POLICY REQUIRED
790230 No Signature ORIGINAL TITLE POLICY REQUIRED
790462 No Signature ORIGINAL TITLE POLICY REQUIRED
790539 No Signature ORIGINAL TITLE POLICY REQUIRED
790596 No Signature ORIGINAL TITLE POLICY REQUIRED
791070 No Signature ORIGINAL TITLE POLICY REQUIRED
791358 Original Signature EVIDENCE OF RECORDING REQUIRED
791376 No Signature ORIGINAL TITLE POLICY REQUIRED
791494 Copy of Signature EVIDENCE OF RECORDING REQUIRED
791501 No Signature ORIGINAL TITLE POLICY REQUIRED
791923 Copy of Signature EVIDENCE OF RECORDING REQUIRED
791990 No Signature ORIGINAL TITLE POLICY REQUIRED
792704 No Signature ORIGINAL TITLE POLICY REQUIRED
796621 Original Signature EVIDENCE OF RECORDING REQUIRED
798346 Document Not Received ORIGINAL TITLE POLICY REQUIRED
797434 No Signature ORIGINAL TITLE POLICY REQUIRED
797436 Original Signature ORIGINAL TITLE POLICY REQUIRED
-----------------------------------------------------------------------------------------------------------------------
Doc Key Condition Memo Memo
-----------------------------------------------------------------------------------------------------------------------
797125
797258
798611
798616
798637
798641
798652
798662
24435
24441
24814
24943
24960
24952
25677
26011
31308 NOT COUNTERSIGNED;
28107
28125
28283
28479
741005
30878
31779
31806
725513
726299
735032
735067
737550
798358
744466
744980
745158
749325
749488
750282
750348
786621 page 69 has copy of sig while sig for whole document is original;
786668
787590
787693
24732
608074
634980
681886
704013
704014
704066
798421
726574
726839
726987
728309
733018
733226
733263
734667
737059
737816
738507
740070
740105
744849
746147
748662
749860
750452
751303
751450
751530
751524
798533
786177
786188
786732
787174
787223
787520
787622
787864
788177
788053
789071
789197
796841
796880
789971
790107
790230
790462
790539
790596
791070
791358
791376
791494
791501
791923
791990
792704
796621
798346
797434
797436 NOTE B FOR $650,000 IN 000-0000-000
----------------------------------------------------------------------------------------------------------
Doc Key Memo 2
----------------------------------------------------------------------------------------------------------
797125
797258
798611
798616
798637
798641
798652
798662
24435 MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND i FIXTURE FILING; to ARCHON FINANCIA
24441 CHICAGO TITLE INSURANCE COMPANY; $2,900,000; OFFICE FILE NO. i 10000.030
24814 MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND i FIXTURE FILING; to ARCHON FINANCIA
24943 AMENDED AND RESTATED MORTGAGE, ASSIGNMENT OF RENTS, SECURITY i AGREEMENT AND FIXTURE FILIN
24960 RECEIPT OF FUTURE ADVANCE; to ARCHON FINANCIAL LP
24952 FIRST AMERICAN TITLE INSURANCE COMPANY; $14,400,000; AGENTS i FILE NO. 0-000-000
25677 OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY; $13,785,900; i FILE ID 03R4852
26011 B-NOTE; $750,000
31308
28107
28125
28283
28479
741005
30878
31779
31806
725513
726299
735032
735067
737550
798358
744466
744980
745158
749325
749488
750282
750348
786621
786668
787590
787693
24732 MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND i FIXTURE FILING; to WASHINGTON MUTU
608074 COMMOWEALTH LAND TITLE INSURANCE; POLICY #10029595
634980 FIRST AMERICAN TITLE INSURANCE COMPANY; POLICY # 161008SLO
681886
704013 AMENDED, RESTATED AND CONSOLIDATED MORTGAGE, ASSIGNEMNT OF i LEASES AND RENTS AND SECURITY
704014 MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY i AGREEMENT (GAP); to GREENWICH CAPI
704066 ACT OF MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT; i to GREENWICH CAPITAL FINANC
798421
726574
726839
726987
728309
733018
733226
733263
734667
737059
737816
738507
740070
740105
744849
746147
748662
749860
750452
751303
751450
751530
751524
798533
786177
786188
786732
787174
787223
787520
787622
787864
788177
788053
789071
789197
796841
796880
789971
790107
790230
790462
790539
790596
791070
791358
791376
791494
791501
791923
791990
792704
796621
798346
797434
797436
-----------------------------------------------------------------------------------------------------------------------
Doc Key Recording Info Document Class Position
-----------------------------------------------------------------------------------------------------------------------
797125 Jurisdiction: XXXXXX, TX, Mortgage Source
797258 Jurisdiction: ALAMEDA, CA, Mortgage Source
798611 Mortgage Source
798616 Title Insurance Source
798637 Mortgage Source
798641 Title Insurance Source
798652 Mortgage Source
798662 Title Insurance Source
24435 Mortgage Source
24441 Title Insurance Source
24814 Mortgage Source
24943 Mortgage Source
24960 Mortgage Source
24952 Title Insurance Source
25677 Title Insurance Source
26011 Note Source
31308 Title Insurance Source
28107 Inst. Num: 2003-0249269, Book: 13862, Page: 5832, Mortgage Source
28125 Title Insurance Source
28283 Jurisdiction: CHARLOTTESVILLE CITY, VA, Mortgage Source
28479 Title Insurance Source
741005 Note Modification
30878 Title Insurance Source
31779 Mortgage Source
31806 Title Insurance Source
725513 Title Insurance Source
726299 Title Insurance Source
735032 Mortgage Source
735067 Title Insurance Source
737550 Mortgage Source
798358 Title Insurance Source
744466 Title Insurance Source
744980 Mortgage Source
745158 Title Insurance Source
749325 Mortgage Source
749488 Title Insurance Source
750282 Mortgage Source
750348 Title Insurance Source
786621 Mortgage Source
786668 Title Insurance Source
787590 Mortgage Source
787693 Title Insurance Source
24732 Mortgage Source
608074 Title Insurance Source
634980 Title Insurance Source
681886 Title Insurance Source
704013 Mortgage Source
704014 Mortgage Source
704066 Mortgage Source
798421 Title Insurance Source
726574 Title Insurance Source
726839 Mortgage Source
726987 Title Insurance Source
728309 Title Insurance Source
733018 Title Insurance Source
733226 Mortgage Source
733263 Title Insurance Source
734667 Mortgage Source
737059 Title Insurance Source
737816 Title Insurance Source
738507 Mortgage Source
740070 Mortgage Source
740105 Title Insurance Source
744849 Title Insurance Source
746147 Title Insurance Source
748662 Mortgage Source
749860 Title Insurance Source
750452 Title Insurance Source
751303 Title Insurance Source
751450 Title Insurance Source
751530 Mortgage Source
751524 Title Insurance Source
798533 Title Insurance Source
786177 Mortgage Source
786188 Title Insurance Source
786732 Title Insurance Source
787174 Mortgage Source
787223 Mortgage Source
787520 Mortgage Source
787622 Title Insurance Source
787864 Title Insurance Source
788177 Title Insurance Source
788053 Title Insurance Source
789071 Title Insurance Source
789197 Title Insurance Source
796841 Mortgage Source
796880 Title Insurance Source
789971 Title Insurance Source
790107 Title Insurance Source
790230 Title Insurance Source
790462 Title Insurance Source
790539 Title Insurance Source
790596 Title Insurance Source
791070 Title Insurance Source
791358 Mortgage Source
791376 Title Insurance Source
791494 Mortgage Source
791501 Title Insurance Source
791923 Mortgage Source
791990 Title Insurance Source
792704 Title Insurance Source
796621 Mortgage Source
798346 Title Insurance Source
797434 Title Insurance Source
797436 Title Insurance Source
----------------------------------------------------------------------------------------------------------------------------------
Doc Key Document Title
----------------------------------------------------------------------------------------------------------------------------------
797125
797258
798611 DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE FILING
798616
798637
798641
798652 MORTGAGE, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE FILING
798662
24435
24441
24814
24943
24960
24952
25677
26011
31308 TITLE POLICY
28107 DEED TO SECURE DEBT, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
28125
28283 DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
28479 TITLE POLICY
741005 FIRST AMENDMENT TO MORTGAGE NOTE (NOTE A) AND MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
30878 TITLE POLICY
31779 DEED TO SECURE DEBT, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
31806 TITLE POLICY
725513
726299
735032 MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
735067
737550 DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
798358
744466
744980 MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
745158
749325 DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
749488
750282 LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
750348
786621 LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
786668
787590 OPEN-END MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
787693
24732
608074
634980
681886
704013
704014
704066
798421
726574 TITLE POLICY
726839 FEE AND LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING
726987 ALTA LENDER'S POLICY
728309
733018 LOAN POLICY
733226 DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
733263
734667 MORTGAGE
737059 POLICY OF TITLE INSURANCE
737816
738507 DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
740070 DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
740105
744849
746147 POLICY OF TITLE INSURANCE
748662
749860
750452 LOAN POLICY
751303 LOAN POLICY
751450
751530 DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
751524
798533
786177 DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
786188
786732 POLICY OF TITLE INSURANCE
787174 MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
787223 MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
787520 DEED OF TRUST, ASSIGNMENT OF LEASES AND SECURITY AGREEMENT
787622
787864
788177
788053
789071
789197 POLICY OF TITLE INSURANCE
796841 AMENDMENT TO FEE AND LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING AND
ASSIGNMENT OF LEA
796880
789971
790107 LOAN POLICY OF TITLE INSURANCE
790230 POLICY OF TITLE INSURANCE
790462 LOAN POLICY
790539
790596
791070
791358 MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
791376 LOAN POLICY OF TITLE INSURANCE
791494 DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
791501
791923 DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
791990
792704
796621 FEE AND LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
798346
797434
797436 EAGLE 9 UCC INSURANCE COMMITMENT
---------------------------------------------------------------------------
Doc Key Issue ID Review Set File ID
---------------------------------------------------------------------------
797125 GCCF4GG1 GCCF4GG1 0000-0000-000
797258 GCCF4GG1 GCCF4GG1 0000-0000-000
798611 GCCF4GG1 GCCF4GG1 0000-0000-000
798616 GCCF4GG1 GCCF4GG1 0000-0000-000
798637 GCCF4GG1 GCCF4GG1 0000-0000-000
798641 GCCF4GG1 GCCF4GG1 0000-0000-000
798652 GCCF4GG1 GCCF4GG1 0000-0000-000
798662 GCCF4GG1 GCCF4GG1 0000-0000-000
24435 GCCF4GG1 GCCF4GG1 000-0000-000
24441 GCCF4GG1 GCCF4GG1 000-0000-000
24814 GCCF4GG1 GCCF4GG1 000-0000-000
24943 GCCF4GG1 GCCF4GG1 000-0000-000
24960 GCCF4GG1 GCCF4GG1 000-0000-000
24952 GCCF4GG1 GCCF4GG1 000-0000-000
25677 GCCF4GG1 GCCF4GG1 000-0000-000
26011 GCCF4GG1 GCCF4GG1 000-0000-000
31308 GCCF4GG1 GCCF4GG1 000-0000-000
28107 GCCF4GG1 GCCF4GG1 000-0000-000
28125 GCCF4GG1 GCCF4GG1 000-0000-000
28283 GCCF4GG1 GCCF4GG1 000-0000-000
28479 GCCF4GG1 GCCF4GG1 000-0000-000
741005 GCCF4GG1 GCCF4GG1 000-0000-000
30878 GCCF4GG1 GCCF4GG1 000-0000-000
31779 GCCF4GG1 GCCF4GG1 000-0000-000
31806 GCCF4GG1 GCCF4GG1 000-0000-000
725513 GCCF4GG1 GCCF4GG1 000-0000-000
726299 GCCF4GG1 GCCF4GG1 000-0000-000
735032 GCCF4GG1 GCCF4GG1 000-0000-000
735067 GCCF4GG1 GCCF4GG1 000-0000-000
737550 GCCF4GG1 GCCF4GG1 000-0000-000
798358 GCCF4GG1 GCCF4GG1 000-0000-000
744466 GCCF4GG1 GCCF4GG1 000-0000-000
744980 GCCF4GG1 GCCF4GG1 000-0000-000
745158 GCCF4GG1 GCCF4GG1 000-0000-000
749325 GCCF4GG1 GCCF4GG1 000-0000-000
749488 GCCF4GG1 GCCF4GG1 000-0000-000
750282 GCCF4GG1 GCCF4GG1 000-0000-000
750348 GCCF4GG1 GCCF4GG1 000-0000-000
786621 GCCF4GG1 GCCF4GG1 000-0000-000
786668 GCCF4GG1 GCCF4GG1 000-0000-000
787590 GCCF4GG1 GCCF4GG1 000-0000-000
787693 GCCF4GG1 GCCF4GG1 000-0000-000
24732 GCCF4GG1 GCCF4GG1 000-0000-000
608074 GCCF4GG1 GCCF4GG1 000-0000-000
634980 GCCF4GG1 GCCF4GG1 000-0000-000
681886 GCCF4GG1 GCCF4GG1 000-0000-000
704013 GCCF4GG1 GCCF4GG1 000-0000-000
704014 GCCF4GG1 GCCF4GG1 000-0000-000
704066 GCCF4GG1 GCCF4GG1 000-0000-000
798421 GCCF4GG1 GCCF4GG1 000-0000-000
726574 GCCF4GG1 GCCF4GG1 000-0000-000
726839 GCCF4GG1 GCCF4GG1 000-0000-000
726987 GCCF4GG1 GCCF4GG1 000-0000-000
728309 GCCF4GG1 GCCF4GG1 000-0000-000
733018 GCCF4GG1 GCCF4GG1 000-0000-000
733226 GCCF4GG1 GCCF4GG1 000-0000-000
733263 GCCF4GG1 GCCF4GG1 000-0000-000
734667 GCCF4GG1 GCCF4GG1 000-0000-000
737059 GCCF4GG1 GCCF4GG1 000-0000-000
737816 GCCF4GG1 GCCF4GG1 000-0000-000
738507 GCCF4GG1 GCCF4GG1 000-0000-000
740070 GCCF4GG1 GCCF4GG1 000-0000-000
740105 GCCF4GG1 GCCF4GG1 000-0000-000
744849 GCCF4GG1 GCCF4GG1 000-0000-000
746147 GCCF4GG1 GCCF4GG1 000-0000-000
748662 GCCF4GG1 GCCF4GG1 000-0000-000
749860 GCCF4GG1 GCCF4GG1 000-0000-000
750452 GCCF4GG1 GCCF4GG1 000-0000-000
751303 GCCF4GG1 GCCF4GG1 000-0000-000
751450 GCCF4GG1 GCCF4GG1 000-0000-000
751530 GCCF4GG1 GCCF4GG1 000-0000-000
751524 GCCF4GG1 GCCF4GG1 000-0000-000
798533 GCCF4GG1 GCCF4GG1 000-0000-000
786177 GCCF4GG1 GCCF4GG1 000-0000-000
786188 GCCF4GG1 GCCF4GG1 000-0000-000
786732 GCCF4GG1 GCCF4GG1 000-0000-000
787174 GCCF4GG1 GCCF4GG1 000-0000-000
787223 GCCF4GG1 GCCF4GG1 000-0000-000
787520 GCCF4GG1 GCCF4GG1 000-0000-000
787622 GCCF4GG1 GCCF4GG1 000-0000-000
787864 GCCF4GG1 GCCF4GG1 000-0000-000
788177 GCCF4GG1 GCCF4GG1 000-0000-000
788053 GCCF4GG1 GCCF4GG1 000-0000-000
789071 GCCF4GG1 GCCF4GG1 000-0000-000
789197 GCCF4GG1 GCCF4GG1 000-0000-000
796841 GCCF4GG1 GCCF4GG1 000-0000-000
796880 GCCF4GG1 GCCF4GG1 000-0000-000
789971 GCCF4GG1 GCCF4GG1 000-0000-000
790107 GCCF4GG1 GCCF4GG1 000-0000-000
790230 GCCF4GG1 GCCF4GG1 000-0000-000
790462 GCCF4GG1 GCCF4GG1 000-0000-000
790539 GCCF4GG1 GCCF4GG1 000-0000-000
790596 GCCF4GG1 GCCF4GG1 000-0000-000
791070 GCCF4GG1 GCCF4GG1 000-0000-000
791358 GCCF4GG1 GCCF4GG1 000-0000-000
791376 GCCF4GG1 GCCF4GG1 000-0000-000
791494 GCCF4GG1 GCCF4GG1 000-0000-000
791501 GCCF4GG1 GCCF4GG1 000-0000-000
791923 GCCF4GG1 GCCF4GG1 000-0000-000
791990 GCCF4GG1 GCCF4GG1 000-0000-000
792704 GCCF4GG1 GCCF4GG1 000-0000-000
796621 GCCF4GG1 GCCF4GG1 000-0000-000
798346 GCCF4GG1 GCCF4GG1 000-0000-000
797434 GCCF4GG1 000-0000-000
797436 GCCF4GG1 000-0000-000
-----------------------------------------------------------------------------------------------------------
Doc Key Borrower
-----------------------------------------------------------------------------------------------------------
797125 GGP-DEERBROOK, LP
797258 XXXXXXXXX XXXX, X.X.
000000 CRESCENT 5 HOUSTON CENTER, L.P.
798616 CRESCENT 5 HOUSTON CENTER, L.P.
798637 XX XX BROOK HIGHLAND LLC; XX XX JACKSONVILLE REGIONAL LLC; XX XX GREEN RIDGE LLC
798641 XX XX BROOK HIGHLAND LLC; XX XX JACKSONVILLE REGIONAL LLC; XX XX GREEN RIDGE LLC
798652 WATER TOWER LLC
798662 WATER TOWER LLC
00000 XXXXX XXXXXXX XXXX XXXXX XXXXXXX XX
00000 XXXXX XXXXXXX XXXX XXXXX XXXXXXX XX
00000 XXXXXXXX 00, X.X.
00000 XXXXX DEERWOOD, LTD.
24960 EPOCH DEERWOOD, LTD.
24952 EPOCH DEERWOOD, LTD.
25677 BURCAM CAPITAL II, L.L.C.
26011 BRISTOL GROUP, L.L.C.
00000 XXXXX XXXX XXXXXX, LLC
28107 MARIETTA-CANTON INVESTMENTS, L.L.C.
28125 XXXXXXXX-XXXXXX XXXXXXXXXXX, X.X.X.
00000 OMD, LLC
00000 XXXXXXXXX XXXXX ASSOCIATES, LLC
741005 VICTORY BERRYLAND, L.L.C. AND PALM BAY INVESTORS, LLC
30878 RIVER ROOT PARTNERS, LLC
31779 CHEROKEE MAIN STREET, LLC
31806 CHEROKEE MAIN STREET, LLC
725513 STHQ REALTY LLC
726299 PECOS TERRACE II, A CALIFORNIA LIMITED PARTNERSHIP
735032 BANGOR PLAZA ASSOCIATES
735067 BANGOR PLAZA ASSOCIATES
737550 RIVER OAKS ASSOCIATES, LLC
798358 RIVER OAKS ASSOCIATES, LLC
744466 CORNERSTONE REALTY INVESTMENTS, LLC
744980 6100 ASSOCIATES, L.L.C.
745158 6100 ASSOCIATES, L.L.C.
749325 CPRE-1 END GREENLAWN II, L.P.
749488 CPRE-1 END XXXXXXXXX XX, X.X.
000000 XXX XXX ASSOCIATES, L.P.
750348 NEW ROC ASSOCIATES, L.P.
786621 MEDICAL PARK THREE LIMITED PARTNERSHIP
786668 MEDICAL PARK THREE LIMITED PARTNERSHIP
000000 XXXXX XXXXXX II, LLC
787693 ARBOR SQUARE II, LLC
24732 SOVEREIGN REALTY ASSOCIATES LIMITED
608074 PSS WALNUT, LLC AND PSS PACIFIC BEA
634980 SYCAMORE MINERAL SPRINGS LLC
681886 MAGNOLIA SMITHRIDGE, L.L.C.
704013 MAD 660, LLC
704014 MAD 660, LLC
704066 JDI XXXXXX CITY LIMITED PARTNERSHIP
798421 0000 X XXXXXX XXXXXXXXX, X.X.X.
000000 MPM PROPERTIES, LLC
726839 CASTLE DAVIES LLC AND 841 XXXXXX, LLC
726987 CASTLE DAVIES LLC AND 841 XXXXXX, LLC
728309 NORTH/HALSTED, LLC
733018 THE 000 XXXXXXXXXXX XXXXXX CORPORATION
733226 SELF STORAGE INVESTORS, LLC
733263 SELF STORAGE INVESTORS, LLC
734667 COVENTRY COMMONS, LLC
737059 ORION DEVELOPMENT RA XXXI, LLC
737816 SABRE PARK ASSOCS, LLC
738507 WILLOW CREEK TOWN CENTER, LLC & WILLOW CREEK TOWN CENTER A, LLC
000000 XXXXX XXXXXX XXXXXXXX XXXXXX, X.X., X XXXXX XXXXXXXX LIMITED PARTNERSHIP
000000 XXXXX XXXXXX XXXXXXXX XXXXXX, X.X., X XXXXX XXXXXXXX LIMITED PARTNERSHIP
744849 STONERIDGE MOBILE HOME PARK, A CALIFORNIA LIMITED PARTNERSHIP
746147 000 XXXXXXXXX XX XXX XXXX, LLC
748662 000 XXXXXXX XXXXXXXX LP
749860 XXXXXX XXXXXX MARKETPLACE, LLC
750452 PENINSULAR HOSPITALITY INC.
751303 CERRITOS BEST PLAZA, LLC
751450 HD CELEBRATION, LLC
000000 XXXX XXXXX XXXXX, X.X.X.
000000 XXXX XXXXX XXXXX, X.X.X.
000000 XXX XXXX XXXXX, X.X.X.
000000 DUNHILL XXXXXX, LTD., A TEXAS LIMITED PARTNERSHIP
786188 DUNHILL XXXXXX, LTD., A TEXAS LIMITED PARTNERSHIP
000000 XXXX XXXXXX XXXX PARTNERS, LLC, AND MLANTZ, LLC
787174 00-00 XXXX XXXXXXX, LLC
787223 22 WEST XXXXXXX, LLC
787520 XXXXXX FIRST PHASE, LTD.
787622 HAINES FIRST PHASE, LTD.
787864 CHESTERFIELD SQUARE, LLC
788177 DM CRESCENT, LLC; MB ALAMEDA, LLC; MB 1031, LLC; MB PIER, LLC; MB 801, LLC; SM C
000000 XXX XXXXXX XXXXX, X.X.X.
000000 FORESTCOVE, L.L.C.
789197 STONESTREET DEVELOPMENT, LLC
796841 LOUISVILLE TROPHY LLC
796880 LOUISVILLE TROPHY LLC
789971 MARKET CITY (DELAWARE) LLC
790107 ROLLING VALLEY MALL LLC
790230 SEVERANCE SPE FEECO, L.L.C.
790462 XXXXXXX X. XXXXXXX AND STRATFORD X. XXXXXXX
790539 BPG INDUSTRIAL PARTNERS III, L.P.
790596 GREENSBORO CENTER LIMITED PARTNERSHIP
791070 HOLLYWOOD ACQUISITION, LLC
791358 BAYSIDE CLUB HOTEL LLC
791376 BAYSIDE CLUB HOTEL LLC
791494 RIBEIRO-CALIFORNIA, LLC
791501 RIBEIRO-CALIFORNIA, LLC
791923 ABA INVESTMENTS, LLC
791990 ABA INVESTMENTS, LLC
000000 XXXXXXX XXXXXX, X.X.X.
000000 0000 XXXXXXXXXX XXXXXX, LLC
798346 0000 XXXXXXXXXX XXXXXX, LLC
797434 LEASEHOLD CAPITAL-BRISTOL, LLC
797436 LEASEHOLD CAPITAL-BRISTOL, LLC
-----------------------------------------------------------------------------------------------
Doc Key Loan Amount Closed Rate Maturity
-----------------------------------------------------------------------------------------------
797125 $ 42,500,000.00 3/12/04 3.46 3/1/09
797258 $ 45,000,000.00 3/9/04 3/1/09
798611 $ 45,000,000.00 9/8/03
798616 $ 45,000,000.00 9/8/03
798637 $ 50,000,000.00 8/1/03
798641 $ 50,000,000.00 8/1/03
798652 $ 28,250,000.00 8/21/03
798662 $ 28,250,000.00 8/21/03
24435 $2,900,000.00 7/31/03 4.45 8/1/13
24441 $2,900,000.00 7/31/03 4.45 8/1/13
24814 $ 14,700,000.00 8/12/03 6.33 9/1/13
24943 $ 14,400,000.00 8/15/03 6.04 9/1/13
24960 $ 14,400,000.00 8/15/03 6.04 9/1/13
24952 $ 14,400,000.00 8/15/03 6.04 9/1/13
25677 $ 12,982,900.00 9/4/03 6.31 10/1/13
26011 $ 11,750,000.00 9/15/03 6.11 10/1/13
31308 $3,750,000.00 9/25/03 5.93 10/1/13
28107 $5,100,000.00 5.83 10/1/13
28125 $5,100,000.00 5.83 10/1/13
28283 $3,500,000.00 10/2/03 4.85 11/1/13
28479 $5,850,000.00
741005 $3,500,000.00 10/23/03 5.93 11/1/13
30878 $ 26,300,000.00 11/10/03 4.89 11/1/13
31779 $ 11,500,000.00 11/21/03 5.28 12/1/13
31806 $ 11,500,000.00 11/21/03 5.28 12/1/13
725513 $ 36,000,000.00 12/10/03 5.6 1/1/14
726299 $4,450,000.00 12/16/03 5.74 1/1/13
735032 $5,200,000.00 1/22/04 5.39 2/1/19
735067 $5,200,000.00 1/22/04 5.39 2/1/19
737550 $3,200,000.00 1/29/04 5.72 2/1/14
798358 $3,200,000.00 1/29/04 5.72 2/1/14
744466 $5,300,000.00 2/23/04 5.15 3/1/14
744980 $5,740,000.00 2/25/04 5.48 3/1/14
745158 $5,740,000.00 2/25/04 5.48 3/1/14
749325 $4,875,000.00 3/5/04 5.57 4/1/12
749488 $4,875,000.00 3/5/04 5.57 4/1/12
750282 $ 66,000,000.00 3/9/04 5.58 4/1/14
750348 $ 66,000,000.00 3/9/04 5.58 4/1/14
786621 $8,700,000.00 3/25/04 5.55 4/1/14
786668 $8,700,000.00 3/25/04 5.55 4/1/14
787590 $5,000,000.00 3/31/04 5.5 4/1/14
787693 $5,000,000.00 3/31/04 5.5 4/1/14
24732 $ 19,350,000.00 8/7/03 6.09 9/1/13
608074 $ 23,500,000.00 1/16/03 0
634980 $ 15,000,000.00 5/4/04 8.42 5/1/13
681886 $4,175,000.00 9/11/03 6.43 10/1/13
704013 $120,000,000.00 4/20/04 7.2 12/1/13
704014 $120,000,000.00 4/20/04 7.2 12/1/13
704066 $6,300,000.00 11/21/03 6.69 12/1/13
798421 $ 12,371,875.00 12/10/03 5.578
726574 $4,500,000.00 12/19/03 5.76 1/1/14
726839 $ 49,000,000.00 12/19/03 6.72 1/1/09
726987 $ 49,000,000.00 12/19/03 6.72 1/1/09
728309 $ 22,250,000.00 12/31/03
733018 $6,000,000.00 12/16/04 5.95 2/1/14
733226 $4,225,000.00 1/15/04 5.611 2/1/14
733263 $4,225,000.00 1/15/04 5.611 2/1/14
734667 $ 11,200,000.00 1/26/04 5.85 2/1/14
737059 $2,650,000.00 2/3/04 6.53 3/1/14
737816 $6,200,000.00 2/5/04 5.314 3/1/11
738507 $8,000,000.00 2/4/04 5.455 3/1/14
740070 $ 11,850,000.00 2/17/04
740105 $ 11,850,000.00 2/17/04
744849 $ 10,725,000.00 2/24/04 5.505 3/1/14
746147 $ 20,000,000.00 2/26/04 2/1/14
748662 $149,500,000.00 5/12/04 5.496733333 4/1/14
749860 $ 16,900,000.00 3/9/04 5.383 3/1/11
750452 $9,000,000.00 6.5 4/1/14
751303 $ 45,000,000.00 3/17/04 5.4 4/1/14
751450 $9,200,000.00 3/22/04 5 4/1/09
751530 $4,655,000.00 3/19/04 5.44 4/1/14
751524 $4,655,000.00 3/19/04 5.44 4/1/14
798533 $3,840,000.00 3/24/04 5.37 4/1/14
786177 $ 15,000,000.00 3/31/04 6.05 5/1/14
786188 $ 15,000,000.00 3/31/04 6.05 5/1/14
786732 $6,700,000.00 3/26/04 5.37 4/1/14
787174 $4,450,000.00 4/2/04 5.75 5/1/14
787223 $1,800,000.00 4/2/04 5.75 5/1/14
787520 $6,800,000.00 4/4/04 5.13 5/1/14
787622 $6,800,000.00 4/4/04 5.13 5/1/14
787864 $ 24,000,000.00 3/31/04 5.57 3/1/14
788177 $ 77,000,000.00 4/2/04 5.591 5/1/11
788053 $4,800,000.00 4/6/04 5.37 5/1/14
789071 $ 10,400,000.00 4/8/04 5.3 5/1/14
789197 $7,100,000.00 4/1/04 6 5/1/14
796841 $108,550,000.00 4/27/04 6.415 4/1/14
796880 $108,550,000.00 4/27/04 6.415 4/1/14
789971 $ 11,100,000.00 4/8/04 6.07 5/1/14
790107 $ 28,000,000.00 4/12/04 5.43 5/1/14
790230 $ 43,000,000.00 3/31/04 5.146 4/1/14
790462 $3,000,000.00 3/31/04 4.13
790539 $ 11,500,000.00 4/7/04 5.62 5/1/14
790596 $ 89,000,000.00 4/9/04 5/1/14
791070 $4,200,000.00 4/15/04 6.722 5/1/14
791358 $ 11,750,000.00 4/20/04 6.58 5/1/09
791376 $ 11,750,000.00 4/20/04 6.58 5/1/09
791494 $2,950,000.00 4/20/04 6.05 5/1/14
791501 $2,950,000.00 4/20/04 6.05 5/1/14
791923 $4,650,000.00 4/20/04 5.28 5/1/14
791990 $4,650,000.00 4/20/04 5.28 5/1/14
792704 $6,500,000.00 4/22/04 5.7 5/1/14
796621 $ 21,800,000.00 4/29/04 5.896 4/1/11
798346 $ 21,800,000.00 4/29/04 5.896 4/1/11
797434 $ 11,100,000.00 4/30/04 6.428 5/1/14
797436 $ 11,100,000.00 4/30/04 6.428 5/1/14
--------------------------------------------------------------------------------------------------------------
Doc Key File Name Property Address
--------------------------------------------------------------------------------------------------------------
797125 DEERBROOK MALL 00000 XX XXXXXXX 00 X.
000000 XXXXXXXXX MALL 00000 XXXXXXXXX XXXXXXXXX
798611 5 HOUSTON CENTER 0000 XXXXXXXX XXXXXX
798616 5 HOUSTON CENTER 0000 XXXXXXXX XXXXXX
798637 DDR PORTFOLIO
798641 DDR PORTFOLIO
798652 WATER TOWER PLACE 000 XXXXX XXXXXXXX XXXXXX
000000 WATER TOWER PLACE 000 XXXXX XXXXXXXX XXXXXX
00000 SHOPPES AT NORTH AUGUSTA 1215-57 XXXX
24441 SHOPPES AT NORTH AUGUSTA 1215-57 XXXX
24814 VETERANS AMC THEATER 9302 XXXXXXXX
24943 THE RESERVE AT DEERWOOD 7632 SOUTHSID
24960 THE RESERVE AT DEERWOOD 7632 SOUTHSID
24952 THE RESERVE AT DEERWOOD 7632 SOUTHSID
25677 000 XXXXXXXX XXXXXX 510 GLENWOOD
26011 SUNRISE MESA MOBLIE HOME PARK 000 X. XXXXXX
00000 XXXXX XXXX CENTER 8671 & 0000 Xxxxx Xxxx.
00000 XXXXXXXX PROFESSIONAL CENTER 000 XXXXXX XXXX
00000 XXXXXXXX PROFESSIONAL CENTER 000 XXXXXX XXXX
00000 XXXXXXXXXX PORTFOLIO
00000 XXXXXXXXX XXXXX SHOPPING CENTER 0000 0XX XXX XX
000000 XXXXXXXXX SHOPPING CENTER 000 XXXXXXXXX XXX
00000 XXXXXXXXX XXXXXX XXXXXXX XXXXXXX 00
00000 XXXX XXXXXX SHOPPING CENTER 600 CHEROKEE PLACE
00000 XXXX XXXXXX XXXXXXXX XXXXXX 000 XXXXXXXX XXXXX
000000 XXXXX CORPORATION 000 XXXX XXXXX XXXX
726299 PECOS TERRACE II 0000 XXXX XXXX XXXX XXXX
000000 XXXXXX PLAZA 0000 XXXX XXXXXX XXXXX
000000 XXXXXX PLAZA 0000 XXXX XXXXXX XXXXX
000000 XXXXX XXXX XXXXXXX 000-000 XXXXX XXXX XXXXX
798358 RIVER OAKS LANDING 000-000 XXXXX XXXX XXXXX
744466 SCRIPPS RANCH TECHNOLOGY CENTER 10640 -10660 SCRIPPS RANCH XXXX.
000000 XXXXXXXXX XXX 0000 XXXXXXXXX XXXX.
745158 CITIPLACE III 0000 XXXXXXXXX XXXX.
749325 GREENLAWN CROSSING II 000 XXXXX XXXXX XXXX.
749488 GREENLAWN CROSSING II 000 XXXXX XXXXX XXXX.
000000 XXX XXX XXXX 00 XXXXXXX XXXXX
000000 XXX XXX XXXX 00 XXXXXXX XXXXX
000000 XXXXXXXX MEDICAL PARK THREE 3330 MEDICAL PARK RD.
786668 RICHLAND MEDICAL PARK THREE 0000 XXXXXXX XXXX XX.
000000 XXXXX XXXXXX SHOPPING CENTER 0000-0000 XXXXX XXXXXX XXXXX
787693 ARBOR SQUARE SHOPPING CENTER 0000-0000 XXXXX XXXXXX XXXXX
24732 SOVEREIGN APARTMENTS 1440 BEACON
608074 PRICE SELF STORAGE PRICE SELF ST
634980 SYCAMORE MINERAL SPRINGS RESORT 1215 XXXXX BEACH DRIVE
681886 000 XXXXXXXXXX XXXXX 000-000 XXXXXXXXXX XXXXX
704013 000 XXXXXXX XXXXXX 000 XXXXXXX XXXXXX
000000 000 XXXXXXX XXXXXX 000 XXXXXXX XXXXXX
000000 XXXXXXX INN XXXXXX XXXX 000 XXXXXXXX XXXXXX
798421 0000 X XXXXXX 0000 X XXXXXX, XX
000000 ROCKEFELLER INDUSTRIES 0000 -0000 XXXXXXXXXXX XXXXX
726839 DAVIES PACIFIC CENTER 000 XXXXXX XXXXXX
000000 XXXXXX PACIFIC CENTER 000 XXXXXX XXXXXX
000000 XXXXXXX XXXX XXXXXX 000 XXXX XXXXX XXXXXX
000000 XXXXXXXX XXXXXXXX XXXX VARIOUS
733226 ARROWHEAD SELF STORAGE 00000 XXXXXXX 00
000000 XXXXXXXXX SELF STORAGE 26677 HIGHWAY 18
734667 COVENTRY COMMONS 00000 XXX XXXX
000000 XXXXXXXXX ECKERD 000-000 XXXXX XXXX XXXXXX
737816 SABRE PARK MHC 0000 XXXXXXX XXXXXX XXXX
738507 WILLOW CREEK SHOPPING CENTER 0000-0000 XXXX XXXXXXX XXXXXX
740070 TOWNE SQUARE SHOPPING CENTER SEC X. XXXXXX & XXXX ROAD
740105 TOWNE SQUARE SHOPPING CENTER SEC X. XXXXXX & XXXX ROAD
744849 TOWNE CENTRE PLAZA 2701, 2705, 0000 XXXXX XXXXXXXX XXXXX
746147 XXXXXXXXX XXXXXX XXXXXX 000 XXXXXXXXX XXXX
000000 000 XXXXXX XXXXXX 000 0XX XXXXXX
000000 XXXXXX MARKETPLACE 1720-1778 XXXX XXXXX XXXXXX
000000 XXXXXXXX XXXX XXXXXX-XXX FRANCISCO 000 XXXXX XXXXXXX XXXX
000000 BEST PLAZA 11101-11263 000XX XXXXXX
751450 CELEBRATION AT SIX FORKS 7339 SIX FORKS ROAD
751530 HIDDEN VALLEY VILLAGE 1101-1161 HIDDEN XXXXXX XXXXXXX XXXXXXX
000000 XXXXXX XXXXXX XXXXXXX 1101-1161 HIDDEN VALLEY VILLAGE PARKWAY
798533 TWIN LAKES RV 0000 XXXXXX XXXX
786177 XXXXXXXX XXXXXX SHOPPING CENTER 6570-6780 XXXXXX ROAD
786188 XXXXXXXX XXXXXX SHOPPING CENTER 6570-6780 XXXXXX ROAD
786732 XXXXXXXXXXX XXXXXXXXX 00000 & 00000 XXXX XXXXXXXXX
787174 00-00 XXXX XXXXXXX 00-00 XXXX XXXXXXX
787223 00 XXXX XXXXXXX 00 XXXX XXXXXXX
000000 XXXXX APARTMENTS 0000 XXXXX XXXXX
000000 XXXXX APARTMENTS 0000 XXXXX XXXXX
000000 XXXXXXXXXXXX XXXXXX
788177 801 XXXXXXXX TOWER 000 XXXXX XXXXXXXX XX.
000000 XXXXXX XXXXX RV 000 XXXXX XXXX
789071 FOREST COVE XXXXXX 0000-0000 XXXXXX XXXX
789197 NEIMAN MARCUS STORE AT FASHION VALLEY NEIMAN MARCUS
796841 AEGON CENTER 000 X. XXXXXX XXXXXX
000000 XXXXX XXXXXX 000 X. XXXXXX XXXXXX
000000 XXXXXX XXXX SHOPPING CENTER 2929 KAPIOLANI BOULEVARD
790107 ROLLING VALLEY MALL 0000-00 XXX XXXXX XXXX XXXX
000000 XXXXXXXXX TOWN CENTER 0000 XXXXXXXX XXXX
790462 000 XXXXXXXXX XXXXXX(XXXXXX LEASE) 000 XXXXXXXXX XXXXXX
000000 XXXXXXX XXXXXXXX XXXX 0 XXXXXXX XXXXXXX
000000 XXXXXXXXXX CORPORATE CENTER 0000 XXXXXXXXXX XXXXX
000000 XXXXXXXXX CENTER 000 XXXXX XXXXX XXXX 0
000000 XXXXXXXXXX XXXX XXXXXX XXXXXXX 000 XXXXX XXXXXX XXXXXX
791376 DOUBLETREE CLUB BOSTON BAYSIDE 000 XXXXX XXXXXX XXXXXX
791494 QUAIL PARK AT EL DORADO HILLS 1200 & 0000 XXXXXXX XXXX
791501 QUAIL PARK AT EL DORADO HILLS 1200 & 0000 XXXXXXX XXXX
000000 XXXX XXXXX XXXXX 0-00 XXXX XXXXX XXXXXX
000000 XXXX XXXXX PLAZA 0-00 XXXX XXXXX XXXXXX
000000 XXX XXXXXXX SQUARE 00000 XXXXXXX XXXX
796621 0000 XXXXXXXXXX XXXXXX 0000 XXXXXXXXXX XXXXXX
798346 0000 XXXXXXXXXX XXXXXX 0000 XXXXXXXXXX XXXXXX
797434 STOP & SHOP BRISTOL 000 XXXXXXXXXX XXXXXX (XXXXX 6)
797436 STOP & SHOP BRISTOL 000 XXXXXXXXXX XXXXXX (XXXXX 6)
-----------------------------------------------------------------------------------------------------------------------
Xxx Xxx Xxxxxxx 0 Xxxxxxxx Xxxx Xx. Xxx Law Firm
-----------------------------------------------------------------------------------------------------------------------
797125 XXXXXX XX 00000 CLEARY, GOTTLIEB, XXXXX & XXXXXXXX
797258 XXXXXXX XX 00000 CLEARY, GOTTLIEB, XXXXX & XXXXXXXX
798611 HOUSTON TX 77010
798616 HOUSTON TX 77010
798637 0
798641 0
798652 CHICAGO IL 60601
798662 XXXXXXX XX 00000
24435 XXXXX XXXXXXX XX 00000 XXXXX XXXXXXXX
24441 XXXXX XXXXXXX XX 00000 XXXXX XXXXXXXX
24814 XXXXX XX 00000 XXXXX XXXXXXXX
24943 XXXXXXXXXXXX XX 00000 XXXXX XXXXXXXX
24960 XXXXXXXXXXXX XX 00000 XXXXX XXXXXXXX
24952 XXXXXXXXXXXX XX 00000 XXXXX XXXXXXXX
25677 XXXXXXX XX 00000 XXXXX XXXXXXXX
00000 XXXXXX XXXXXXXX XX XXXX & ASSOCIATES
31308 XXXXXXXX XXXXXXX XX 00000 XXXX & ASSOCIATES, P.C.
28107 XXXXXXXX XX 00000 XXXXX XXXXXXXX
28125 XXXXXXXX XX 00000 XXXXX XXXXXXXX
28283 0 XXXXX XXXXXXXX
28479 XXXXXXX XX 00000 XXXXX XXXXXXXX
741005 PONCHATOULA 0 70454 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
00000 XXXXXXXXX XXXXX XXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
31779 XXXXXXXXXXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
31806 XXXXXXXXXXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
725513 XXXXXXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
726299 XXX XXXXX XX 00000 XXXX & ASSOCIATES, P.C.
735032 PEN XXXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
735067 PEN XXXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
737550 XXXXXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
798358 XXXXXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
744466 SAN DIEGO CA XXXX & ASSOCIATES, P.C.
744980 XXXXX XXXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
745158 XXXXX XXXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
000000 XXXXX XXXX XX XXXX & ASSOCIATES, P.C.
000000 XXXXX XXXX XX XXXX & ASSOCIATES, P.C.
750282 XXX XXXXXXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
750348 XXX XXXXXXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
786621 XXXXXXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
786668 XXXXXXXX XX 00000 KROLL, MCNAMARA, XXXXX & XXXXXXXXX, LLP
787590 XXXXXXXXXX XX 00000 XXXX & ASSOCIATES, P.C.
787693 XXXXXXXXXX XX 00000 XXXX & ASSOCIATES, P.C.
24732 XXXXXXXXX XX 00000 XXXXX XXXXXXXX
608074 SAN DIEGO CA XXXX XXXXXXX
000000 XXX XXXX XXXXXX XX 00000 XXXX XXXXXXX
681886 XXXX XX 00000 XXXXX XXXXXXX
704013 XXX XXXX XX 00000 XXXX XXXXXXX
704014 XXX XXXX XX 00000 XXXX XXXXXXX
704066 XXXXXX XXXX XX 00000 XXXXXX XXXXXX & XXXXX
798421 XXXXXXXXXX XX 00000 XXXX XXXXXXX
726574 CERES CA 95307
726839 XXXXXXXX XX 00000 XXXX XXXXXXX
726987 XXXXXXXX XX 00000 XXXX XXXXXXX
728309 XXXXXXX XX 00000 XXXXXX XXXXXX XXXXX XXXXXXXX
733018 NORWALK CT 06853 WINSTON & XXXXXX LLP
000000 XXX XXXXXX XX 00000 XXXXX XXXXXXX LOCK XXXXXX & XXXXXXX LLP
000000 XXX XXXXXX XX 00000 XXXXX XXXXXXX LOCK XXXXXX & XXXXXXX LLP
734667 CANTON MI 48187 XXXXXX XXXXXX XXXXX XXXXXXXX
737059 XXXXXXXXX XX 00000 XXXXXX XXXXX & BOCKIUS
737816 XXXXXX XX 00000 XXXX XXXXXXX
738507 XXXXXX XX 00000 SIDLEY & AUSTIN
740070 PLANO TX 75075 XXXXXX XXXXXX XXXXX XXXXXXXX
740105 PLANO TX 75075 XXXXXX XXXXXX XXXXX XXXXXXXX
744849 XXXXXXXX XX 00000 SIDLEY & AUSTIN
000000 XXXXX XXXXXX XX 00000 XXXX XXXXXXX
748662 XXX XXXX XX 00000 XXXX XXXXXXX
749860 MERCED CA 95348 KAYE SCHOLER
750452 SAN FRANCISCO CA 94080 WINSTON & STRAWN
751303 17970 STUDEBAKER ROAD CERRITOS CA ALLEN MATKINS
751450 RALEIGH NC 27615 WINSTEAD SECHREST
751530 NORCO CA 92860 ALLEN MATKINS LOCK GAMBLE & MALLORY LLP
751524 NORCO CA 92860 ALLEN MATKINS LOCK GAMBLE & MALLORY LLP
798533 CHOCOWINITY NC 27817 SIDLEY AUSTIN BROWN & WOOD LLP
786177 DALLAS TX 75231 KATTEN MUCHIN ZAVIS ROSENMAN
786188 DALLAS TX 75231 KATTEN MUCHIN ZAVIS ROSENMAN
786732 VICTORVILLE CA 92392 ALLEN MATKINS LOCK GAMBLE & MALLORY LLP
787174 CHICAGO IL 60661 KATTEN MUCHIN ZAVIS ROSENMAN
787223 CHICAGO IL 60661 KATTEN MUCHIN ZAVIS ROSENMAN
787520 HARLINGEN TX 78550 SONNENSCHEIN NATH & ROSEN
787622 HARLINGEN TX 78550 SONNENSCHEIN NATH & ROSEN
787864 LOS ANGELES CA KAYE SCHOLER
788177 LOS ANGELES CA 90017 KAYE SCHOLER
788053 NEW HOLLAND PA 17557 SIDLEY AUSTIN BROWN & WOOD LLP
789071 ANN ARBOR MI 48103 KATTEN MUCHIN ZAVIS ROSENMAN
789197 FASHION VALLEY MALL SAN DIEGO CA KAYE SCHOLER
796841 LOUISVILLE KY 40202 KAYE SCHOLER
796880 LOUISVILLE KY 40202 KAYE SCHOLER
789971 HONOLULU HI 96825 BROWNSTEIN HYATT FARBER
790107 BURKE VA 22015 KAYE SCHOLER
790230 CLEVELAND HEIGHTS OH 44118 KAYE SCHOLER
790462 NEW YORK NY 10022 WINSTON & STRAWN
790539 BOOTHWYN PA 19061 KAYE SCHOLER
790596 MCLEAN VA 22102 KAYE SCHOLER
791070 HOLLYWOOD FL 33021 WINSTON & STRAWN
791358 BOSTON MA 02125 KATTEN MUCHIN ZAVIS ROSENMAN
791376 BOSTON MA 02125 KATTEN MUCHIN ZAVIS ROSENMAN
791494 EL DORADO HILLS CA 95762 MORGAN LEWIS & BOCKIUS
791501 EL DORADO HILLS CA 95762 MORGAN LEWIS & BOCKIUS
791923 WOODLAND CA 95695 ALLEN MATKINS LOCK GAMBLE & MALLORY LLP
791990 WOODLAND CA 95695 ALLEN MATKINS LOCK GAMBLE & MALLORY LLP
792704 ASHBURN VA 20147 WINSTON & STRAWN
796621 SAN FRANCISCO CA KAYE SCHOLER
798346 SAN FRANCISCO CA KAYE SCHOLER
797434 BRISTOL CT KAYE SCHOLER
797436 BRISTOL CT KAYE SCHOLER
------------------------------------------------------------------------------------------------------------------
Doc Key Holder Control Num. Client Ref. Num Contributor Mers
------------------------------------------------------------------------------------------------------------------
797125 8 09-1001115
797258 5 09-1001114
798611 18 01-1001101
798616 18 01-1001101
798637 16 09-1001093 GOLDMAN
798641 16 09-1001093 GOLDMAN
798652 14 09-1001099 GOLDMAN
798662 14 09-1001099 GOLDMAN
24435 116 9-0001765
24441 116 9-0001765
24814 42 9-0001772
24943 43 9-0001789
24960 43 9-0001789
24952 43 9-0001789
25677 44 9-0001780
26011 50 9-0001809
31308 104 09-0001811
28107 88 09-0001812
28125 88 09-0001812
28283 GOLDMAN SACHS MORTGAGE COMPANY 107 09-0001819
28479 GOLDMAN SACHS MORTGAGE COMPANY 82 09-0001818
741005 108
30878 26 09-0001773
31779 GOLDMAN SACHS MORTGAGE COMPANY 54 09-0001817
31806 GOLDMAN SACHS MORTGAGE COMPANY 54 09-0001817
725513 GOLDMAN SACHS MORTGAGE COMPANY 22 09-0001841
726299 GOLDMAN SACHS MORTGAGE COMPANY 96 09-0001850
735032 GOLDMAN SACHS MORTGAGE COMPANY 87 09-0001861
735067 GOLDMAN SACHS MORTGAGE COMPANY 87 09-0001861
737550 GOLDMAN SACHS MORTGAGE COMPANY 110 09-0001847
798358 GOLDMAN SACHS MORTGAGE COMPANY 110 09-0001847
744466 86 09-0001863
744980 84 09-0001871
745158 84 09-0001871
749325 90 09-0001880
749488 90 09-0001880
750282 13 09-0001870
750348 13 09-0001870
786621 66 09-0001878
786668 66 09-0001878
787590 89 09-0001903
787693 89 09-0001903
24732 36 9-0001791
608074 30 3-0812883
634980 41 3-0812895
681886 100 3-0812929
704013 3 3-0812564
704014 3 3-0812564
704066 78 3-0812251
798421 46
726574 CHASE MANHATTAN BANK 95 03-0812966
726839 15 03-0812964 GREENWICH
726987 15 03-0812964 GREENWICH
728309 31 03-0584
733018 81 03-0754
733226 97 03-0812961
733263 97 03-0812961
734667 55 03-0834
737059 118 400067
737816 79 03-0815522
738507 67 03-0812970
740070 48 03-0716
740105 48 03-0716
744849 58 03-0812974
746147 35 03-0945
748662 2 03-0812569 GREENWICH
749860 37
750452 65 03-0968
751303 19 03-0812975
751450 63 03-0832
751530 93 03-0828
751524 93 03-0828
798533 103 04-0143
786177 40 04-0168
786188 40 04-0168
786732 74 03-0812965
787174 76 03-0082
787223 77 03-0413
787520 71 03-0133
787622 71 03-0133
787864 29 03-0944
788177 10
788053 91 04-0144
789071 59 03-0560
789197 69 04-0267
796841 4
796880 4
789971 57 04-0212
790107 25 04-0047
790230 20 04-0025
790462 113 04-0263
790539 52 04-0258
790596 6 03-0924
791070 98 03-0901
791358 49 03-0302
791376 49 03-0302
791494 115 400070
791501 115 400070
791923 92 03-08102945
791990 92 03-08102945
792704 75 04-0167
796621 32 04-0026
798346 32 04-0026
797434 56 03-0812573
797436 56 03-0812573
SCHEDULE III
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
NONE
SCHEDULE IV
CLASS XP REFERENCE RATE SCHEDULE
Interest Accrual Period Payment Date Class XP Reference Rate (%)
----------------------- ------------ ---------------------------
1 June 10, 2004 5.58230
2 July 10, 2004 5.40387
3 August 10, 2004 5.58266
4 September 10, 2004 5.58284
5 October 10, 2004 5.40441
6 November 10, 2004 5.58321
7 December 10, 2004 5.40477
8 January 10, 2005 5.40495
9 February 10, 2005 5.40514
10 March 10, 2005 5.40568
11 April 10, 2005 5.58415
12 May 10, 2005 5.40570
13 June 10, 2005 5.58453
14 July 10, 2005 5.40607
15 August 10, 2005 5.58491
16 September 10, 2005 5.58510
17 October 10, 2005 5.40664
18 November 10, 2005 5.58548
19 December 10, 2005 5.40701
20 January 10, 2006 5.40719
21 February 10, 2006 5.40737
22 March 10, 2006 5.40797
23 April 10, 2006 5.58641
24 May 10, 2006 5.40792
25 June 10, 2006 5.58678
26 July 10, 2006 5.40830
27 August 10, 2006 5.58710
28 September 10, 2006 5.58728
29 October 10, 2006 5.40877
30 November 10, 2006 5.58762
31 December 10, 2006 5.40911
32 January 10, 2007 5.40927
33 February 10, 2007 5.40944
34 March 10, 2007 5.41014
35 April 10, 2007 5.58842
36 May 10, 2007 5.40997
37 June 10, 2007 5.58888
38 July 10, 2007 5.41043
39 August 10, 2007 5.58935
40 September 10, 2007 5.58959
41 October 10, 2007 5.41114
42 November 10, 2007 5.59007
43 December 10, 2007 5.41161
44 January 10 2008 5.59055
45 February 10, 2008 5.41209
46 March 10, 2008 5.41253
47 April 10, 2008 5.61208
48 May 10, 2008 5.43302
49 June 10, 2008 5.61252
50 July 10, 2008 5.43346
51 August 10, 2008 5.61297
52 September 10, 2008 5.61320
53 October 10, 2008 5.43413
54 November 10, 2008 5.62396
55 December 10, 2008 5.44467
56 January 10, 2009 5.44491
57 February 10, 2009 5.42063
58 March 10, 2009 5.42152
59 April 10, 2009 5.75276
60 May 10, 2009 5.56524
61 June 10, 2009 5.75353
62 July 10, 2009 5.56537
63 August 10, 2009 5.75366
64 September 10, 2009 5.75373
65 October 10, 2009 5.56557
66 November 10, 2009 5.75386
67 December 10, 2009 5.56570
68 January 10, 2010 5.56575
69 February 10, 2010 5.56582
70 March 10, 2010 5.56664
71 April 10, 2010 5.75417
72 May 10, 2010 5.56600
73 June 10, 2010 5.75430
74 July 10, 2010 5.56613
75 August 10, 2010 5.79559
76 September 10, 2010 5.79566
77 October 10, 2010 5.62395
78 November 10, 2010 5.81410
79 December 10, 2010 5.62407
80 January 10, 2011 5.62413
81 February 10, 2011 5.62419
82 March 10, 2011 5.65478
83 April 10, 2011 5.93778
84 May 10, 2011 5.73854
SCHEDULE V
SCHEDULE OF INITIAL DIRECTING HOLDER FOR EACH LOAN GROUP
(as of May 13, 2004)
---------------- ---------------------- ---------------------------------------- -----------------------------
Mortgage Loan
Number Property Name Directing Holder Consulting Holder
---------------- ---------------------- ---------------------------------------- -----------------------------
2 111 Eighth Avenue Bayerische Landesbank (as holder of Greenwich Capital Financial
Note B-2) and TIAA as Class OEA-B Products, Inc. (as holder
Majority Holder of Note A1-B) and Morgan
Stanley Mortgage Capital
Inc. (as holder of Note
operating adviser: Allied Capital A2-A, Note A2-B, Note A2-C,
Corporation Note A2-D and Note A2-E)
---------------- ---------------------- ---------------------------------------- -----------------------------
3 660 Madison Avenue Greenwich Capital Financial
Controlling Class Directing Holder Products, Inc. (as holder
of Note B)
---------------- ---------------------- ---------------------------------------- -----------------------------
7 Wells Fargo Tower Each of (i) the holder of
certificates representing a
majority interest in a
designated controlling
class of the Greenwich
Capital Commercial Funding
Corp., as depositor,
Commercial Mortgage Trust
2003-C2, (ii) the holder of
certificates representing a
majority interest in a
designated controlling
class of the trust related
Controlling Class Directing Holder to the GMAC Commercial
Mortgage Securities Corp.,
Commercial Mortgage
Pass-Through Certificates,
Series 2003-C3 and (iii)
the holder of certificates
representing a majority
interest in a designated
controlling class of the
Morgan Stanley Capital I
Trust 2004-HQ3, Commercial
Mortgage Pass-Through
Certificates, Series HQ3
---------------- ---------------------- ---------------------------------------- -----------------------------
11 237 Park Avenue Each of (i) the holder of certificates N/A
representing a majority interest in a
designated controlling class of the
Greenwich Capital Commercial Funding
Corp., as depositor, Commercial
Mortgage Trust 2003-C2 (as holder of
Note A-1), (ii) the holder of
certificates representing a majority
interest in a designated controlling
class of the trust related to the GS
Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through
Certificates, Series 2004-C1 (as
holder of Note A-2), (iii) Greenwich
Capital Commercial Funding Corp., as
depositor, Commercial Mortgage Trust
2004-GG1 (as holder of Note A-3) and
(iv) Greenwich Capital Financial
Products, Inc. (as holder of Note A-4)
---------------- ---------------------- ---------------------------------------- -----------------------------
14 Water Tower Place Each of (i) the holder of certificates N/A
representing a majority interest in a
designated controlling class of the
trust related to the GMAC Commercial
Mortgage Securities Corp., Commercial
Mortgage Pass Through Certificates,
Series 2003-C3, (ii) the holder of the
certificates representing a majority
interest in a designated controlling
class of the trust related to the GS
Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through
Certificates, Series 2004-C1, and
(iii) the Controlling Class Directing
Holder.
---------------- ---------------------- ---------------------------------------- -----------------------------
15 Davies Pacific Center Greenwich Capital Financial
Controlling Class Directing Holder Products, Inc. (as holder
of Note B)
---------------- ---------------------- ---------------------------------------- -----------------------------
16 DDR Portfolio Each of (i) the holder of certificates N/A
representing a majority interest in a
designated controlling class of the
trust related to the GMAC Commercial
Mortgage Securities Corp., Commercial
Mortgage Pass Through Certificates,
Series 2003-C2, (ii) the holders of
certificates representing a majority
interest in a designated controlling
class of the trust related to the GS
Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through
Certificates, Series 2004-C1, and
(iii) the Controlling Class Directing
Holder.
---------------- ---------------------- ---------------------------------------- -----------------------------
18 5 Houston Center Each of (i) the holder of certificates N/A
representing a majority interest in a
designated controlling class of the
trust related to the GMAC Commercial
Mortgage Securities Corp., Commercial
Mortgage Pass Through Certificates,
Series 2003-C3 and (ii) Controlling
Class Directing Holder.
---------------- ---------------------- ---------------------------------------- -----------------------------
41 Sycamore Mineral Greenwich Capital Financial
Springs Resort Controlling Class Directing Holder Products, Inc. (as holder
of Note B)
---------------- ---------------------- ---------------------------------------- -----------------------------
44 510 Glenwood Controlling Class Directing Holder N/A
---------------- ---------------------- ---------------------------------------- -----------------------------
47 1801 K Street The holder of certificates Controlling Class Directing
representing a majority interest in a Holder
designated controlling class of the
Greenwich Capital Commercial Funding
Corp., as depositor, Commercial
Mortgage Trust 2003-C2
---------------- ---------------------- ---------------------------------------- -----------------------------
51 Sunrise Mesa MHP Controlling Class Directing Holder N/A
---------------- ---------------------- ---------------------------------------- -----------------------------
61 Mountain Lodge N/A
Apartments Controlling Class Directing Holder
---------------- ---------------------- ---------------------------------------- -----------------------------
65 Palisades I Office N/A
Building Controlling Class Directing Holder
---------------- ---------------------- ---------------------------------------- -----------------------------
109 Berryland Shopping N/A
Center Controlling Class Directing Holder
---------------- ---------------------- ---------------------------------------- -----------------------------
SCHEDULE VI
SUPPLEMENTAL SERVICER SCHEDULE
GCCFC 04-GG1 Loan ID Control_Number Loan ID Loan Name
1 09-1001116 09-1001116 885 Third Avenue
2 03-0768 03-0812569 111 Eighth Avenue
3 03-0720 03-0812564 660 Madison Avenue
4 04-0008 04-0008 Aegon Center
5 09-1001114 09-1001114 Southland Mall
6 03-0924 03-0924 Greensboro Corporate Center
7 28918 03-0812913 Wells Fargo Tower
8 09-1001115 09-1001115 Deerbrook Mall
9 03-0358 03-0812947 Glendale Center
10 03-0951 03-0812977 801 Figueroa Tower
11 03-0535 03-0812560 237 Park Avenue
12 28799 28799 180 North LaSalle
13 334381071 09-0001870 New Roc City
14 09-1001099B 09-1001099 Water Tower Place
15 03-0816 03-0812964 Davies Pacific Center
16 09-1001093C 09-1001093 DDR Portfolio
16.01 09-1001093C 09-1001093-A DDR Portfolio
16.02 09-1001093C 09-1001093-B DDR Portfolio
16.03 09-1001093C 09-1001093-C DDR Portfolio
16.04 09-1001093C 09-1001093-D DDR Portfolio
16.05 09-1001093C 09-1001093-E DDR Portfolio
16.06 09-1001093C 09-1001093-F DDR Portfolio
16.07 09-1001093C 09-1001093-G DDR Portfolio
16.08 09-1001093C 09-1001093-H DDR Portfolio
16.09 09-1001093C 09-1001093-I DDR Portfolio
16.10 09-1001093C 09-1001093-J DDR Portfolio
17 03-0499 03-0812244 Sealy Industrial Portfolio
17.01 03-0499 03-0812244 Sealy Industrial Portfolio
17.02 03-0499 03-0812244 Sealy Industrial Portfolio
17.03 03-0499 03-0812244 Sealy Industrial Portfolio
17.04 03-0499 03-0812244 Sealy Industrial Portfolio
17.05 03-0499 03-0812244 Sealy Industrial Portfolio
17.06 03-0499 03-0812244 Sealy Industrial Portfolio
17.07 03-0499 03-0812244 Sealy Industrial Portfolio
17.08 03-0499 03-0812244 Sealy Industrial Portfolio
17.09 03-0499 03-0812244 Sealy Industrial Portfolio
17.10 03-0499 03-0812244 Sealy Industrial Portfolio
17.11 03-0499 03-0812244 Sealy Industrial Portfolio
17.12 03-0499 03-0812244 Sealy Industrial Portfolio
17.13 03-0499 03-0812244 Sealy Industrial Portfolio
17.14 03-0499 03-0812244 Sealy Industrial Portfolio
18 01-1001101B 01-1001101 5 Houston Center
19 04-0014 03-0812975 Best Plaza
20 04-0025 04-0025 Severance Town Center
21 09-0001106 09-1001106 Rechler Industrial Portfolio IV (10-year)
21.01 09-0001106 09-1001106-F Rechler Industrial Portfolio IV (10-year)
21.02 09-0001106 09-1001106-B Rechler Industrial Portfolio IV (10-year)
21.03 09-0001106 09-1001106-P Rechler Industrial Portfolio IV (10-year)
21.04 09-0001106 09-1001106-S Rechler Industrial Portfolio IV (10-year)
21.05 09-0001106 09-1001106-I Rechler Industrial Portfolio IV (10-year)
21.06 09-0001106 09-1001106-D Rechler Industrial Portfolio IV (10-year)
21.07 09-0001106 09-1001106-A Rechler Industrial Portfolio IV (10-year)
21.08 09-0001106 09-1001106-O Rechler Industrial Portfolio IV (10-year)
21.09 09-0001106 09-1001106-C Rechler Industrial Portfolio IV (10-year)
21.10 09-0001106 09-1001106-E Rechler Industrial Portfolio IV (10-year)
21.11 09-0001106 09-1001106-Q Rechler Industrial Portfolio IV (10-year)
21.12 09-0001106 09-1001106-H Rechler Industrial Portfolio IV (10-year)
21.13 09-0001106 09-1001106-N Rechler Industrial Portfolio IV (10-year)
21.14 09-0001106 09-1001106-J Rechler Industrial Portfolio IV (10-year)
21.15 09-0001106 09-1001106-K Rechler Industrial Portfolio IV (10-year)
21.16 09-0001106 09-1001106-R Rechler Industrial Portfolio IV (10-year)
21.17 09-0001106 09-1001106-L Rechler Industrial Portfolio IV (10-year)
21.18 09-0001106 09-1001106-G Rechler Industrial Portfolio IV (10-year)
21.19 09-0001106 09-1001106-M Rechler Industrial Portfolio IV (10-year)
22 329620596 09-0001841 Xerox Corporate Headquarters
23 302073238 09-0001770 Bradley Fair Shopping Center
24 316293454 09-0001806 Rookwood Pavilion
25 04-0047 04-0047 Rolling Valley
26 311570127 09-0001773 Riverbend Centre
27 09-1001105 09-1001105 Rechler Industrial Portfolio III (8.5-year)
27.01 09-1001105 09-1001105-L Rechler Industrial Portfolio III (8.5-year)
27.02 09-1001105 09-1001105-D Rechler Industrial Portfolio III (8.5-year)
27.03 09-1001105 09-1001105-I Rechler Industrial Portfolio III (8.5-year)
27.04 09-1001105 09-1001105-O Rechler Industrial Portfolio III (8.5-year)
27.05 09-1001105 09-1001105-H Rechler Industrial Portfolio III (8.5-year)
27.06 09-1001105 09-1001105-C Rechler Industrial Portfolio III (8.5-year)
27.07 09-1001105 09-1001105-A Rechler Industrial Portfolio III (8.5-year)
27.08 09-1001105 09-1001105-M Rechler Industrial Portfolio III (8.5-year)
27.09 09-1001105 09-1001105-B Rechler Industrial Portfolio III (8.5-year)
27.10 09-1001105 09-1001105-J Rechler Industrial Portfolio III (8.5-year)
27.11 09-1001105 09-1001105-K Rechler Industrial Portfolio III (8.5-year)
27.12 09-1001105 09-1001105-F Rechler Industrial Portfolio III (8.5-year)
27.13 09-1001105 09-1001105-N Rechler Industrial Portfolio III (8.5-year)
27.14 09-1001105 09-1001105-G Rechler Industrial Portfolio III (8.5-year)
27.15 09-1001105 09-1001105-E Rechler Industrial Portfolio III (8.5-year)
28 324840940 09-0001864 Burlington Office Center
29 03-0467 03-0812978 Chesterfield Square
30 03-0944 03-0812968 Price Self Storage - Pacific Beach/ Walnut Creek
30.01 03-0944 03-0812968 Price Self Storage - Pacific Beach/ Walnut Creek
30.02 03-0944 03-0812968 Price Self Storage - Pacific Beach/ Walnut Creek
31 03-0584 03-0584 Lincoln Park Centre
32 04-0026 04-0026 1700 California Street
33 03-0360 03-0812958 Moorpark Marketplace
34 03-0786 03-0812568 Shops at Somerset Square
35 03-0945 03-0945 Crosswest Office Center
36 313541454 09-0001791 The Sovereign
37 03-0359 03-0812959 Merced Marketplace
38 326294415 09-0001865 Birmingham Place
39 327905776 09-0001862 Southwest Plaza III
40 04-0168 04-0168 Skillman Abrams Shopping Center
41 03-0065 03-0812895 Sycamore Mineral Springs Resort
42 312012147 09-0001772 Veterans AMC Theater
43 224241575 09-0001789 The Reserve at Deerwood
44 307724083 09-0001780 510 Glenwood Avenue
45 03-0479 03-0812939 Crescent Square
46 28862 03-0812553 1801 K Street
47 316914162 09-0001820 Summit Office Park
48 03-0716 03-0716 Towne Square Shopping Center
49 04-0302 04-0302 Doubletree Club Boston Bayside
50 320262728 09-0001809 Sunrise Mesa Mobile Home Park
51 333925420 09-0001851 Arvada West Town Center
52 04-0258 04-0258 Chelsea Business Park
53 304554535 09-0001827 Sandy Springs Crossing Shopping Center
54 321942022 09-0001817 Main Street Shopping Center
55 03-0834 03-0834 Coventry Commons
56 04-0156 03-0812573 Stop and Shop Bristol
57 04-0212 03-0812984 Market City Shopping Center
58 04-0040 03-0812974 Towne Centre Plaza
59 03-0560 03-0560 Forest Cove Office
60 323802178 09-0001814 Mountain Lodge Apartments
61 313361209 09-0001786 Stonegate Mobile Home Park
62 314702229 09-0001813 222 East 41st Street
63 03-0832 03-0832 Celebration at Six Forks
64 309011621 09-0001866 Palisades I Office Building
65 03-0968 03-0968 Sheraton Four Points - San Francisco
66 332100717 09-0001878 Richland Medical Three
67 03-0956 03-0812970 Willow Creek Town Center
68 325962624 09-0001868 Milestone South Shopping Center
69 04-0267 03-0812572 Neiman Marcus - Fashion Valley
70 329394223 09-0001856 Willows of Lone Mountain West
71 04-0133 04-0133 Reata Apartments
72 03-0193 03-0812232 Friendship Center
73 316335389 09-0001833 Highwoods Plaza
74 03-0959 03-0812965 Victorville Pavillion
75 04-0167 04-0167 Old Ashburn Square
76 04-0082 04-0082 26-30 West Hubbard
77 04-0413 04-0413 22 West Hubbard
78 03-0671 03-0671 Holiday Inn at Morgan City
79 03-0692 03-0692 Sabre MHC
80 328321211 09-0001855 Gwinnett Professional Center
81 03-0754 03-0812570 Baywater Business Park
82 316455702 09-0001818 Southland Plaza Shopping Center
83 232633234 09-0001731 Westfield Corporate Center
84 332235415 09-0001871 Citiplace III
85 331891859 09-0001846 The Ridges of Geneva East Apartments
86 333795837 09-0001863 Scripps Ranch Technology Center
87 329701408 09-0001861 Bangor Plaza
88 317870479 09-0001812 Marietta Professional Center
89 330364742 09-0001903 Arbor Square Shopping Center
90 331553898 09-0001880 Greenlawn Crossing II
91 04-0144 04-0144 Spring Gulch RV
92 04-0281 03-0812945 West Court Plaza
93 03-0828 03-0812979 Hidden Valley Village
94 327311717 09-0001853 Hampton R&D Building
95 03-0797 03-0812966 Rockefeller Industrial Buildings
96 323793801 09-0001850 Pecos Terrace II
97 03-0845 03-0812961 Arrowhead Self Storage
98 03-0901 03-0901 Hollywood Center
99 130280960 09-0001876 Milestone III Shopping Center
100 03-0112 03-0812929 770 Smithridge Drive
101 320582827 09-0001808 Valley View Industrial Portfolio
101.01 320582827 09-0001808-A Valley View Industrial Portfolio
101.02 320582827 09-0001808-B Valley View Industrial Portfolio
101.03 320582827 09-0001808-C Valley View Industrial Portfolio
102 309070748 09-0001783 401 Greenwich Street
103 04-0143 04-0143 Twin Lakes RV
104 317683849 09-0001811 Union Town Center
105 311230870 09-0001785 Duluth Professional Center
106 315732671 09-0001799 Lakeshore Grande Apartments
107 300620460 09-0001819 Enterprise Portfolio
107.01 300620460 09-0001819-A Enterprise Portfolio
107.02 300620460 09-0001819-B Enterprise Portfolio
108 317865091 09-0001831 Berryland Shopping Center
109 327284209 09-0001859 Hampshire Square
110 332154781 09-0001847 River Oaks Landing
111 305814038 09-0001762 Bodega Business Park
112 03-0706 03-0706 Meadowbrook Commons
113 04-0263 04-0263 700 Lexington Avenue (Ground Lease)
114 320632176 09-0001802 Summit Place Shopping Center
115 04-0169 400070 Quail Park at El Dorado Hills
116 314161136 09-0001765 Shoppes at North Augusta
117 312760597 09-0001852 Twinsburg Town Center III
118 03-0783 400067 Jamestown Eckerd
119 03-0857 400068 2675 Patrick/6145 Harrison
120 331593332 09-0001844 Cedar Crest Apartments
121 317091638 09-0001822 Greatwood Lakes Office Building
122 332183897 09-0001877 Rancho Santa Barbara MHP
123 315514662 09-0001816 Bradley Business Center
124 323770483 09-0001849 Pecos Terrace I
125 03-0516 400066 Main Plaza
GCCFC 04-GG1 Loan ID Control_Number Borrower Name
1 09-1001116 TST 885 Third, L.L.C.
2 03-0768 111 Chelsea Commerce LP
3 03-0720 MAD 660, LLC
4 04-0008 Louisville Trophy LLC
5 09-1001114 Southland Mall, L.P.
6 03-0924 Greensboro Center LP
7 28918 North Tower, LLC
8 09-1001115 GGP-Deerbrook, L.P.
9 03-0358 Maguire Properties - 611 N. Brand LLC
10 03-0951 DM Crescent, LLC; MB Alameda, LLC; MB 1031, LLC; MB Pier, LLC; MB 801, LLC;
SM Crescent, LLC
11 03-0535 237 Max Park Avenue, L.P.
12 28799 180 N. LaSalle II, L.L.C.
13 334381071 New Roc Associates, L.P.
14 09-1001099B Water Tower LLC
15 03-0816 Castle Davies, LLC
16 09-1001093C GS II Brook Highland LLC, GS II Meridian Crosroads LLC, GS II University Centre LLC,
GS II Uptown Solon LLC, GS II Big Oaks LLC, GS II North Pointe LLC, GS II Green
Ridge LLC, GS II Indian Hills LLC, GS II Oxford Commons LLC, GS II Jacksonville
Regional LLC
16.01 09-1001093C GS II Brook Highland LLC
16.02 09-1001093C GS II Meridian Crosroads LLC
16.03 09-1001093C GS II University Centre LLC
16.04 09-1001093C GS II Uptown Solon LLC
16.05 09-1001093C GS II Big Oaks LLC
16.06 09-1001093C GS II North Pointe LLC
16.07 09-1001093C GS II Green Ridge LLC
16.08 09-1001093C GS II Indian Hills LLC
16.09 09-1001093C GS II Oxford Commons LLC
16.10 09-1001093C GS II Jacksonville Regional LLC
17 03-0499 Sealy TA Texas, L.P.
17.01 03-0499
17.02 03-0499
17.03 03-0499
17.04 03-0499
17.05 03-0499
17.06 03-0499
17.07 03-0499
17.08 03-0499
17.09 03-0499
17.10 03-0499
17.11 03-0499
17.12 03-0499
17.13 03-0499
17.14 03-0499
18 01-1001101B Crescent 5 Houston Center, L.P.
19 04-0014 Cerritos Best Plaza, LLC
20 04-0025 Severance SPE FEECO, L.L.C.
21 09-0001106 REP A10 LLC
21.01 09-0001106
21.02 09-0001106
21.03 09-0001106
21.04 09-0001106
21.05 09-0001106
21.06 09-0001106
21.07 09-0001106
21.08 09-0001106
21.09 09-0001106
21.10 09-0001106
21.11 09-0001106
21.12 09-0001106
21.13 09-0001106
21.14 09-0001106
21.15 09-0001106
21.16 09-0001106
21.17 09-0001106
21.18 09-0001106
21.19 09-0001106
22 329620596 STHQ Realty LLC
23 302073238 BF Owner, L.L.C.
24 316293454 Rookwood Pavilion Limited Partnership
25 04-0047 Rolling Valley Mall LLC
26 311570127 River Root Partners, LLC
27 09-1001105 REP A8 LLC
27.01 09-1001105
27.02 09-1001105
27.03 09-1001105
27.04 09-1001105
27.05 09-1001105
27.06 09-1001105
27.07 09-1001105
27.08 09-1001105
27.09 09-1001105
27.10 09-1001105
27.11 09-1001105
27.12 09-1001105
27.13 09-1001105
27.14 09-1001105
27.15 09-1001105
28 324840940 Burlington Property, LLC
29 03-0467 Chesterfield Square, LLC
30 03-0944 PSS Pacific Beach, LLC & PSS Walnut Creek, LLC
30.01 03-0944
30.02 03-0944
31 03-0584 North/Halsted LLC
32 04-0026 1700 California Street, LLC
33 03-0360 Zelman Moorpark Marketplace, LLC
34 03-0786 Glastonbury Somerset, LLC; Darien Somerset, LLC; Flanders Somerset, LLC
35 03-0945 399 Crosswest of New York LLC
36 313541454 Sovereign Realty Associates Limited Partnership
37 03-0359 Zelman Merced Marketplace, LLC
38 326294415 BP Commercial LLC
39 327905776 SWPlaza III, LLC
40 04-0168 Dunhill Abrams, Ltd
41 03-0065 Sycamore Mineral Springs, LLC
42 312012147 Tampa Veterans 24, L.P.
43 224241575 Epoch Deerwood, Ltd.
44 307724083 Burcam Capital II, L.L.C.
45 03-0479 Crescent Dixon Plaza I, LLC; Crescent Dixon Plaza II, LLC
46 28862 1801 K Street Investors, L.L.C.
47 316914162 KP/Summit Office Park, LTD.
48 03-0716 Towne Square Shopping Center, L.P.
49 04-0302 Bayside Club Hotel LLC
50 320262728 Bristol Group, L.L.C.
51 333925420 Arvada West 04, LLC, Arvada West Burger 04, LLC, Arvada West Tech V 04, LLC, Arvada
West Exchange One 04, LLC
52 04-0258 BPG Industrial Partners III, L.P.
53 304554535 Sandy Springs Crossing LLC
54 321942022 Cherokee Main Street, LLC
55 03-0834 Coventry Commons LLC
56 04-0156 Leashold Capital - Bristol LLC
57 04-0212 Market City (Delaware) LLC
58 04-0040 Stoneridge Mobile Home Park, a California LP
59 03-0560 Forestcove, LLC
60 323802178 Brookstone, L.L.C., Pawnee L.L.C., & Mountain Lodge Company, LLC
61 313361209 Stonegate MHC LP
62 314702229 Stanken Financing LLC
63 03-0832 HD Celebration, LLC
64 309011621 Lichtin/Trinity I, LLC
65 03-0968 Peninsular Hospitality Inc.
66 332100717 Medical Park Three Limited Partnership
67 03-0956 Willow Creek Town Center, LLC; Willow Creek Town Center A, LLC
68 325962624 First Holding LLC
69 04-0267 Stonestreet Development, LLC
70 329394223 PR Lone Mountain West LLC
71 04-0133 Haines First Phase, Ltd.
72 03-0193 Rushmore Friendship Shopping Center, LLC
73 316335389 THP, LLC
74 03-0959 Bear Valley Road Partners, LLC; MLantz, LLC
75 04-0167 Ashburn Square, L.L.C.
76 04-0082 26-30 West Hubbard, LLC
77 04-0413 22 West Hubbard, LLC
78 03-0671 JDI Morgan City Limited Partnership
79 03-0692 Sabre Park Assocs, LLC
80 328321211 Gwinnett Professional Center, LTD.
81 03-0754 381 Connecticut Avenue Corporation
82 316455702 Southland Plaza Associates, LLC
83 232633234 4905 Tilghman, L.P.
84 332235415 6100 Associates, L.L.C.
85 331891859 The Ridges Limited Partnership
86 333795837 Cornerstone Realty Investments, LLC
87 329701408 Bangor Plaza Associates
88 317870479 Marietta-Canton Investments, L.L.C.
89 330364742 Arbor Square II, LLC
90 331553898 CPRE-1 End Greenlawn II, L.P.
91 04-0144 MHC Spring Gulch, LLC
92 04-0281 Aba Investments, LLC
93 03-0828 East Hills Plaza, LLC
94 327311717 Hampton R&D Properties, LLC
95 03-0797 MPM Properties, LLC
96 323793801 Pecos Terrace II, A California Limited Partnership
97 03-0845 Self Storage Investors, LLC
98 03-0901 Hollywood Acquisition, LLC
99 130280960 Milestone Three LLC, N-One LLC, and N-Two LLC
100 03-0112 Magnolia Smithridge, LLC
101 320582827 Kouretas Properties, L.L.C.
101.01 320582827
101.02 320582827
101.03 320582827
102 309070748 Red Whip, Inc.
103 04-0143 MHC Twin Lakes, LLC
104 317683849 WS Briargate Associates, LLC
105 311230870 Duluth Professional Center, L.P.
106 315732671 Lakeshore Grande, LLC
107 300620460 OMD, LLC
107.01 300620460
107.02 300620460
108 317865091 Victory Berryland, L.L.C. and Palm Bay Investors, LLC
109 327284209 Hampshire Square Associates Limited Partnership
110 332154781 River Oaks Associates, LLC
111 305814038 Correre Casa, LLC
112 03-0706 Briarwood Meadowbrook, LP
113 04-0263 700 Lexington Trust
114 320632176 Summit Place Associates, LLC
115 04-0169 Ribeiro-California, LLC
116 314161136 North Augusta Shop Space Limited Partnership
117 312760597 Twinsburg Town Center III, LTD.
118 03-0783 Orion Development RA XXXI, LLC
119 03-0857 2675 Patrick/6145 Harrison, LLC
120 331593332 Cedar Crest Venture, LLC
121 317091638 Greatwood Lakes Limited
122 332183897 RSB Mobile Home Park LLC
123 315514662 Bradley Business Center, L.L.C.
124 323770483 Pecos Terrace, A California Limited Partnership
125 03-0516 Main Plaza, LLC
GCCFC 04-GG1 Loan ID Control_Number Property Name General Property Type
1 09-1001116 885 Third Avenue Office
2 03-0768 111 Eighth Avenue Office
3 03-0720 660 Madison Avenue Office
4 04-0008 Aegon Center Office
5 09-1001114 Southland Mall Retail
6 03-0924 Greensboro Corporate Center Office
7 28918 Wells Fargo Tower Office
8 09-1001115 Deerbrook Mall Retail
9 03-0358 Glendale Center Office
10 03-0951 801 Figueroa Tower Office
11 03-0535 237 Park Avenue Office
12 28799 180 North LaSalle Office
13 334381071 New Roc City Retail
14 09-1001099B Water Tower Place Retail
15 03-0816 Davies Pacific Center Office
16 09-1001093C
16.01 09-1001093C Brook Highland Plaza Shopping Center Retail
16.02 09-1001093C Meridian Crossroads Shopping Center Retail
16.03 09-1001093C University Center Retail
16.04 09-1001093C Uptown Solon Shopping Center Retail
16.05 09-1001093C Big Oaks Crossing Retail
16.06 09-1001093C North Pointe Shopping Center Retail
16.07 09-1001093C Green Ridge Square Retail
16.08 09-1001093C Indian Hills Plaza Retail
16.09 09-1001093C Oxford Commons Center Retail
16.10 09-1001093C Jacksonville Regional ShoppingCenter Retail
17 03-0499
17.01 03-0499 Centennial / Six Flags Industrial
17.02 03-0499 Mockingbird Industrial
17.03 03-0499 Nicholson Industrial
17.04 03-0499 Silber Industrial
17.05 03-0499 Crosstimbers Industrial
17.06 03-0499 Irving Industrial
17.07 03-0499 Minimax 3 Industrial
17.08 03-0499 Sam Houston Industrial
17.09 03-0499 Avenue S Industrial
17.10 03-0499 Minimax 2 Industrial
17.11 03-0499 Ambassador Industrial
17.12 03-0499 Avenue T Industrial
17.13 03-0499 Statesman Industrial
17.14 03-0499 Vantage Industrial
18 01-1001101B 5 Houston Center Office
19 04-0014 Best Plaza Retail
20 04-0025 Severance Town Center Retail
21 09-0001106
21.01 09-0001106 2002 Orville Drive North Industrial
21.02 09-0001106 110 Orville Drive Industrial
21.03 09-0001106 150 Engineers Road Industrial
21.04 09-0001106 70 Schmitt Boulevard Industrial
21.05 09-0001106 40 Oser Avenue Industrial
21.06 09-0001106 170 Wilbur Place Industrial
21.07 09-0001106 70 Orville Drive Industrial
21.08 09-0001106 90 Oser Avenue Industrial
21.09 09-0001106 140 Wilbur Place Industrial
21.10 09-0001106 1385 Lakeland Avenue Industrial
21.11 09-0001106 595 Old Willets Path Industrial
21.12 09-0001106 30 Oser Avenue Industrial
21.13 09-0001106 85 Engineers Road Industrial
21.14 09-0001106 50 Oser Avenue Industrial
21.15 09-0001106 60 Oser Avenue Industrial
21.16 09-0001106 631-641 Old Willets Path Industrial
21.17 09-0001106 65 Engineers Road Industrial
21.18 09-0001106 208 Blydenburgh Road Industrial
21.19 09-0001106 80 Oser Avenue Industrial
22 329620596 Xerox Corporate Headquarters Office
23 302073238 Bradley Fair Shopping Center Retail
24 316293454 Rookwood Pavilion Retail
25 04-0047 Rolling Valley Retail
26 311570127 Riverbend Centre Retail
27 09-1001105
27.01 09-1001105 400 Oser Avenue Industrial
27.02 09-1001105 2005 Orville Drive North Industrial
27.03 09-1001105 180 Oser Avenue Industrial
27.04 09-1001105 933 Vanderbilt Motor Parkway Industrial
27.05 09-1001105 120 Ricefield Lane Industrial
27.06 09-1001105 120 Wilbur Place Industrial
27.07 09-1001105 20 Orville Drive Industrial
27.08 09-1001105 651-661 Old Willets Path Industrial
27.09 09-1001105 85 Orville Drive Industrial
27.10 09-1001105 360 Oser Avenue Industrial
27.11 09-1001105 375 Oser Avenue Industrial
27.12 09-1001105 63 Oser Avenue Industrial
27.13 09-1001105 681 Old Willets Path Industrial
27.14 09-1001105 65 Oser Avenue Industrial
27.15 09-1001105 210 Blydenburgh Road Industrial
28 324840940 Burlington Office Center Office
29 03-0467 Chesterfield Square Retail
30 03-0944
30.01 03-0944 Price SS Pacific Beach Self-Storage
30.02 03-0944 Price SS Walnut Creek Self-Storage
31 03-0584 Lincoln Park Centre Retail
32 04-0026 1700 California Street Office
33 03-0360 Moorpark Marketplace Retail
34 03-0786 Shops at Somerset Square Retail
35 03-0945 Crosswest Office Center Office
36 313541454 The Sovereign Multifamily
37 03-0359 Merced Marketplace Retail
38 326294415 Birmingham Place Office
39 327905776 Southwest Plaza III Retail
40 04-0168 Skillman Abrams Shopping Center Retail
41 03-0065 Sycamore Mineral Springs Resort Hospitality
42 312012147 Veterans AMC Theater Retail
43 224241575 The Reserve at Deerwood Multifamily
44 307724083 510 Glenwood Avenue Office
45 03-0479 Crescent Square Retail
46 28862 1801 K Street Office
47 316914162 Summit Office Park Office
48 03-0716 Towne Square Shopping Center Retail
49 04-0302 Doubletree Club Boston Bayside Hospitality
50 320262728 Sunrise Mesa Mobile Home Park Mobile Home Park
51 333925420 Arvada West Town Center Retail
52 04-0258 Chelsea Business Park Industrial
53 304554535 Sandy Springs Crossing Shopping Center Retail
54 321942022 Main Street Shopping Center Retail
55 03-0834 Coventry Commons Retail
56 04-0156 Stop and Shop Bristol Retail
57 04-0212 Market City Shopping Center Retail
58 04-0040 Towne Centre Plaza Retail
59 03-0560 Forest Cove Office Office
60 323802178 Mountain Lodge Apartments Multifamily
61 313361209 Stonegate Mobile Home Park Mobile Home Park
62 314702229 222 East 41st Street Other
63 03-0832 Celebration at Six Forks Retail
64 309011621 Palisades I Office Building Office
65 03-0968 Sheraton Four Points - San Francisco Hospitality
66 332100717 Richland Medical Three Office
67 03-0956 Willow Creek Town Center Retail
68 325962624 Milestone South Shopping Center Retail
69 04-0267 Neiman Marcus - Fashion Valley Retail
70 329394223 Willows of Lone Mountain West Multifamily
71 04-0133 Reata Apartments Multifamily
72 03-0193 Friendship Center Retail
73 316335389 Highwoods Plaza Office
74 03-0959 Victorville Pavillion Retail
75 04-0167 Old Ashburn Square Retail
76 04-0082 26-30 West Hubbard Office
77 04-0413 22 West Hubbard Retail
78 03-0671 Holiday Inn at Morgan City Hospitality
79 03-0692 Sabre MHC Mobile Home Park
80 328321211 Gwinnett Professional Center Office
81 03-0754 Baywater Business Park Industrial
82 316455702 Southland Plaza Shopping Center Retail
83 232633234 Westfield Corporate Center Office
84 332235415 Citiplace III Office
85 331891859 The Ridges of Geneva East Apartments Multifamily
86 333795837 Scripps Ranch Technology Center Office
87 329701408 Bangor Plaza Retail
88 317870479 Marietta Professional Center Office
89 330364742 Arbor Square Shopping Center Retail
90 331553898 Greenlawn Crossing II Retail
91 04-0144 Spring Gulch RV Mobile Home Park
92 04-0281 West Court Plaza Retail
93 03-0828 Hidden Valley Village Retail
94 327311717 Hampton R&D Building Office
95 03-0797 Rockefeller Industrial Buildings Industrial
96 323793801 Pecos Terrace II Multifamily
97 03-0845 Arrowhead Self Storage Self-Storage
98 03-0901 Hollywood Center Retail
99 130280960 Milestone III Shopping Center Retail
100 03-0112 770 Smithridge Drive Office
101 320582827
101.01 320582827 FreshPoint Foods Industrial
101.02 320582827 Crescent Electric Industrial
101.03 320582827 United Green Mark & Helena Chemical Industrial
102 309070748 401 Greenwich Street Office
103 04-0143 Twin Lakes RV Mobile Home Park
104 317683849 Union Town Center Retail
105 311230870 Duluth Professional Center Office
106 315732671 Lakeshore Grande Apartments Multifamily
107 300620460
107.01 300620460 One Morton Drive Office
107.02 300620460 400 East Main Street Office
108 317865091 Berryland Shopping Center Retail
109 327284209 Hampshire Square Retail
110 332154781 River Oaks Landing Retail
111 305814038 Bodega Business Park Industrial
112 03-0706 Meadowbrook Commons Retail
113 04-0263 700 Lexington Avenue (Ground Lease) Other
114 320632176 Summit Place Shopping Center Retail
115 04-0169 Quail Park at El Dorado Hills Office
116 314161136 Shoppes at North Augusta Retail
117 312760597 Twinsburg Town Center III Retail
118 03-0783 Jamestown Eckerd Retail
119 03-0857 2675 Patrick/6145 Harrison Industrial
120 331593332 Cedar Crest Apartments Multifamily
121 317091638 Greatwood Lakes Office Building Office
122 332183897 Rancho Santa Barbara MHP Mobile Home Park
123 315514662 Bradley Business Center Retail
124 323770483 Pecos Terrace I Multifamily
125 03-0516 Main Plaza Retail
GCCFC 04-GG1 Loan ID Control_Number Detailed Property Type Size Units
1 09-1001116 General Urban 586,589 sf
2 03-0768 General Urban 2,941,646 sf
3 03-0720 General Urban 267,015 sf
4 04-0008 General Urban 759,650 sf
5 09-1001114 Regional Mall 1,011,998 sf
6 03-0924 General Suburban 433,942 sf
7 28918 General Urban 1,382,326 sf
8 09-1001115 Regional Mall 461,298 sf
9 03-0358 General Urban 695,138 sf
10 03-0951 General Urban 436,075 sf
11 03-0535 General Urban 1,149,789 sf
12 28799 General Urban 766,329 sf
13 334381071 Anchored 446,076 sf
14 09-1001099B Anchored 821,724 sf
15 03-0816 General Urban 457,990 sf
16 09-1001093C
2,907,608 sf
16.01 09-1001093C Anchored 423,393 sf
16.02 09-1001093C Power Center/Big Box 431,220 sf
16.03 09-1001093C Power Center/Big Box 410,491 sf
16.04 09-1001093C Power Center/Big Box 183,288 sf
16.05 09-1001093C Anchored 348,236 sf
16.06 09-1001093C Anchored 294,471 sf
16.07 09-1001093C Power Center/Big Box 133,877 sf
16.08 09-1001093C Anchored 248,963 sf
16.09 09-1001093C Power Center/Big Box 213,934 sf
16.10 09-1001093C Anchored 219,735 sf
17 03-0499 1,811,871 sf
17.01 03-0499 Warehouse 237,344 sf
17.02 03-0499 Warehouse 227,329 sf
17.03 03-0499 Warehouse 155,767 sf
17.04 03-0499 Warehouse 184,500 sf
17.05 03-0499 Warehouse 170,558 sf
17.06 03-0499 Warehouse 60,575 sf
17.07 03-0499 Warehouse 128,459 sf
17.08 03-0499 Warehouse 110,810 sf
17.09 03-0499 Warehouse 104,000 sf
17.10 03-0499 Warehouse 91,166 sf
17.11 03-0499 Warehouse 100,000 sf
17.12 03-0499 Warehouse 100,000 sf
17.13 03-0499 Warehouse 91,363 sf
17.14 03-0499 Warehouse 50,000 sf
18 01-1001101B General Urban 580,875 sf
19 04-0014 Unanchored 359,102 sf
20 04-0025 Power Center/Big Box 644,501 sf
21 09-0001106 1,137,142 sf
21.01 09-0001106 Industrial/Warehouse, w/Office Tenant 206,005 sf
21.02 09-0001106 Industrial/Warehouse, w/Office Tenant 110,000 sf
21.03 09-0001106 Industrial/Warehouse, w/Office Tenant 135,090 sf
21.04 09-0001106 Industrial/Warehouse, w/Office Tenant 76,312 sf
21.05 09-0001106 Industrial/Warehouse, w/Office Tenant 59,850 sf
21.06 09-0001106 Industrial/Warehouse, w/Office Tenant 72,283 sf
21.07 09-0001106 Industrial/Warehouse, w/Office Tenant 41,508 sf
21.08 09-0001106 Industrial/Warehouse, w/Office Tenant 37,500 sf
21.09 09-0001106 Industrial/Warehouse, w/Office Tenant 48,500 sf
21.10 09-0001106 Industrial/Warehouse, w/Office Tenant 35,079 sf
21.11 09-0001106 Industrial/Warehouse, w/Office Tenant 31,670 sf
21.12 09-0001106 Industrial/Warehouse, w/Office Tenant 41,851 sf
21.13 09-0001106 Industrial/Warehouse, w/Office Tenant 41,954 sf
21.14 09-0001106 Industrial/Warehouse, w/Office Tenant 60,000 sf
21.15 09-0001106 Industrial/Warehouse, w/Office Tenant 48,000 sf
21.16 09-0001106 Industrial/Warehouse, w/Office Tenant 25,000 sf
21.17 09-0001106 Industrial/Warehouse, w/Office Tenant 23,000 sf
21.18 09-0001106 Industrial/Warehouse, w/Office Tenant 24,040 sf
21.19 09-0001106 Industrial/Warehouse, w/Office Tenant 19,500 sf
22 329620596 General Suburban 237,000 sf
23 302073238 Anchored 249,788 sf
24 316293454 Anchored 250,998 sf
25 04-0047 Anchored 234,623 sf
26 311570127 Anchored 269,128 sf
27 09-1001105 655,160 sf
27.01 09-1001105 Industrial/Warehouse, w/Office Tenant 163,964 sf
27.02 09-1001105 Industrial/Warehouse, w/Office Tenant 130,010 sf
27.03 09-1001105 Industrial/Warehouse, w/Office Tenant 61,264 sf
27.04 09-1001105 Industrial/Warehouse, w/Office Tenant 48,000 sf
27.05 09-1001105 Industrial/Warehouse, w/Office Tenant 33,065 sf
27.06 09-1001105 Industrial/Warehouse, w/Office Tenant 34,866 sf
27.07 09-1001105 Industrial/Warehouse, w/Office Tenant 12,900 sf
27.08 09-1001105 Industrial/Warehouse, w/Office Tenant 25,000 sf
27.09 09-1001105 Industrial/Warehouse, w/Office Tenant 25,091 sf
27.10 09-1001105 Industrial/Warehouse, w/Office Tenant 23,000 sf
27.11 09-1001105 Industrial/Warehouse, w/Office Tenant 20,000 sf
27.12 09-1001105 Industrial/Warehouse, w/Office Tenant 23,000 sf
27.13 09-1001105 Industrial/Warehouse, w/Office Tenant 15,000 sf
27.14 09-1001105 Industrial/Warehouse, w/Office Tenant 20,000 sf
27.15 09-1001105 Industrial/Warehouse, w/Office Tenant 20,000 sf
28 324840940 General Suburban 194,699 sf
29 03-0467 Anchored 113,260 sf
30 03-0944 242,479 sf
30.01 03-0944 General, units only 137,648 sf
30.02 03-0944 General, units only 104,831 sf
31 03-0584 Anchored 144,465 sf
32 04-0026 Medical 143,009 sf
33 03-0360 Power Center/Big Box 202,450 sf
34 03-0786 Other Retail 102,729 sf
35 03-0945 General Suburban 143,815 sf
36 313541454 Conventional 136 Units
37 03-0359 Power Center/Big Box 111,120 sf
38 326294415 General Suburban 102,931 sf
39 327905776 Anchored 140,385 sf
40 04-0168 Anchored 133,088 sf
41 03-0065 Full Service 74 Rooms
42 312012147 Single Tenant 94,774 sf
43 224241575 Garden 226 Units
44 307724083 General Urban 67,369 sf
45 03-0479 Anchored 49,538 sf
46 28862 General Urban 563,795 sf
47 316914162 General Urban 239,095 sf
48 03-0716 Unanchored 151,555 sf
49 04-0302 Full Service 197 Rooms
50 320262728 Mobile Home Park 364 Pads
51 333925420 Shadow Anchored 83,805 sf
52 04-0258 Warehouse 144,077 sf
53 304554535 Anchored 133,324 sf
54 321942022 Anchored 201,014 sf
55 03-0834 Anchored 114,539 sf
56 04-0156 Single Tenant 74,161 sf
57 04-0212 Anchored 86,734 sf
58 04-0040 Power Center/Big Box 94,096 sf
59 03-0560 General Suburban 84,029 sf
60 323802178 Garden 254 Units
61 313361209 Mobile Home Park 359 Pads
62 314702229 Ground Lease/Land 19,700 sf
63 03-0832 Unanchored 124,521 sf
64 309011621 General Suburban 79,148 sf
65 03-0968 Full Service 100 Rooms
66 332100717 Medical 73,395 sf
67 03-0956 Shadow Anchored 36,310 sf
68 325962624 Anchored 59,989 sf
69 04-0267 Single Tenant 105,144 sf
70 329394223 Garden 98 Units
71 04-0133 Garden 144 Units
72 03-0193 Anchored 108,216 sf
73 316335389 General Suburban 65,390 sf
74 03-0959 Anchored 40,754 sf
75 04-0167 Unanchored 31,318 sf
76 04-0082 Other Office 33,774 sf
77 04-0413 Other Retail 10,200 sf
78 03-0671 Full Service 221 Rooms
79 03-0692 Mobile Home Park 283 Pads
80 328321211 General Suburban 52,282 sf
81 03-0754 Industrial 126,473 sf
82 316455702 Anchored 122,956 sf
83 232633234 General Suburban 64,562 sf
84 332235415 General Suburban 43,901 sf
85 331891859 Garden 120 Units
86 333795837 General Suburban 62,224 sf
87 329701408 Anchored 135,059 sf
88 317870479 General Suburban 43,173 sf
89 330364742 Shadow Anchored 38,890 sf
90 331553898 Shadow Anchored 22,500 sf
91 04-0144 RVs 435 Pads
92 04-0281 Unanchored 86,220 sf
93 03-0828 Anchored 32,377 sf
94 327311717 Other Office 49,785 sf
95 03-0797 Warehouse 130,916 sf
96 323793801 Garden 128 Units
97 03-0845 General, units only 529 Units
98 03-0901 Anchored 125,320 sf
99 130280960 Shadow Anchored 17,180 sf
100 03-0112 General Suburban 42,050 sf
101 320582827 96,326 sf
101.01 320582827 Industrial/Warehouse, w/Office Tenant 49,026 sf
101.02 320582827 Industrial/Warehouse, w/Office Tenant 21,700 sf
101.03 320582827 Industrial/Warehouse, w/Office Tenant 25,600 sf
102 309070748 General Urban 16,500 sf
103 04-0143 RVs 430 Units
104 317683849 Shadow Anchored 23,489 sf
105 311230870 Medical 29,494 sf
106 315732671 Conventional 60 Units
107 300620460 62,096 sf
107.01 300620460 General Suburban 49,651 sf
107.02 300620460 General Suburban 12,445 sf
108 317865091 Anchored 74,947 sf
109 327284209 Anchored 59,850 sf
110 332154781 Shadow Anchored 32,800 sf
111 305814038 Industrial/Warehouse, w/Office Tenant 40,509 sf
112 03-0706 Anchored 40,308 sf
113 04-0263 Ground Lease/Land 26,760 sf
114 320632176 Shadow Anchored 69,602 sf
115 04-0169 General Suburban 20,160 sf
116 314161136 Shadow Anchored 45,160 sf
117 312760597 Shadow Anchored 23,026 sf
118 03-0783 Single Tenant 13,813 sf
119 03-0857 Industrial 47,421 sf
120 331593332 Conventional 48 Units
121 317091638 General Suburban 25,407 sf
122 332183897 Mobile Home Park 334 Pads
123 315514662 Unanchored 23,297 sf
124 323770483 Garden 56 Units
125 03-0516 Unanchored 18,074 sf
GCCFC 04-GG1 Loan ID Control_Number Address City
1 09-1001116 885 Third Avenue New York
2 03-0768 111 Eighth Avenue New York
3 03-0720 660 Madison Avenue New York
4 04-0008 400 W. Market Street Louisville
5 09-1001114 24500 Hesperian Boulevard Hayward
6 03-0924 8401-8405 Greensboro Drive McLean
7 28918 333 South Grand Avenue Los Angeles
8 09-1001115 20131 US Highway 59 N. Humble
9 03-0358 611 North Brand Boulevard Glendale
10 03-0951 801 South Figueroa Street Los Angeles
11 03-0535 237 Park Avenue New York
12 28799 180 North LaSalle Chicago
13 334381071 33 Le Count Place New Rochelle
14 09-1001099B 845 North Michigan Avenue Chicago
15 03-0816 841 Bishop Street Honolulu
16 09-1001093C
16.01 09-1001093C 5291 Highway 280 South Birmingham
16.02 09-1001093C SEC Fairview Avenue and Eagle Road Meridian
16.03 09-1001093C 326 - 412 S. College Street Wilmington
16.04 09-1001093C 6025 Kruse Drive Solon
16.05 09-1001093C 3929 N. Gloster Street Tupelo
16.06 09-1001093C 7400 Rivers Avenue North Charleston
16.07 09-1001093C 3410 Alpine Avenue Walker
16.08 09-1001093C 4208 E. Blue Grass Road Mt. Pleasant
16.09 09-1001093C 3500 Roxboro Road Durham
16.10 09-1001093C 3000 Dunn Avenue Jacksonville
17 03-0499
17.01 03-0499 2400 Centennial, 300 Six Flags Drive Arlington
17.02 03-0499 601-625 Mockingbird Lane Dallas
17.03 03-0499 12901 Nicholson Road Farmers Branch
17.04 03-0499 1200 - 1234 Silber Road Houston
17.05 03-0499 401 - 421 West Crosstimbers Street Houston
17.06 03-0499 3439 Irving Boulevard Dallas
17.07 03-0499 1401-1431 Greengrass Drive Houston
17.08 03-0499 1801 West Sam Houston Pkwy North Houston
17.09 03-0499 1375 Avenue S Grand Prairie
17.10 03-0499 1501 - 1537 Greengrass Drive Houston
17.11 03-0499 8611 Ambassador Row Dallas
17.12 03-0499 1002 Avenue T Grand Prairie
17.13 03-0499 5101 Statesman Drive Irving
17.14 03-0499 1625 Vantage Drive Carrollton
18 01-1001101B 1401 McKinney Street Houston
19 04-0014 11101-11263 183rd Street Cerritos
20 04-0025 3640 Mayfield Road Cleveland Heights
21 09-0001106
21.01 09-0001106 2002 Orville Drive North Bohemia
21.02 09-0001106 110 Orville Drive Bohemia
21.03 09-0001106 150 Engineers Road Hauppauge
21.04 09-0001106 70 Schmitt Boulevard Farmingdale
21.05 09-0001106 40 Oser Avenue Hauppauge
21.06 09-0001106 170 Wilbur Place Bohemia
21.07 09-0001106 70 Orville Drive Bohemia
21.08 09-0001106 90 Oser Avenue Hauppauge
21.09 09-0001106 140 Wilbur Place Bohemia
21.10 09-0001106 1385 Lakeland Avenue Bohemia
21.11 09-0001106 595 Old Willets Path Hauppauge
21.12 09-0001106 30 Oser Avenue Hauppauge
21.13 09-0001106 85 Engineers Road Hauppauge
21.14 09-0001106 50 Oser Avenue Hauppauge
21.15 09-0001106 60 Oser Avenue Hauppauge
21.16 09-0001106 631-641 Old Willets Path Hauppauge
21.17 09-0001106 65 Engineers Road Hauppauge
21.18 09-0001106 208 Blydenburgh Road Islandia
21.19 09-0001106 80 Oser Avenue Hauppauge
22 329620596 800 Long Ridge Road Stamford
23 302073238 1800-2132 North Rock Road Wichita
24 316293454 2692 Madison Road Cincinnati
25 04-0047 9230-80 Old Keene Mill Road Burke
26 311570127 Turner McCall Boulevard & Riverbend Drive Rome
27 09-1001105
27.01 09-1001105 400 Oser Avenue Hauppauge
27.02 09-1001105 2005 Orville Drive North Bohemia
27.03 09-1001105 180 Oser Avenue Hauppauge
27.04 09-1001105 933 Vanderbilt Motor Parkway Hauppauge
27.05 09-1001105 120 Ricefield Lane Hauppauge
27.06 09-1001105 120 Wilbur Place Bohemia
27.07 09-1001105 20 Orville Drive Bohemia
27.08 09-1001105 651-661 Old Willets Path Hauppauge
27.09 09-1001105 85 Orville Drive Bohemia
27.10 09-1001105 360 Oser Avenue Hauppauge
27.11 09-1001105 375 Oser Avenue Hauppauge
27.12 09-1001105 63 Oser Avenue Hauppauge
27.13 09-1001105 681 Old Willets Path Hauppauge
27.14 09-1001105 65 Oser Avenue Hauppauge
27.15 09-1001105 210 Blydenburgh Road Islandia
28 324840940 305, 315, 325 East Eisenhower Ann Arbor
29 03-0467 1800-1950 West Slauson Avenue Los Angeles
30 03-0944
30.01 03-0944 4667 Albuquerque Street San Diego
30.02 03-0944 1126 Saranap Avenue Walnut Creek
31 03-0584 North Avenue & Halsted Street Chicago
32 04-0026 1700 California Street San Francisco
33 03-0360 New Los Angeles Ave & HWY 23 Moorpark
34 03-0786 120-170 Glastonbury Boulevard Glastonbury
35 03-0945 399 Knollwood Road White Plains
36 313541454 1440 Beacon Street Brookline
37 03-0359 1720-1778 West Olive Avenue Merced
38 326294415 401-411 South Old Woodward Avenue Birmingham
39 327905776 3231 South Veterans Parkway Springfield
40 04-0168 6570-6780 Skillman Street Dallas
41 03-0065 1215 Avila Beach Drive San Luis Obispo
42 312012147 9302 Anderson Road Tampa
43 224241575 7632 Southside Boulevard Jacksonville
44 307724083 510 Glenwood Avenue Raleigh
45 03-0479 1651-1833 North Milpitas Boulevard Milpitas
46 28862 1801 K Street, NW Washington
47 316914162 1200 & 1300 Summit Avenue Fort Worth
48 03-0716 910 West Parker Road Plano
49 04-0302 236 Mount Vernon Street Boston
50 320262728 301 South Signal Butte Road Apache Junction
51 333925420 14405-14715 West 64th Ave & 6450-6510 Indiana Street Arvada
52 04-0258 1,3,7 Chelsea Parkway Boothwyn
53 304554535 6690 Roswell Road Atlanta
54 321942022 600 Cherokee Place Cartersville
55 03-0834 43301 Joy Road Canton
56 04-0156 657 Farmington Avenue (Route 6) Bristol
57 04-0212 2917-2939 Harding Avenue and 2915-2927 Kapiolani Boulevard Honolulu
58 04-0040 2701, 2705 & 2709 North Mesquite Drive Mesquite
59 03-0560 3001-3061 Miller Road Ann Arbor
60 323802178 2501 Mountain Lodge Circle Vestavia Hills
61 313361209 1401 East Rundberg Lane Austin
62 314702229 222 East 41st Street New York
63 03-0832 7301 Six Forks Road Raleigh
64 309011621 5400 Trinity Road Raleigh
65 03-0968 264 South Airport Boulevard South San Francisco
66 332100717 3330 Medical Park Drive Columbia
67 03-0956 1001-1117 East Bidwell Street Folsom
68 325962624 4611-4687 Milestone Lane Castle Rock
69 04-0267 7027 Friars Road/Fashion Valley Mall San Diego
70 329394223 10620 West Alexander Road Las Vegas
71 04-0133 3102 Haine Drive Harlingen
72 03-0193 8455 S.W. Highway 200 Ocala
73 316335389 18302 Highwoods Preserve Parkway Tampa
74 03-0959 12127 & 12133 Mall Boulevard & 14280 Bear Valley Road Victorville
75 04-0167 20630-20660 Ashburn Road Ashburn
76 04-0082 26-30 West Hubbard Chicago
77 04-0413 22 West Hubbard Chicago
78 03-0671 520 Roderick Street Morgan City
79 03-0692 1705 Factory Outlet Boulevard Niagara Falls
80 328321211 601 Professional Drive Lawrenceville
81 03-0754 3 & 4 Duke, 205 & 205A Wilson, 366 & 372 Ely and 219-227 Wilson Norwalk
82 316455702 2019 Sixth Avenue SE Decatur
83 232633234 4905 Tilghman Street Allentown
84 332235415 6100 Corporate Boulevard Baton Rouge
85 331891859 250 & 300 South Edwards Boulevard Lake Geneva
86 333795837 10640-10660 Scripps Ranch Boulevard San Diego
87 329701408 1309 Blue Valley Drive Pen Argyl
88 317870479 895 Canton Road Marietta
89 330364742 8201-8267 Arbor Square Shopping Center Mason
90 331553898 661 Louis Hanna Boulevard Round Rock
91 04-0144 475 Lynch Road New Holland
92 04-0281 6 - 70 West Court Street Woodland
93 03-0828 1101-1161 Hidden Valley Parkway Norco
94 327311717 130 Research Drive Hampton
95 03-0797 1990-1992 Rockefeller Drive Ceres
96 323793801 3555 E. Lake Mead Boulevard Las Vegas
97 03-0845 26677 Highway 18 Rim Forest
98 03-0901 601-651 South State Road 7 Hollywood
99 130280960 4765 Front Street Castle Rock
100 03-0112 770-780 Smithridge Drive Reno
101 320582827
101.01 320582827 5420 Valley View Boulevard Las Vegas
101.02 320582827 5570 Valley View Boulevard Las Vegas
101.03 320582827 3670 & 3750 Dewey Drive Las Vegas
102 309070748 401 Greenwich Street New York
103 04-0143 1618 Memory Lane Chocowinity
104 317683849 8666-8850 North Union Boulevard Colorado Springs
105 311230870 3540 Duluth Park Lane Duluth
106 315732671 5508 Faith Drive Fayetteville
107 300620460
107.01 300620460 One Morton Drive Charlottesville
107.02 300620460 400 East Main Street Charlottesville
108 317865091 145 Berryland Avenue Ponchatoula
109 327284209 US Route 50 Romney
110 332154781 114-150 River Oaks Drive Tarboro
111 305814038 6001 South Decatur Boulevard Las Vegas
112 03-0706 6548 Meadowbrook Drive Fort Worth
113 04-0263 700 Lexington Avenue New York
114 320632176 201-298 Summit Place Silverthorne
115 04-0169 1200 and 1204 Suncast Lane El Dorado Hills
116 314161136 1215 Knox Avenue North Augusta
117 312760597 8900 Darrow Road Twinsburg
118 03-0783 809-811 North Main Street Jamestown
119 03-0857 2675 East Patrick Lane and 6145 Harrison Drive Las Vegas
120 331593332 1203-1213 Sweeney Drive Middleton
121 317091638 19855 Southwest Freeway Sugar Land
122 332183897 333 Old Mill Road Santa Barbara
123 315514662 29800 Bradley Road Sun City
124 323770483 3555 East Lake Mead Boulevard Las Vegas
125 03-0516 300 North Main Street Spanish Fork
GCCFC 04-GG1 Loan ID Control_Number County State Zip Code Original Balance Cut-off Date Balance
1 09-1001116 New York NY 10022 150,000,000 150,000,000.00
2 03-0768 New York NY 10011 149,500,000 149,500,000.00
3 03-0720 New York NY 10021 120,000,000 120,000,000.00
4 04-0008 Jefferson KY 40202 108,550,000 108,550,000.00
5 09-1001114 Alameda CA 94545 90,000,000 89,861,307.07
6 03-0924 Fairfax VA 22102 89,000,000 89,000,000.00
7 28918 Los Angeles CA 90071 86,437,500 86,437,500.00
8 09-1001115 Harris TX 77338 85,000,000 84,821,374.58
9 03-0358 Los Angeles CA 91203 80,000,000 80,000,000.00
10 03-0951 Los Angeles CA 90017 77,000,000 77,000,000.00
11 03-0535 New York NY 10017 67,333,333 67,333,333.00
12 28799 Cook IL 60606 67,000,000 66,776,012.19
13 334381071 Westchester NY 10801 66,000,000 65,928,839.79
14 09-1001099B Cook IL 60601 56,500,000 55,969,604.75
15 03-0816 Honolulu HI 96813 49,000,000 48,977,342.85
16 09-1001093C 50,000,000 48,819,646.98
16.01 09-1001093C Shelby AL 35242
16.02 09-1001093C Ada ID 83642
16.03 09-1001093C New Hanover NC 28403
16.04 09-1001093C Cuyahoga OH 44139
16.05 09-1001093C Lee MS 38804
16.06 09-1001093C Charleston SC 29406
16.07 09-1001093C Kent MI 49544
16.08 09-1001093C Isabella MI 48858
16.09 09-1001093C Durham NC 27704
16.10 09-1001093C Duval FL 32218
17 03-0499 48,052,000 48,006,546.88
17.01 03-0499 Tarrant TX 76011
17.02 03-0499 Dallas TX 75247
17.03 03-0499 Dallas TX 75234
17.04 03-0499 Harris TX 77055
17.05 03-0499 Harris TX 77018
17.06 03-0499 Dallas TX 75247
17.07 03-0499 Harris TX 77008
17.08 03-0499 Harris TX 77043
17.09 03-0499 Tarrant TX 75050
17.10 03-0499 Harris TX 77008
17.11 03-0499 Dallas TX 75247
17.12 03-0499 Tarrant TX 75050
17.13 03-0499 Dallas TX 75063
17.14 03-0499 Dallas TX 75006
18 01-1001101B Harris TX 77010 45,000,000 45,000,000.00
19 04-0014 Los Angeles CA 90703 45,000,000 44,949,811.14
20 04-0025 Cuyahoga OH 44118 43,000,000 43,000,000.00
21 09-0001106 39,600,000 39,409,857.41
21.01 09-0001106 Suffolk NY 11716
21.02 09-0001106 Suffolk NY 11716
21.03 09-0001106 Suffolk NY 11788
21.04 09-0001106 Suffolk NY 11735
21.05 09-0001106 Suffolk NY 11788
21.06 09-0001106 Suffolk NY 11716
21.07 09-0001106 Suffolk NY 11716
21.08 09-0001106 Suffolk NY 11788
21.09 09-0001106 Suffolk NY 11716
21.10 09-0001106 Suffolk NY 11716
21.11 09-0001106 Suffolk NY 11788
21.12 09-0001106 Suffolk NY 11788
21.13 09-0001106 Suffolk NY 11788
21.14 09-0001106 Suffolk NY 11788
21.15 09-0001106 Suffolk NY 11788
21.16 09-0001106 Suffolk NY 11788
21.17 09-0001106 Suffolk NY 11788
21.18 09-0001106 Suffolk NY 11749
21.19 09-0001106 Suffolk NY 11788
22 329620596 Fairfield CT 06904 36,000,000 35,783,185.57
23 302073238 Sedgwick KS 67206 34,000,000 34,000,000.00
24 316293454 Hamilton OH 45208 28,500,000 28,310,460.74
25 04-0047 Fairfax VA 22015 28,000,000 28,000,000.00
26 311570127 Floyd GA 30161 26,300,000 26,300,000.00
27 09-1001105 25,800,000 25,673,180.90
27.01 09-1001105 Suffolk NY 11788
27.02 09-1001105 Suffolk NY 11716
27.03 09-1001105 Suffolk NY 11788
27.04 09-1001105 Suffolk NY 11788
27.05 09-1001105 Suffolk NY 11788
27.06 09-1001105 Suffolk NY 11716
27.07 09-1001105 Suffolk NY 11716
27.08 09-1001105 Suffolk NY 11788
27.09 09-1001105 Suffolk NY 11716
27.10 09-1001105 Suffolk NY 11788
27.11 09-1001105 Suffolk NY 11788
27.12 09-1001105 Suffolk NY 11788
27.13 09-1001105 Suffolk NY 11788
27.14 09-1001105 Suffolk NY 11788
27.15 09-1001105 Suffolk NY 11749
28 324840940 Washtenaw MI 48108 24,250,000 24,201,362.67
29 03-0467 Los Angeles CA 90047 24,000,000 23,974,074.72
30 03-0944 23,500,000 23,459,850.94
30.01 03-0944 San Diego CA 92123
30.02 03-0944 Contra Costa CA 94595
31 03-0584 Cook IL 60611 22,250,000 22,250,000.00
32 04-0026 San Francisco CA 94109 21,800,000 21,800,000.00
33 03-0360 Ventura CA 93021 21,600,000 21,527,193.73
34 03-0786 Hartford CT 06033 21,000,000 20,957,422.85
35 03-0945 Westchester NY 10603 20,000,000 19,961,347.22
36 313541454 Norfolk MA 02446 19,350,000 19,205,804.87
37 03-0359 Merced CA 95348 16,900,000 16,881,091.14
38 326294415 Oakland MI 48009 15,300,000 15,300,000.00
39 327905776 Sangamon IL 62704 15,200,000 15,200,000.00
40 04-0168 Dallas TX 75231 15,000,000 15,000,000.00
41 03-0065 San Luis Obispo CA 93405 15,000,000 14,838,278.07
42 312012147 Hillsborough FL 33634 14,700,000 14,543,622.20
43 224241575 Duval FL 32256 14,400,000 14,400,000.00
44 307724083 Wake NC 27603 12,982,900 12,903,265.20
45 03-0479 Santa Clara CA 95035 12,500,000 12,448,503.91
46 28862 Washington DC DC 20006 12,371,875 12,371,875.00
47 316914162 Tarrant TX 76102 12,125,000 12,125,000.00
48 03-0716 Collin TX 75075 11,850,000 11,824,545.43
49 04-0302 Suffolk MA 02125 11,750,000 11,750,000.00
50 320262728 Maricopa AZ 85220 11,750,000 11,750,000.00
51 333925420 Jefferson CO 80004 11,600,000 11,600,000.00
52 04-0258 Delaware PA 19061 11,500,000 11,500,000.00
53 304554535 Fulton GA 30328 11,480,000 11,416,624.29
54 321942022 Bartow GA 30121 11,500,000 11,366,788.43
55 03-0834 Wayne MI 48187 11,200,000 11,165,400.69
56 04-0156 Hartford CT 06010 11,100,000 11,100,000.00
57 04-0212 Honolulu HI 96825 11,100,000 11,100,000.00
58 04-0040 Dallas TX 75150 10,725,000 10,703,137.59
59 03-0560 Washtenaw MI 48103 10,400,000 10,400,000.00
60 323802178 Jefferson AL 35216 10,240,000 10,176,454.84
61 313361209 Travis TX 78753 10,200,000 10,108,952.48
62 314702229 New York NY 10017 10,000,000 10,000,000.00
63 03-0832 Wake NC 27615 9,200,000 9,200,000.00
64 309011621 Wake NC 27607 9,130,000 9,130,000.00
65 03-0968 San Mateo CA 94080 9,000,000 8,981,648.42
66 332100717 Richland SC 29203 8,700,000 8,686,551.80
67 03-0956 Sacramento CA 95630 8,000,000 7,983,515.91
68 325962624 Douglas CO 80104 7,250,000 7,241,914.02
69 04-0267 San Diego CA 92108 7,100,000 7,100,000.00
70 329394223 Clark NV 89129 6,880,000 6,857,213.39
71 04-0133 Cameron TX 78550 6,800,000 6,800,000.00
72 03-0193 Marion FL 34476 6,775,000 6,719,045.43
73 316335389 Hillsborough FL 33647 6,700,000 6,700,000.00
74 03-0959 San Bernardino CA 92392 6,700,000 6,692,485.31
75 04-0167 Loudoun VA 20147 6,500,000 6,500,000.00
76 04-0082 Cook IL 60610 4,450,000 4,450,000.00
77 04-0413 Cook IL 60610 1,800,000 1,800,000.00
78 03-0671 St Mary Parish LA 70380 6,300,000 6,238,892.52
79 03-0692 Niagra NY 39343 6,200,000 6,186,833.83
80 328321211 Gwinnett GA 30045 6,000,000 5,976,362.46
81 03-0754 Fairfield CT 06853 6,000,000 5,973,688.72
82 316455702 Morgan AL 35601 5,850,000 5,850,000.00
83 232633234 Lehigh PA 18104 5,825,000 5,825,000.00
84 332235415 East Baton Rouge Parish LA 70808 5,740,000 5,740,000.00
85 331891859 Walworth WI 53147 5,350,000 5,350,000.00
86 333795837 San Diego CA 92131 5,300,000 5,288,347.76
87 329701408 Northampton PA 18072 5,200,000 5,143,253.18
88 317870479 Cobb GA 30060 5,100,000 5,065,271.23
89 330364742 Warren OH 45040 5,000,000 4,988,522.30
90 331553898 Williamson TX 78664 4,875,000 4,875,000.00
91 04-0144 Lancaster PA 17557 4,800,000 4,800,000.00
92 04-0281 Yolo CA 95695 4,650,000 4,650,000.00
93 03-0828 Riverside CA 92680 4,655,000 4,649,847.06
94 327311717 Hampton City VA 23666 4,560,000 4,541,100.13
95 03-0797 Stanislaus CA 95307 4,500,000 4,481,833.10
96 323793801 Clark NV 89115 4,450,000 4,431,961.87
97 03-0845 San Bernardino CA 92378 4,225,000 4,211,346.20
98 03-0901 Broward FL 33023 4,200,000 4,200,000.00
99 130280960 Douglas CO 80104 4,200,000 4,191,703.43
100 03-0112 Washoe NV 89502 4,175,000 4,150,066.01
101 320582827 3,950,000 3,950,000.00
101.01 320582827 Clark NV 89118
101.02 320582827 Clark NV 89118
101.03 320582827 Clark NV 89118
102 309070748 New York NY 10013 3,850,000 3,850,000.00
103 04-0143 Beaufort NC 27817 3,840,000 3,835,693.07
104 317683849 El Paso CO 80920 3,750,000 3,750,000.00
105 311230870 Gwinnett GA 30096 3,750,000 3,714,563.68
106 315732671 Cumberland NC 28314 3,575,000 3,550,707.79
107 300620460 3,500,000 3,500,000.00
107.01 300620460 Albermarle VA 22903
107.02 300620460 Albemarle VA 22902
108 317865091 Tangipahoa LA 70454 3,500,000 3,474,493.95
109 327284209 Hampshire WV 26757 3,440,000 3,428,943.50
110 332154781 Edgecombe NC 27886 3,200,000 3,200,000.00
111 305814038 Clark NV 89118 3,250,000 3,146,302.13
112 03-0706 Tarrant TX 76112 3,100,000 3,082,814.51
113 04-0263 New York NY 10022 3,000,000 3,000,000.00
114 320632176 Summit CO 80498 3,000,000 3,000,000.00
115 04-0169 El Dorado CA 95762 2,950,000 2,950,000.00
116 314161136 Aiken SC 29841 2,900,000 2,866,253.14
117 312760597 Summit OH 44087 2,700,000 2,687,904.27
118 03-0783 Chautauqua NY 14701 2,650,000 2,639,685.79
119 03-0857 Clark NV 89120 2,400,000 2,395,611.63
120 331593332 Dane WI 53562 2,400,000 2,392,329.56
121 317091638 Fort Bend TX 77479 2,000,000 2,000,000.00
122 332183897 Santa Barbara CA 93110 2,000,000 1,992,548.66
123 315514662 Riverside CA 92586 2,000,000 1,989,283.95
124 323770483 Clark NV 89115 1,800,000 1,792,387.94
125 03-0516 Utah UT 84660 1,600,000 1,595,567.36
GCCFC 04-GG1 Loan ID Control_Number Allocated Cut-off Date Balance (multi-property) Seasoning
1 09-1001116 1
2 03-0768 1
3 03-0720 5
4 04-0008 1
5 09-1001114 1
6 03-0924 0
7 28918 10
8 09-1001115 1
9 03-0358 6
10 03-0951 0
11 03-0535 6
12 28799 3
13 334381071 1
14 09-1001099B 8
15 03-0816 4
16 09-1001093C 13
16.01 09-1001093C 9,340,825.79
16.02 09-1001093C 8,624,804.30
16.03 09-1001093C 7,160,214.89
16.04 09-1001093C 5,500,346.89
16.05 09-1001093C 3,970,664.62
16.06 09-1001093C 3,938,118.19
16.07 09-1001093C 2,896,632.39
16.08 09-1001093C 2,668,807.36
16.09 09-1001093C 2,440,982.35
16.10 09-1001093C 2,278,250.20
17 03-0499 1
17.01 03-0499 7,377,603.25
17.02 03-0499 5,453,011.41
17.03 03-0499 5,212,437.43
17.04 03-0499 4,250,141.51
17.05 03-0499 4,009,566.64
17.06 03-0499 3,608,610.60
17.07 03-0499 3,079,347.13
17.08 03-0499 2,886,888.66
17.09 03-0499 2,686,409.74
17.10 03-0499 2,245,357.75
17.11 03-0499 2,084,974.79
17.12 03-0499 2,004,783.76
17.13 03-0499 1,844,400.81
17.14 03-0499 1,263,013.40
18 01-1001101B 7
19 04-0014 1
20 04-0025 1
21 09-0001106 5
21.01 09-0001106 11,411,649.68
21.02 09-0001106 3,356,367.38
21.03 09-0001106 3,356,367.38
21.04 09-0001106 2,807,144.24
21.05 09-0001106 1,995,513.15
21.06 09-0001106 1,952,795.26
21.07 09-0001106 1,769,721.53
21.08 09-0001106 1,586,646.83
21.09 09-0001106 1,525,621.26
21.10 09-0001106 1,464,596.69
21.11 09-0001106 1,342,546.55
21.12 09-0001106 1,257,111.75
21.13 09-0001106 1,220,497.41
21.14 09-0001106 951,987.90
21.15 09-0001106 817,733.64
21.16 09-0001106 793,323.42
21.17 09-0001106 671,273.28
21.18 09-0001106 640,761.49
21.19 09-0001106 488,198.57
22 329620596 4
23 302073238 10
24 316293454 7
25 04-0047 0
26 311570127 5
27 09-1001105 5
27.01 09-1001105 6,993,411.30
27.02 09-1001105 6,195,916.72
27.03 09-1001105 1,901,716.99
27.04 09-1001105 1,533,643.19
27.05 09-1001105 1,226,914.35
27.06 09-1001105 1,042,877.45
27.07 09-1001105 981,531.47
27.08 09-1001105 920,185.51
27.09 09-1001105 858,839.55
27.10 09-1001105 815,897.67
27.11 09-1001105 754,552.70
27.12 09-1001105 705,476.12
27.13 09-1001105 674,802.64
27.14 09-1001105 545,977.01
27.15 09-1001105 521,438.23
28 324840940 2
29 03-0467 1
30 03-0944 2
30.01 03-0944 12,750,179.41
30.02 03-0944 10,709,671.53
31 03-0584 4
32 04-0026 0
33 03-0360 3
34 03-0786 2
35 03-0945 2
36 313541454 8
37 03-0359 1
38 326294415 2
39 327905776 3
40 04-0168 0
41 03-0065 12
42 312012147 8
43 224241575 8
44 307724083 7
45 03-0479 4
46 28862 8
47 316914162 6
48 03-0716 2
49 04-0302 0
50 320262728 7
51 333925420 2
52 04-0258 0
53 304554535 6
54 321942022 5
55 03-0834 3
56 04-0156 0
57 04-0212 0
58 04-0040 2
59 03-0560 0
60 323802178 6
61 313361209 9
62 314702229 7
63 03-0832 1
64 309011621 0
65 03-0968 1
66 332100717 1
67 03-0956 2
68 325962624 1
69 04-0267 0
70 329394223 3
71 04-0133 0
72 03-0193 9
73 316335389 5
74 03-0959 1
75 04-0167 0
76 04-0082 0
77 04-0413 0
78 03-0671 5
79 03-0692 2
80 328321211 4
81 03-0754 3
82 316455702 6
83 232633234 9
84 332235415 2
85 331891859 3
86 333795837 2
87 329701408 3
88 317870479 7
89 330364742 1
90 331553898 1
91 04-0144 0
92 04-0281 0
93 03-0828 1
94 327311717 4
95 03-0797 4
96 323793801 4
97 03-0845 3
98 03-0901 0
99 130280960 2
100 03-0112 7
101 320582827 7
101.01 320582827 1,827,210.89
101.02 320582827 1,074,829.93
101.03 320582827 1,047,959.18
102 309070748 8
103 04-0143 1
104 317683849 7
105 311230870 9
106 315732671 7
107 300620460 6
107.01 300620460 2,437,500.00
107.02 300620460 1,062,500.00
108 317865091 6
109 327284209 3
110 332154781 3
111 305814038 9
112 03-0706 4
113 04-0263 1
114 320632176 6
115 04-0169 0
116 314161136 9
117 312760597 4
118 03-0783 2
119 03-0857 2
120 331593332 3
121 317091638 6
122 332183897 1
123 315514662 6
124 323770483 4
125 03-0516 3
GCCFC 04-GG1 Loan ID Control_Number Original Term to Maturity (mos.) Stated Remaining Term to Maturity (mos.)
1 09-1001116 83 82
2 03-0768 120 119
3 03-0720 120 115
4 04-0008 120 119
5 09-1001114 59 58
6 03-0924 120 120
7 28918 84 74
8 09-1001115 59 58
9 03-0358 120 114
10 03-0951 84 84
11 03-0535 84 78
12 28799 84 81
13 334381071 120 119
14 09-1001099B 84 76
15 03-0816 60 56
16 09-1001093C 59 46
16.01 09-1001093C
16.02 09-1001093C
16.03 09-1001093C
16.04 09-1001093C
16.05 09-1001093C
16.06 09-1001093C
16.07 09-1001093C
16.08 09-1001093C
16.09 09-1001093C
16.10 09-1001093C
17 03-0499 84 83
17.01 03-0499
17.02 03-0499
17.03 03-0499
17.04 03-0499
17.05 03-0499
17.06 03-0499
17.07 03-0499
17.08 03-0499
17.09 03-0499
17.10 03-0499
17.11 03-0499
17.12 03-0499
17.13 03-0499
17.14 03-0499
18 01-1001101B 60 53
19 04-0014 120 119
20 04-0025 120 119
21 09-0001106 120 115
21.01 09-0001106
21.02 09-0001106
21.03 09-0001106
21.04 09-0001106
21.05 09-0001106
21.06 09-0001106
21.07 09-0001106
21.08 09-0001106
21.09 09-0001106
21.10 09-0001106
21.11 09-0001106
21.12 09-0001106
21.13 09-0001106
21.14 09-0001106
21.15 09-0001106
21.16 09-0001106
21.17 09-0001106
21.18 09-0001106
21.19 09-0001106
22 329620596 120 116
23 302073238 120 110
24 316293454 120 113
25 04-0047 120 120
26 311570127 120 115
27 09-1001105 102 97
27.01 09-1001105
27.02 09-1001105
27.03 09-1001105
27.04 09-1001105
27.05 09-1001105
27.06 09-1001105
27.07 09-1001105
27.08 09-1001105
27.09 09-1001105
27.10 09-1001105
27.11 09-1001105
27.12 09-1001105
27.13 09-1001105
27.14 09-1001105
27.15 09-1001105
28 324840940 120 118
29 03-0467 120 119
30 03-0944 120 118
30.01 03-0944
30.02 03-0944
31 03-0584 120 116
32 04-0026 84 84
33 03-0360 84 81
34 03-0786 120 118
35 03-0945 120 118
36 313541454 120 112
37 03-0359 84 83
38 326294415 120 118
39 327905776 120 117
40 04-0168 120 120
41 03-0065 120 108
42 312012147 120 112
43 224241575 120 112
44 307724083 120 113
45 03-0479 120 116
46 28862 84 76
47 316914162 120 114
48 03-0716 60 58
49 04-0302 60 60
50 320262728 120 113
51 333925420 120 118
52 04-0258 120 120
53 304554535 120 114
54 321942022 120 115
55 03-0834 120 117
56 04-0156 120 120
57 04-0212 120 120
58 04-0040 120 118
59 03-0560 120 120
60 323802178 120 114
61 313361209 120 111
62 314702229 120 113
63 03-0832 60 59
64 309011621 120 120
65 03-0968 120 119
66 332100717 120 119
67 03-0956 120 118
68 325962624 120 119
69 04-0267 120 120
70 329394223 120 117
71 04-0133 120 120
72 03-0193 120 111
73 316335389 108 103
74 03-0959 120 119
75 04-0167 120 120
76 04-0082 120 120
77 04-0413 120 120
78 03-0671 120 115
79 03-0692 84 82
80 328321211 120 116
81 03-0754 120 117
82 316455702 120 114
83 232633234 120 111
84 332235415 120 118
85 331891859 120 117
86 333795837 120 118
87 329701408 180 177
88 317870479 120 113
89 330364742 120 119
90 331553898 96 95
91 04-0144 120 120
92 04-0281 120 120
93 03-0828 120 119
94 327311717 120 116
95 03-0797 120 116
96 323793801 108 104
97 03-0845 120 117
98 03-0901 120 120
99 130280960 120 118
100 03-0112 120 113
101 320582827 120 113
101.01 320582827
101.02 320582827
101.03 320582827
102 309070748 120 112
103 04-0143 120 119
104 317683849 120 113
105 311230870 120 111
106 315732671 120 113
107 300620460 120 114
107.01 300620460
107.02 300620460
108 317865091 120 114
109 327284209 120 117
110 332154781 120 117
111 305814038 180 171
112 03-0706 120 116
113 04-0263 60 59
114 320632176 120 114
115 04-0169 120 120
116 314161136 120 111
117 312760597 120 116
118 03-0783 120 118
119 03-0857 120 118
120 331593332 120 117
121 317091638 120 114
122 332183897 180 179
123 315514662 120 114
124 323770483 96 92
125 03-0516 120 117
GCCFC 04-GG1 Loan ID Control_Number Original Interest Only Term (mos.) Original Amortization Term (mos.)
1 09-1001116 35 360
2 03-0768 24 360
3 03-0720 30 360
4 04-0008 60 360
5 09-1001114 0 360
6 03-0924 0 360
7 28918 36 360
8 09-1001115 0 300
9 03-0358 120 NA
10 03-0951 17 360
11 03-0535 36 360
12 28799 0 360
13 334381071 0 360
14 09-1001099B 0 360
15 03-0816 0 700
16 09-1001093C 0 300
16.01 09-1001093C
16.02 09-1001093C
16.03 09-1001093C
16.04 09-1001093C
16.05 09-1001093C
16.06 09-1001093C
16.07 09-1001093C
16.08 09-1001093C
16.09 09-1001093C
16.10 09-1001093C
17 03-0499 0 360
17.01 03-0499
17.02 03-0499
17.03 03-0499
17.04 03-0499
17.05 03-0499
17.06 03-0499
17.07 03-0499
17.08 03-0499
17.09 03-0499
17.10 03-0499
17.11 03-0499
17.12 03-0499
17.13 03-0499
17.14 03-0499
18 01-1001101B 60 NA
19 04-0014 0 360
20 04-0025 60 360
21 09-0001106 0 360
21.01 09-0001106
21.02 09-0001106
21.03 09-0001106
21.04 09-0001106
21.05 09-0001106
21.06 09-0001106
21.07 09-0001106
21.08 09-0001106
21.09 09-0001106
21.10 09-0001106
21.11 09-0001106
21.12 09-0001106
21.13 09-0001106
21.14 09-0001106
21.15 09-0001106
21.16 09-0001106
21.17 09-0001106
21.18 09-0001106
21.19 09-0001106
22 329620596 0 300
23 302073238 12 360
24 316293454 0 360
25 04-0047 0 360
26 311570127 12 360
27 09-1001105 0 360
27.01 09-1001105
27.02 09-1001105
27.03 09-1001105
27.04 09-1001105
27.05 09-1001105
27.06 09-1001105
27.07 09-1001105
27.08 09-1001105
27.09 09-1001105
27.10 09-1001105
27.11 09-1001105
27.12 09-1001105
27.13 09-1001105
27.14 09-1001105
27.15 09-1001105
28 324840940 0 360
29 03-0467 0 360
30 03-0944 0 360
30.01 03-0944
30.02 03-0944
31 03-0584 12 348
32 04-0026 0 300
33 03-0360 0 360
34 03-0786 0 360
35 03-0945 0 360
36 313541454 0 360
37 03-0359 0 360
38 326294415 12 360
39 327905776 6 360
40 04-0168 0 360
41 03-0065 0 300
42 312012147 0 300
43 224241575 60 360
44 307724083 0 360
45 03-0479 0 360
46 28862 24 360
47 316914162 12 360
48 03-0716 0 360
49 04-0302 0 300
50 320262728 23 348
51 333925420 23 360
52 04-0258 0 360
53 304554535 0 360
54 321942022 0 240
55 03-0834 0 360
56 04-0156 0 300
57 04-0212 0 360
58 04-0040 0 360
59 03-0560 0 300
60 323802178 0 360
61 313361209 0 360
62 314702229 120 NA
63 03-0832 60 NA
64 309011621 12 360
65 03-0968 0 240
66 332100717 0 300
67 03-0956 0 360
68 325962624 0 360
69 04-0267 0 300
70 329394223 0 360
71 04-0133 24 360
72 03-0193 0 360
73 316335389 6 300
74 03-0959 0 360
75 04-0167 0 360
76 04-0082 0 360
77 04-0413 0 360
78 03-0671 0 240
79 03-0692 0 360
80 328321211 0 360
81 03-0754 0 300
82 316455702 12 360
83 232633234 12 360
84 332235415 12 360
85 331891859 48 360
86 333795837 0 360
87 329701408 0 180
88 317870479 0 360
89 330364742 0 240
90 331553898 60 360
91 04-0144 0 360
92 04-0281 0 360
93 03-0828 0 360
94 327311717 0 360
95 03-0797 0 360
96 323793801 0 360
97 03-0845 0 360
98 03-0901 0 300
99 130280960 0 360
100 03-0112 0 360
101 320582827 120 NA
101.01 320582827
101.02 320582827
101.03 320582827
102 309070748 12 360
103 04-0143 0 360
104 317683849 24 360
105 311230870 0 360
106 315732671 0 360
107 300620460 24 360
107.01 300620460
107.02 300620460
108 317865091 0 324
109 327284209 0 360
110 332154781 12 360
111 305814038 0 180
112 03-0706 0 300
113 04-0263 60 NA
114 320632176 120 NA
115 04-0169 0 360
116 314161136 0 360
117 312760597 0 336
118 03-0783 0 240
119 03-0857 0 360
120 331593332 0 360
121 317091638 24 360
122 332183897 0 180
123 315514662 0 360
124 323770483 0 360
125 03-0516 0 360
GCCFC 04-GG1 Loan ID Control_Number Remaining Interest Only Period (mos.) Remaining Amortization Term (mos.)
1 09-1001116 34 360
2 03-0768 23 360
3 03-0720 25 360
4 04-0008 59 360
5 09-1001114 0 359
6 03-0924 0 360
7 28918 26 360
8 09-1001115 0 299
9 03-0358 114 NA
10 03-0951 17 360
11 03-0535 30 360
12 28799 0 357
13 334381071 0 359
14 09-1001099B 0 352
15 03-0816 0 696
16 09-1001093C 0 287
16.01 09-1001093C
16.02 09-1001093C
16.03 09-1001093C
16.04 09-1001093C
16.05 09-1001093C
16.06 09-1001093C
16.07 09-1001093C
16.08 09-1001093C
16.09 09-1001093C
16.10 09-1001093C
17 03-0499 0 359
17.01 03-0499
17.02 03-0499
17.03 03-0499
17.04 03-0499
17.05 03-0499
17.06 03-0499
17.07 03-0499
17.08 03-0499
17.09 03-0499
17.10 03-0499
17.11 03-0499
17.12 03-0499
17.13 03-0499
17.14 03-0499
18 01-1001101B 53 NA
19 04-0014 0 359
20 04-0025 59 360
21 09-0001106 0 355
21.01 09-0001106
21.02 09-0001106
21.03 09-0001106
21.04 09-0001106
21.05 09-0001106
21.06 09-0001106
21.07 09-0001106
21.08 09-0001106
21.09 09-0001106
21.10 09-0001106
21.11 09-0001106
21.12 09-0001106
21.13 09-0001106
21.14 09-0001106
21.15 09-0001106
21.16 09-0001106
21.17 09-0001106
21.18 09-0001106
21.19 09-0001106
22 329620596 0 296
23 302073238 2 360
24 316293454 0 353
25 04-0047 0 360
26 311570127 7 360
27 09-1001105 0 355
27.01 09-1001105
27.02 09-1001105
27.03 09-1001105
27.04 09-1001105
27.05 09-1001105
27.06 09-1001105
27.07 09-1001105
27.08 09-1001105
27.09 09-1001105
27.10 09-1001105
27.11 09-1001105
27.12 09-1001105
27.13 09-1001105
27.14 09-1001105
27.15 09-1001105
28 324840940 0 358
29 03-0467 0 359
30 03-0944 0 358
30.01 03-0944
30.02 03-0944
31 03-0584 8 348
32 04-0026 0 300
33 03-0360 0 357
34 03-0786 0 358
35 03-0945 0 358
36 313541454 0 352
37 03-0359 0 359
38 326294415 10 360
39 327905776 3 360
40 04-0168 0 360
41 03-0065 0 288
42 312012147 0 292
43 224241575 52 360
44 307724083 0 353
45 03-0479 0 356
46 28862 16 360
47 316914162 6 360
48 03-0716 0 358
49 04-0302 0 300
50 320262728 16 348
51 333925420 21 360
52 04-0258 0 360
53 304554535 0 354
54 321942022 0 235
55 03-0834 0 357
56 04-0156 0 300
57 04-0212 0 360
58 04-0040 0 358
59 03-0560 0 300
60 323802178 0 354
61 313361209 0 351
62 314702229 113 NA
63 03-0832 59 NA
64 309011621 12 360
65 03-0968 0 239
66 332100717 0 299
67 03-0956 0 358
68 325962624 0 359
69 04-0267 0 300
70 329394223 0 357
71 04-0133 24 360
72 03-0193 0 351
73 316335389 1 300
74 03-0959 0 359
75 04-0167 0 360
76 04-0082 0 360
77 04-0413 0 360
78 03-0671 0 235
79 03-0692 0 358
80 328321211 0 356
81 03-0754 0 297
82 316455702 6 360
83 232633234 3 360
84 332235415 10 360
85 331891859 45 360
86 333795837 0 358
87 329701408 0 177
88 317870479 0 353
89 330364742 0 239
90 331553898 59 360
91 04-0144 0 360
92 04-0281 0 360
93 03-0828 0 359
94 327311717 0 356
95 03-0797 0 356
96 323793801 0 356
97 03-0845 0 357
98 03-0901 0 300
99 130280960 0 358
100 03-0112 0 353
101 320582827 113 NA
101.01 320582827
101.02 320582827
101.03 320582827
102 309070748 4 360
103 04-0143 0 359
104 317683849 17 360
105 311230870 0 351
106 315732671 0 353
107 300620460 18 360
107.01 300620460
107.02 300620460
108 317865091 0 318
109 327284209 0 357
110 332154781 9 360
111 305814038 0 171
112 03-0706 0 296
113 04-0263 59 NA
114 320632176 114 NA
115 04-0169 0 360
116 314161136 0 351
117 312760597 0 332
118 03-0783 0 238
119 03-0857 0 358
120 331593332 0 357
121 317091638 18 360
122 332183897 0 179
123 315514662 0 354
124 323770483 0 356
125 03-0516 0 357
GCCFC 04-GG1 Loan ID Control_Number Guarantor Letter of Credit Upfront Actual Repair Reserve
1 09-1001116 Non-recourse carveout NAP 575,000
2 03-0768 Non-recourse carveout NAP 500,000
3 03-0720 Non-recourse carveout NAP 19,675
4 04-0008 Non-recourse carveout NAP 0
5 09-1001114 None NAP 0
6 03-0924 Non-recourse carveout NAP 0
7 28918 Non-recourse carveout NAP 59,272
8 09-1001115 None NAP 0
9 03-0358 Non-recourse carveout NAP 11,500
10 03-0951 Non-recourse carveout NAP 0
11 03-0535 Non-recourse carveout NAP 26,250
12 28799 Non-recourse carveout NAP 1,250
13 334381071 Non-recourse carveout NAP 0
14 09-1001099B Non-recourse carveout Yes 0
15 03-0816 Non-recourse carveout NAP 20,375
16 09-1001093C Non-recourse carveout NAP 0
16.01 09-1001093C
16.02 09-1001093C
16.03 09-1001093C
16.04 09-1001093C
16.05 09-1001093C
16.06 09-1001093C
16.07 09-1001093C
16.08 09-1001093C
16.09 09-1001093C
16.10 09-1001093C
17 03-0499 Non-recourse carveout NAP 1,831,067
17.01 03-0499
17.02 03-0499
17.03 03-0499
17.04 03-0499
17.05 03-0499
17.06 03-0499
17.07 03-0499
17.08 03-0499
17.09 03-0499
17.10 03-0499
17.11 03-0499
17.12 03-0499
17.13 03-0499
17.14 03-0499
18 01-1001101B Non-recourse carveout NAP 0
19 04-0014 Non-recourse carveout NAP 7,800
20 04-0025 Non-recourse carveout NAP 456,625
21 09-0001106 Non-recourse carveout NAP 443,688
21.01 09-0001106
21.02 09-0001106
21.03 09-0001106
21.04 09-0001106
21.05 09-0001106
21.06 09-0001106
21.07 09-0001106
21.08 09-0001106
21.09 09-0001106
21.10 09-0001106
21.11 09-0001106
21.12 09-0001106
21.13 09-0001106
21.14 09-0001106
21.15 09-0001106
21.16 09-0001106
21.17 09-0001106
21.18 09-0001106
21.19 09-0001106
22 329620596 Non-recourse carveout NAP 0
23 302073238 Non-recourse carveout NAP 0
24 316293454 Non-recourse carveout NAP 0
25 04-0047 Non-recourse carveout NAP 533,875
26 311570127 Non-recourse carveout Yes 0
27 09-1001105 Non-recourse carveout NAP 161,000
27.01 09-1001105
27.02 09-1001105
27.03 09-1001105
27.04 09-1001105
27.05 09-1001105
27.06 09-1001105
27.07 09-1001105
27.08 09-1001105
27.09 09-1001105
27.10 09-1001105
27.11 09-1001105
27.12 09-1001105
27.13 09-1001105
27.14 09-1001105
27.15 09-1001105
28 324840940 Non-recourse carveout Yes 373,813
29 03-0467 Non-recourse carveout NAP 0
30 03-0944 Non-recourse carveout NAP 2,500
30.01 03-0944
30.02 03-0944
31 03-0584 Non-recourse carveout NAP 0
32 04-0026 Non-recourse carveout NAP 40,219
33 03-0360 Non-recourse carveout NAP 0
34 03-0786 Non-recourse carveout NAP 0
35 03-0945 Non-recourse carveout NAP 13,745
36 313541454 Non-recourse carveout NAP 42,500
37 03-0359 Non-recourse carveout NAP 0
38 326294415 Non-recourse carveout NAP 65,063
39 327905776 Non-recourse carveout NAP 0
40 04-0168 Non-recourse carveout NAP 20,313
41 03-0065 Non-recourse carveout NAP 13,750
42 312012147 Non-recourse carveout NAP 0
43 224241575 Non-recourse carveout NAP 0
44 307724083 Non-recourse carveout Yes 0
45 03-0479 Non-recourse carveout NAP 0
46 28862 Non-recourse carveout NAP 1,078,176
47 316914162 Non-recourse carveout NAP 0
48 03-0716 Non-recourse carveout NAP 3,750
49 04-0302 Non-recourse carveout NAP 0
50 320262728 Non-recourse carveout NAP 13,938
51 333925420 Non-recourse carveout Yes 0
52 04-0258 Non-recourse carveout NAP 1,563
53 304554535 Non-recourse carveout NAP 0
54 321942022 Non-recourse carveout NAP 0
55 03-0834 Non-recourse carveout NAP 10,125
56 04-0156 Non-recourse carveout NAP 0
57 04-0212 Non-recourse carveout NAP 3,438
58 04-0040 Non-recourse carveout NAP 0
59 03-0560 Non-recourse carveout NAP 0
60 323802178 Non-recourse carveout NAP 284,850
61 313361209 Non-recourse carveout NAP 32,438
62 314702229 Non-recourse carveout NAP 0
63 03-0832 Non-recourse carveout NAP 0
64 309011621 Non-recourse carveout Yes 0
65 03-0968 Non-recourse carveout NAP 0
66 332100717 Non-recourse carveout Yes 0
67 03-0956 Non-recourse carveout NAP 0
68 325962624 Non-recourse carveout NAP 0
69 04-0267 Non-recourse carveout NAP 0
70 329394223 Non-recourse carveout NAP 0
71 04-0133 Non-recourse carveout NAP 0
72 03-0193 Non-recourse carveout NAP 0
73 316335389 Non-recourse carveout NAP 0
74 03-0959 Non-recourse carveout NAP 0
75 04-0167 Non-recourse carveout NAP 0
76 04-0082 Non-recourse carveout NAP 7,500
77 04-0413 Non-recourse carveout NAP 0
78 03-0671 Non-recourse carveout NAP 6,688
79 03-0692 Non-recourse carveout NAP 28,750
80 328321211 Non-recourse carveout NAP 0
81 03-0754 Non-recourse carveout NAP 0
82 316455702 Non-recourse carveout NAP 12,400
83 232633234 Non-recourse carveout NAP 12,613
84 332235415 Non-recourse carveout NAP 16,688
85 331891859 Non-recourse carveout NAP 38,750
86 333795837 Non-recourse carveout NAP 0
87 329701408 Non-recourse carveout NAP 0
88 317870479 Non-recourse carveout NAP 0
89 330364742 Non-recourse carveout NAP 0
90 331553898 Non-recourse carveout NAP 0
91 04-0144 Non-recourse carveout NAP 0
92 04-0281 Non-recourse carveout NAP 5,988
93 03-0828 Non-recourse carveout NAP 0
94 327311717 Non-recourse carveout NAP 0
95 03-0797 Non-recourse carveout NAP 31,750
96 323793801 None NAP 0
97 03-0845 Non-recourse carveout NAP 12,500
98 03-0901 Non-recourse carveout NAP 4,625
99 130280960 Non-recourse carveout NAP 0
100 03-0112 Non-recourse carveout NAP 0
101 320582827 Non-recourse carveout NAP 15,000
101.01 320582827
101.02 320582827
101.03 320582827
102 309070748 Non-recourse carveout NAP 0
103 04-0143 Non-recourse carveout NAP 0
104 317683849 Non-recourse carveout NAP 1,000
105 311230870 Non-recourse carveout NAP 0
106 315732671 Non-recourse carveout NAP 0
107 300620460 Non-recourse carveout NAP 10,500
107.01 300620460
107.02 300620460
108 317865091 Non-recourse carveout NAP 0
109 327284209 Non-recourse carveout NAP 0
110 332154781 Non-recourse carveout NAP 0
111 305814038 Non-recourse carveout NAP 0
112 03-0706 Non-recourse carveout NAP 36,250
113 04-0263 Non-recourse carveout NAP 0
114 320632176 None NAP 0
115 04-0169 Non-recourse carveout NAP 0
116 314161136 Non-recourse carveout NAP 0
117 312760597 Non-recourse carveout NAP 0
118 03-0783 Non-recourse carveout NAP 0
119 03-0857 Non-recourse carveout NAP 0
120 331593332 Non-recourse carveout Yes 8,500
121 317091638 Non-recourse carveout Yes 1,719
122 332183897 None NAP 0
123 315514662 Non-recourse carveout NAP 0
124 323770483 None NAP 0
125 03-0516 Non-recourse carveout NAP 0
GCCFC 04-GG1 Loan ID Control_Number Upfront Actual Replacement Reserves Ongoing Actual Replacement Reserves
1 09-1001116 0 12,208
2 03-0768 0 49,029
3 03-0720 4,215 4,215
4 04-0008 0 7,734
5 09-1001114 0 0
6 03-0924 0 5,423
7 28918 0 0
8 09-1001115 0 0
9 03-0358 0 0
10 03-0951 5,448 5,448
11 03-0535 2,914,533 0
12 28799 150,000 12,772
13 334381071 3,717 3,717
14 09-1001099B 0 0
15 03-0816 0 7,258
16 09-1001093C 0 0
16.01 09-1001093C
16.02 09-1001093C
16.03 09-1001093C
16.04 09-1001093C
16.05 09-1001093C
16.06 09-1001093C
16.07 09-1001093C
16.08 09-1001093C
16.09 09-1001093C
16.10 09-1001093C
17 03-0499 0 19,629
17.01 03-0499
17.02 03-0499
17.03 03-0499
17.04 03-0499
17.05 03-0499
17.06 03-0499
17.07 03-0499
17.08 03-0499
17.09 03-0499
17.10 03-0499
17.11 03-0499
17.12 03-0499
17.13 03-0499
17.14 03-0499
18 01-1001101B 0 0
19 04-0014 7,837 7,837
20 04-0025 0 4,985
21 09-0001106 0 0
21.01 09-0001106
21.02 09-0001106
21.03 09-0001106
21.04 09-0001106
21.05 09-0001106
21.06 09-0001106
21.07 09-0001106
21.08 09-0001106
21.09 09-0001106
21.10 09-0001106
21.11 09-0001106
21.12 09-0001106
21.13 09-0001106
21.14 09-0001106
21.15 09-0001106
21.16 09-0001106
21.17 09-0001106
21.18 09-0001106
21.19 09-0001106
22 329620596 252,370 2,370
23 302073238 3,122 3,122
24 316293454 2,928 2,928
25 04-0047 0 3,910
26 311570127 1,673 1,673
27 09-1001105 0 0
27.01 09-1001105
27.02 09-1001105
27.03 09-1001105
27.04 09-1001105
27.05 09-1001105
27.06 09-1001105
27.07 09-1001105
27.08 09-1001105
27.09 09-1001105
27.10 09-1001105
27.11 09-1001105
27.12 09-1001105
27.13 09-1001105
27.14 09-1001105
27.15 09-1001105
28 324840940 3,083 3,083
29 03-0467 0 1,416
30 03-0944 4,021 2,431
30.01 03-0944
30.02 03-0944
31 03-0584 0 784
32 04-0026 0 30,871
33 03-0360 1,365 1,365
34 03-0786 1,284 1,284
35 03-0945 3,230 3,230
36 313541454 2,833 2,833
37 03-0359 1,205 1,205
38 326294415 0 0
39 327905776 1,170 1,170
40 04-0168 0 1,885
41 03-0065 370,000 29,488
42 312012147 0 0
43 224241575 2,919 2,919
44 307724083 836 836
45 03-0479 1,582 691
46 28862 0 9,397
47 316914162 2,989 2,989
48 03-0716 0 2,525
49 04-0302 0 5,009
50 320262728 25,270 0
51 333925420 978 978
52 04-0258 2,401 2,401
53 304554535 2,444 2,444
54 321942022 2,848 2,848
55 03-0834 0 1,432
56 04-0156 0 11,124
57 04-0212 0 1,084
58 04-0040 5,883 1,176
59 03-0560 0 0
60 323802178 5,779 5,779
61 313361209 30,500 1,496
62 314702229 0 0
63 03-0832 200,000 1,557
64 309011621 660 660
65 03-0968 12,207 12,207
66 332100717 1,713 1,713
67 03-0956 25,908 454
68 325962624 0 0
69 04-0267 0 0
70 329394223 1,633 1,633
71 04-0133 0 0
72 03-0193 1,804 1,804
73 316335389 0 0
74 03-0959 1,018 509
75 04-0167 391 391
76 04-0082 0 0
77 04-0413 0 0
78 03-0671 46,395 15,465
79 03-0692 0 1,179
80 328321211 654 654
81 03-0754 4,216 2,108
82 316455702 1,542 1,542
83 232633234 538 538
84 332235415 549 549
85 331891859 0 0
86 333795837 1,711 1,711
87 329701408 1,688 1,688
88 317870479 360 360
89 330364742 324 324
90 331553898 244 244
91 04-0144 0 1,813
92 04-0281 102,156 1,078
93 03-0828 810 405
94 327311717 0 0
95 03-0797 0 1,636
96 323793801 21,867 2,667
97 03-0845 483 483
98 03-0901 0 1,567
99 130280960 0 0
100 03-0112 1,400 700
101 320582827 0 0
101.01 320582827
101.02 320582827
101.03 320582827
102 309070748 358 358
103 04-0143 0 1,792
104 317683849 196 196
105 311230870 620 620
106 315732671 1,250 1,250
107 300620460 776 776
107.01 300620460
107.02 300620460
108 317865091 1,249 1,249
109 327284209 1,197 1,197
110 332154781 408 408
111 305814038 405 405
112 03-0706 0 672
113 04-0263 0 0
114 320632176 0 0
115 04-0169 1,009 336
116 314161136 565 565
117 312760597 288 288
118 03-0783 518 173
119 03-0857 18,330 0
120 331593332 0 0
121 317091638 212 212
122 332183897 0 0
123 315514662 0 0
124 323770483 9,567 1,167
125 03-0516 1,130 377
GCCFC 04-GG1 Loan ID Control_Number Upfront TI/LC Monthly TI/LC Monthly Tax Escrow Monthly Insurance Escrow
1 09-1001116 5,000,000 75,208 527,034 35,474
2 03-0768 29,596,526 0 854,276 151,263
3 03-0720 350,676 29,398 180,048 32,322
4 04-0008 2,421,364 52,804 75,672 16,667
5 09-1001114 0 0 0 0
6 03-0924 45,202 111,869 100,082 13,063
7 28918 17,358,838 0 296,954 205,944
8 09-1001115 0 0 0 0
9 03-0358 0 0 68,216 68,157
10 03-0951 0 50,000 114,839 10,533
11 03-0535 16,441,190 0 1,391,085 140,000
12 28799 4,919,934 104,167 377,083 22,452
13 334381071 10,214 10,214 59,932 31,780
14 09-1001099B 0 0 0 0
15 03-0816 200,000 43,548 54,596 16,616
16 09-1001093C 0 0 0 0
16.01 09-1001093C
16.02 09-1001093C
16.03 09-1001093C
16.04 09-1001093C
16.05 09-1001093C
16.06 09-1001093C
16.07 09-1001093C
16.08 09-1001093C
16.09 09-1001093C
16.10 09-1001093C
17 03-0499 655,297 37,747 100,183 11,529
17.01 03-0499
17.02 03-0499
17.03 03-0499
17.04 03-0499
17.05 03-0499
17.06 03-0499
17.07 03-0499
17.08 03-0499
17.09 03-0499
17.10 03-0499
17.11 03-0499
17.12 03-0499
17.13 03-0499
17.14 03-0499
18 01-1001101B 0 0 0 0
19 04-0014 432,878 12,803 55,243 6,834
20 04-0025 1,743,375 0 83,928 15,486
21 09-0001106 0 0 219,745 18,698
21.01 09-0001106
21.02 09-0001106
21.03 09-0001106
21.04 09-0001106
21.05 09-0001106
21.06 09-0001106
21.07 09-0001106
21.08 09-0001106
21.09 09-0001106
21.10 09-0001106
21.11 09-0001106
21.12 09-0001106
21.13 09-0001106
21.14 09-0001106
21.15 09-0001106
21.16 09-0001106
21.17 09-0001106
21.18 09-0001106
21.19 09-0001106
22 329620596 25,000 25,000 63,050 4,706
23 302073238 0 0 70,530 0
24 316293454 6,250 6,250 48,836 2,649
25 04-0047 0 13,882 31,138 4,586
26 311570127 173,185 0 10,382 3,690
27 09-1001105 0 0 127,687 11,065
27.01 09-1001105
27.02 09-1001105
27.03 09-1001105
27.04 09-1001105
27.05 09-1001105
27.06 09-1001105
27.07 09-1001105
27.08 09-1001105
27.09 09-1001105
27.10 09-1001105
27.11 09-1001105
27.12 09-1001105
27.13 09-1001105
27.14 09-1001105
27.15 09-1001105
28 324840940 9,167 9,167 53,555 3,223
29 03-0467 415,938 0 28,600 4,732
30 03-0944 0 0 37,735 9,054
30.01 03-0944
30.02 03-0944
31 03-0584 0 1,870 43,410 2,546
32 04-0026 0 13,943 26,519 18,172
33 03-0360 39,824 8,623 34,255 2,716
34 03-0786 8,561 8,561 27,000 3,750
35 03-0945 12,500 12,500 52,981 1,250
36 313541454 0 0 11,776 4,697
37 03-0359 807,889 5,871 24,572 3,134
38 326294415 0 12,000 0 8,509
39 327905776 0 0 21,485 1,835
40 04-0168 0 8,318 37,100 2,000
41 03-0065 0 0 15,130 13,583
42 312012147 0 0 0 0
43 224241575 0 0 14,019 3,552
44 307724083 5,014 5,014 7,684 1,917
45 03-0479 7,693 3,846 7,021 1,465
46 28862 166,667 181,818 223,815 12,354
47 316914162 0 0 34,675 6,799
48 03-0716 0 9,475 28,989 3,626
49 04-0302 0 0 27,387 10,000
50 320262728 0 0 5,088 1,113
51 333925420 0 0 30,366 1,281
52 04-0258 67,716 7,204 21,001 2,306
53 304554535 6,400 6,400 11,606 1,493
54 321942022 0 0 9,782 2,316
55 03-0834 0 7,292 6,131 1,908
56 04-0156 0 0 0 0
57 04-0212 0 7,228 13,500 2,800
58 04-0040 0 0 17,945 2,998
59 03-0560 0 2,101 19,250 803
60 323802178 0 0 12,543 3,670
61 313361209 0 0 3,248 0
62 314702229 0 0 0 0
63 03-0832 0 5,000 8,971 1,715
64 309011621 88,000 8,000 7,893 594
65 03-0968 0 0 8,340 3,042
66 332100717 10,000 10,000 12,789 1,377
67 03-0956 5,486 2,743 7,353 1,707
68 325962624 0 0 0 0
69 04-0267 0 0 0 0
70 329394223 0 0 5,651 1,855
71 04-0133 0 0 9,609 4,074
72 03-0193 4,509 4,509 10,399 5,221
73 316335389 0 0 0 0
74 03-0959 746 373 2,023 1,576
75 04-0167 2,610 2,610 3,568 878
76 04-0082 150,000 4,222 14,510 0
77 04-0413 0 0 5,460 0
78 03-0671 0 0 5,544 14,080
79 03-0692 0 0 15,566 403
80 328321211 114,000 950 6,440 873
81 03-0754 8,433 4,216 10,652 2,759
82 316455702 1,042 1,042 4,913 1,739
83 232633234 6,667 6,667 7,272 1,775
84 332235415 2,000 2,000 3,164 466
85 331891859 0 0 11,759 1,272
86 333795837 2,400 2,400 6,746 565
87 329701408 0 0 8,201 3,943
88 317870479 1,667 1,667 3,974 424
89 330364742 0 0 5,360 871
90 331553898 0 0 6,947 0
91 04-0144 0 0 0 0
92 04-0281 8,190 4,092 4,858 4,681
93 03-0828 2,980 1,490 4,810 874
94 327311717 0 10,000 3,521 983
95 03-0797 0 3,273 5,447 0
96 323793801 0 0 4,141 1,694
97 03-0845 0 0 3,366 799
98 03-0901 0 2,611 7,267 1,578
99 130280960 0 0 0 0
100 03-0112 4,124 2,062 3,177 792
101 320582827 0 0 0 0
101.01 320582827
101.02 320582827
101.03 320582827
102 309070748 1,333 1,333 5,943 708
103 04-0143 0 0 0 0
104 317683849 2,500 2,500 3,526 483
105 311230870 2,500 2,500 4,573 429
106 315732671 0 0 4,431 1,039
107 300620460 0 0 3,259 633
107.01 300620460
107.02 300620460
108 317865091 2,500 2,500 2,136 2,520
109 327284209 1,667 1,667 1,854 634
110 332154781 0 0 1,823 418
111 305814038 0 0 3,043 388
112 03-0706 20,000 1,344 6,191 1,600
113 04-0263 0 0 0 0
114 320632176 0 0 0 0
115 04-0169 1,713 1,713 2,520 417
116 314161136 0 0 1,998 794
117 312760597 1,250 1,250 2,745 396
118 03-0783 24,200 0 3,162 0
119 03-0857 21,306 0 2,845 0
120 331593332 0 0 0 696
121 317091638 0 0 3,792 757
122 332183897 0 0 0 0
123 315514662 291 291 2,002 503
124 323770483 0 0 1,781 726
125 03-0516 1,069 1,069 1,116 202
GCCFC 04-GG1 Loan ID Control_Number Late Grace Period Default Grace Period Environmental Insurance
1 09-1001116 0 0 NAP
2 03-0768 0 0 NAP
3 03-0720 0 0 NAP
4 04-0008 0 0 NAP
5 09-1001114 0 0 NAP
6 03-0924 0 0 NAP
7 28918 0 0 NAP
8 09-1001115 0 0 NAP
9 03-0358 0 0 NAP
10 03-0951 0 0 NAP
11 03-0535 0 0 NAP
12 28799 0 0 NAP
13 334381071 5 5 NAP
14 09-1001099B 0 0 NAP
15 03-0816 0 0 NAP
16 09-1001093C 0 0
16.01 09-1001093C NAP
16.02 09-1001093C NAP
16.03 09-1001093C NAP
16.04 09-1001093C NAP
16.05 09-1001093C NAP
16.06 09-1001093C NAP
16.07 09-1001093C NAP
16.08 09-1001093C NAP
16.09 09-1001093C NAP
16.10 09-1001093C NAP
17 03-0499 0 0
17.01 03-0499 NAP
17.02 03-0499 NAP
17.03 03-0499 NAP
17.04 03-0499 NAP
17.05 03-0499 NAP
17.06 03-0499 NAP
17.07 03-0499 NAP
17.08 03-0499 NAP
17.09 03-0499 NAP
17.10 03-0499 NAP
17.11 03-0499 NAP
17.12 03-0499 NAP
17.13 03-0499 NAP
17.14 03-0499 NAP
18 01-1001101B 0 0 NAP
19 04-0014 0 0 NAP
20 04-0025 0 0 NAP
21 09-0001106 0 0
21.01 09-0001106 NAP
21.02 09-0001106 NAP
21.03 09-0001106 NAP
21.04 09-0001106 NAP
21.05 09-0001106 NAP
21.06 09-0001106 NAP
21.07 09-0001106 NAP
21.08 09-0001106 NAP
21.09 09-0001106 NAP
21.10 09-0001106 NAP
21.11 09-0001106 NAP
21.12 09-0001106 NAP
21.13 09-0001106 NAP
21.14 09-0001106 NAP
21.15 09-0001106 NAP
21.16 09-0001106 NAP
21.17 09-0001106 NAP
21.18 09-0001106 NAP
21.19 09-0001106 NAP
22 329620596 5 5 NAP
23 302073238 5 5 NAP
24 316293454 5 5 NAP
25 04-0047 0 0 NAP
26 311570127 5 5 NAP
27 09-1001105 0 0
27.01 09-1001105 NAP
27.02 09-1001105 NAP
27.03 09-1001105 NAP
27.04 09-1001105 NAP
27.05 09-1001105 NAP
27.06 09-1001105 NAP
27.07 09-1001105 NAP
27.08 09-1001105 NAP
27.09 09-1001105 NAP
27.10 09-1001105 NAP
27.11 09-1001105 NAP
27.12 09-1001105 NAP
27.13 09-1001105 NAP
27.14 09-1001105 NAP
27.15 09-1001105 NAP
28 324840940 5 5 NAP
29 03-0467 0 0 NAP
30 03-0944 0 0
30.01 03-0944 NAP
30.02 03-0944 NAP
31 03-0584 0 0 NAP
32 04-0026 0 0 NAP
33 03-0360 0 0 NAP
34 03-0786 0 0 NAP
35 03-0945 0 0 NAP
36 313541454 5 5 NAP
37 03-0359 0 0 NAP
38 326294415 5 5 NAP
39 327905776 5 5 NAP
40 04-0168 5 0 NAP
41 03-0065 0 0 NAP
42 312012147 5 5 NAP
43 224241575 5 5 NAP
44 307724083 15 5 Yes
45 03-0479 0 0 NAP
46 28862 0 0 NAP
47 316914162 5 5 NAP
48 03-0716 5 0 NAP
49 04-0302 0 0 NAP
50 320262728 5 5 NAP
51 333925420 5 5 NAP
52 04-0258 0 0 NAP
53 304554535 5 5 NAP
54 321942022 5 5 NAP
55 03-0834 0 0 NAP
56 04-0156 0 0 NAP
57 04-0212 0 0 NAP
58 04-0040 0 0 NAP
59 03-0560 0 0 NAP
60 323802178 5 5 NAP
61 313361209 5 5 NAP
62 314702229 5 5 NAP
63 03-0832 15 0 NAP
64 309011621 15 5 NAP
65 03-0968 0 0 NAP
66 332100717 5 5 NAP
67 03-0956 0 0 NAP
68 325962624 5 5 NAP
69 04-0267 0 0 NAP
70 329394223 5 5 NAP
71 04-0133 0 0 NAP
72 03-0193 0 0 NAP
73 316335389 5 5 NAP
74 03-0959 0 0 NAP
75 04-0167 0 0 NAP
76 04-0082 0 0 NAP
77 04-0413 0 0 NAP
78 03-0671 0 0 NAP
79 03-0692 0 0 NAP
80 328321211 5 5 NAP
81 03-0754 0 0 NAP
82 316455702 5 5 Yes
83 232633234 5 5 NAP
84 332235415 5 5 NAP
85 331891859 5 5 NAP
86 333795837 5 5 NAP
87 329701408 5 5 NAP
88 317870479 5 5 NAP
89 330364742 5 5 NAP
90 331553898 5 5 NAP
91 04-0144 5 5 NAP
92 04-0281 0 0 NAP
93 03-0828 0 0 NAP
94 327311717 5 5 NAP
95 03-0797 0 0 NAP
96 323793801 5 5 NAP
97 03-0845 0 0 NAP
98 03-0901 0 0 NAP
99 130280960 5 5 NAP
100 03-0112 0 0 NAP
101 320582827 5 5
101.01 320582827 NAP
101.02 320582827 NAP
101.03 320582827 NAP
102 309070748 5 5 NAP
103 04-0143 5 5 NAP
104 317683849 5 5 NAP
105 311230870 5 5 NAP
106 315732671 15 5 NAP
107 300620460 5 5
107.01 300620460 NAP
107.02 300620460 NAP
108 317865091 5 5 NAP
109 327284209 5 5 NAP
110 332154781 15 5 NAP
111 305814038 5 5 NAP
112 03-0706 0 0 NAP
113 04-0263 0 0 NAP
114 320632176 5 5 NAP
115 04-0169 3 0 NAP
116 314161136 5 5 NAP
117 312760597 5 5 NAP
118 03-0783 0 0 NAP
119 03-0857 3 0 NAP
120 331593332 5 5 NAP
121 317091638 5 5 NAP
122 332183897 5 5 NAP
123 315514662 5 5 NAP
124 323770483 5 5 NAP
125 03-0516 0 0 NAP
GCCFC 04-GG1 Loan ID Control_Number Lockbox Cash Management O&M in Place Size Units of Measure
1 09-1001116 Hard In Place NAP 586,589 sf
2 03-0768 Hard In Place Yes 2,941,646 sf
3 03-0720 Hard In Place NAP 267,015 sf
4 04-0008 Hard Springing NAP 759,650 sf
5 09-1001114 Hard In Place NAP 1,011,998 sf
6 03-0924 Hard Springing NAP 433,942 sf
7 28918 Hard In Place NAP 1,382,326 sf
8 09-1001115 Hard In Place NAP 461,298 sf
9 03-0358 Hard In Place Yes 695,138 sf
10 03-0951 Soft Springing NAP 436,075 sf
11 03-0535 Hard In Place NAP 1,149,789 sf
12 28799 Hard In Place Yes 766,329 sf
13 334381071 Hard In Place NAP 446,076 sf
14 09-1001099B Hard In Place NAP 821,724 sf
15 03-0816 Hard Springing Yes 457,990 sf
16 09-1001093C Hard In Place 2,907,608 sf
16.01 09-1001093C NAP 423,393 sf
16.02 09-1001093C NAP 431,220 sf
16.03 09-1001093C NAP 410,491 sf
16.04 09-1001093C NAP 183,288 sf
16.05 09-1001093C NAP 348,236 sf
16.06 09-1001093C NAP 294,471 sf
16.07 09-1001093C NAP 133,877 sf
16.08 09-1001093C NAP 248,963 sf
16.09 09-1001093C Yes 213,934 sf
16.10 09-1001093C NAP 219,735 sf
17 03-0499 Hard In Place 1,811,871 sf
17.01 03-0499 NAP 237,344 sf
17.02 03-0499 NAP 227,329 sf
17.03 03-0499 NAP 155,767 sf
17.04 03-0499 NAP 184,500 sf
17.05 03-0499 NAP 170,558 sf
17.06 03-0499 NAP 60,575 sf
17.07 03-0499 NAP 128,459 sf
17.08 03-0499 NAP 110,810 sf
17.09 03-0499 NAP 104,000 sf
17.10 03-0499 NAP 91,166 sf
17.11 03-0499 NAP 100,000 sf
17.12 03-0499 NAP 100,000 sf
17.13 03-0499 NAP 91,363 sf
17.14 03-0499 NAP 50,000 sf
18 01-1001101B Hard In Place NAP 580,875 sf
19 04-0014 Hard Springing Yes 359,102 sf
20 04-0025 Hard Springing NAP 644,501 sf
21 09-0001106 Hard In Place 1,137,142 sf
21.01 09-0001106 NAP 206,005 sf
21.02 09-0001106 NAP 110,000 sf
21.03 09-0001106 NAP 135,090 sf
21.04 09-0001106 NAP 76,312 sf
21.05 09-0001106 NAP 59,850 sf
21.06 09-0001106 NAP 72,283 sf
21.07 09-0001106 NAP 41,508 sf
21.08 09-0001106 Yes 37,500 sf
21.09 09-0001106 NAP 48,500 sf
21.10 09-0001106 NAP 35,079 sf
21.11 09-0001106 NAP 31,670 sf
21.12 09-0001106 NAP 41,851 sf
21.13 09-0001106 NAP 41,954 sf
21.14 09-0001106 NAP 60,000 sf
21.15 09-0001106 NAP 48,000 sf
21.16 09-0001106 NAP 25,000 sf
21.17 09-0001106 NAP 23,000 sf
21.18 09-0001106 NAP 24,040 sf
21.19 09-0001106 Yes 19,500 sf
22 329620596 No NAP Yes 237,000 sf
23 302073238 No NAP NAP 249,788 sf
24 316293454 No NAP NAP 250,998 sf
25 04-0047 Hard Springing Yes 234,623 sf
26 311570127 No NAP NAP 269,128 sf
27 09-1001105 Hard In Place 655,160 sf
27.01 09-1001105 NAP 163,964 sf
27.02 09-1001105 NAP 130,010 sf
27.03 09-1001105 Yes 61,264 sf
27.04 09-1001105 NAP 48,000 sf
27.05 09-1001105 NAP 33,065 sf
27.06 09-1001105 NAP 34,866 sf
27.07 09-1001105 Yes 12,900 sf
27.08 09-1001105 NAP 25,000 sf
27.09 09-1001105 NAP 25,091 sf
27.10 09-1001105 NAP 23,000 sf
27.11 09-1001105 Yes 20,000 sf
27.12 09-1001105 NAP 23,000 sf
27.13 09-1001105 NAP 15,000 sf
27.14 09-1001105 NAP 20,000 sf
27.15 09-1001105 NAP 20,000 sf
28 324840940 No NAP NAP 194,699 sf
29 03-0467 Soft Springing NAP 113,260 sf
30 03-0944 Soft In Place 242,479 sf
30.01 03-0944 NAP 137,648 sf
30.02 03-0944 NAP 104,831 sf
31 03-0584 Hard In Place NAP 144,465 sf
32 04-0026 Hard Springing NAP 143,009 sf
33 03-0360 Hard Springing NAP 202,450 sf
34 03-0786 Soft Springing NAP 102,729 sf
35 03-0945 Hard Springing NAP 143,815 sf
36 313541454 No NAP Yes 136 Units
37 03-0359 Hard Springing NAP 111,120 sf
38 326294415 No NAP NAP 102,931 sf
39 327905776 No NAP NAP 140,385 sf
40 04-0168 Hard Springing NAP 133,088 sf
41 03-0065 Hard In Place Yes 74 Rooms
42 312012147 No NAP NAP 94,774 sf
43 224241575 No NAP NAP 226 Units
44 307724083 No NAP NAP 67,369 sf
45 03-0479 No NAP NAP 49,538 sf
46 28862 Hard In Place Yes 563,795 sf
47 316914162 No NAP NAP 239,095 sf
48 03-0716 Hard In Place NAP 151,555 sf
49 04-0302 Hard In Place NAP 197 Rooms
50 320262728 No NAP Yes 364 Pads
51 333925420 No NAP NAP 83,805 sf
52 04-0258 Soft Springing NAP 144,077 sf
53 304554535 No NAP NAP 133,324 sf
54 321942022 No NAP NAP 201,014 sf
55 03-0834 No NAP NAP 114,539 sf
56 04-0156 Hard Springing NAP 74,161 sf
57 04-0212 Hard Springing NAP 86,734 sf
58 04-0040 Soft Springing NAP 94,096 sf
59 03-0560 No NAP NAP 84,029 sf
60 323802178 No NAP NAP 254 Units
61 313361209 No NAP Yes 359 Pads
62 314702229 No NAP NAP 19,700 sf
63 03-0832 No NAP NAP 124,521 sf
64 309011621 No NAP NAP 79,148 sf
65 03-0968 Hard Springing NAP 100 Rooms
66 332100717 No NAP NAP 73,395 sf
67 03-0956 No NAP NAP 36,310 sf
68 325962624 No NAP NAP 59,989 sf
69 04-0267 Hard In Place NAP 105,144 sf
70 329394223 No NAP Yes 98 Units
71 04-0133 No NAP NAP 144 Units
72 03-0193 Hard Springing NAP 108,216 sf
73 316335389 No NAP NAP 65,390 sf
74 03-0959 No NAP NAP 40,754 sf
75 04-0167 Soft Springing NAP 31,318 sf
76 04-0082 No NAP NAP 33,774 sf
77 04-0413 No NAP NAP 10,200 sf
78 03-0671 No NAP NAP 221 Rooms
79 03-0692 No NAP NAP 283 Pads
80 328321211 No NAP NAP 52,282 sf
81 03-0754 No NAP NAP 126,473 sf
82 316455702 No NAP NAP 122,956 sf
83 232633234 No NAP NAP 64,562 sf
84 332235415 No NAP NAP 43,901 sf
85 331891859 No NAP Yes 120 Units
86 333795837 No NAP Yes 62,224 sf
87 329701408 No NAP NAP 135,059 sf
88 317870479 No NAP NAP 43,173 sf
89 330364742 No NAP NAP 38,890 sf
90 331553898 No NAP NAP 22,500 sf
91 04-0144 No NAP NAP 435 Pads
92 04-0281 No NAP NAP 86,220 sf
93 03-0828 No NAP NAP 32,377 sf
94 327311717 No NAP NAP 49,785 sf
95 03-0797 Hard Springing NAP 130,916 sf
96 323793801 No NAP Yes 128 Units
97 03-0845 No NAP NAP 529 Units
98 03-0901 Hard Springing NAP 125,320 sf
99 130280960 No NAP NAP 17,180 sf
100 03-0112 No NAP NAP 42,050 sf
101 320582827 No NAP 96,326 sf
101.01 320582827 NAP 49,026 sf
101.02 320582827 NAP 21,700 sf
101.03 320582827 NAP 25,600 sf
102 309070748 No NAP NAP 16,500 sf
103 04-0143 No NAP NAP 430 Units
104 317683849 No NAP Yes 23,489 sf
105 311230870 No NAP NAP 29,494 sf
106 315732671 No NAP NAP 60 Units
107 300620460 No NAP 62,096 sf
107.01 300620460 Yes 49,651 sf
107.02 300620460 Yes 12,445 sf
108 317865091 No NAP Yes 74,947 sf
109 327284209 No NAP NAP 59,850 sf
110 332154781 No NAP NAP 32,800 sf
111 305814038 No NAP Yes 40,509 sf
112 03-0706 No NAP NAP 40,308 sf
113 04-0263 No NAP NAP 26,760 sf
114 320632176 No NAP NAP 69,602 sf
115 04-0169 No NAP NAP 20,160 sf
116 314161136 No NAP NAP 45,160 sf
117 312760597 No NAP NAP 23,026 sf
118 03-0783 No NAP NAP 13,813 sf
119 03-0857 No NAP NAP 47,421 sf
120 331593332 No NAP NAP 48 Units
121 317091638 No NAP Yes 25,407 sf
122 332183897 No NAP Yes 334 Pads
123 315514662 No NAP NAP 23,297 sf
124 323770483 No NAP NAP 56 Units
125 03-0516 No NAP NAP 18,074 sf
GCCFC 04-GG1 Loan ID Control_Number Originator
1 09-1001116 GSMC
2 03-0768 GCFP
3 03-0720 GCFP
4 04-0008 GCFP
5 09-1001114 GSMC / Commerzbank
6 03-0924 GCFP
7 28918 GCFP
8 09-1001115 GSMC / Commerzbank
9 03-0358 GCFP
10 03-0951 GCFP
11 03-0535 GCFP
12 28799 GCFP
13 334381071 GSMC
14 09-1001099B GSMC / Commerzbank
15 03-0816 GCFP
16 09-1001093C GSMC
16.01 09-1001093C GSMC
16.02 09-1001093C GSMC
16.03 09-1001093C GSMC
16.04 09-1001093C GSMC
16.05 09-1001093C GSMC
16.06 09-1001093C GSMC
16.07 09-1001093C GSMC
16.08 09-1001093C GSMC
16.09 09-1001093C GSMC
16.10 09-1001093C GSMC
17 03-0499 GCFP
17.01 03-0499 GCFP
17.02 03-0499 GCFP
17.03 03-0499 GCFP
17.04 03-0499 GCFP
17.05 03-0499 GCFP
17.06 03-0499 GCFP
17.07 03-0499 GCFP
17.08 03-0499 GCFP
17.09 03-0499 GCFP
17.10 03-0499 GCFP
17.11 03-0499 GCFP
17.12 03-0499 GCFP
17.13 03-0499 GCFP
17.14 03-0499 GCFP
18 01-1001101B GSMC
19 04-0014 GCFP
20 04-0025 GCFP
21 09-0001106 GSMC
21.01 09-0001106 GSMC
21.02 09-0001106 GSMC
21.03 09-0001106 GSMC
21.04 09-0001106 GSMC
21.05 09-0001106 GSMC
21.06 09-0001106 GSMC
21.07 09-0001106 GSMC
21.08 09-0001106 GSMC
21.09 09-0001106 GSMC
21.10 09-0001106 GSMC
21.11 09-0001106 GSMC
21.12 09-0001106 GSMC
21.13 09-0001106 GSMC
21.14 09-0001106 GSMC
21.15 09-0001106 GSMC
21.16 09-0001106 GSMC
21.17 09-0001106 GSMC
21.18 09-0001106 GSMC
21.19 09-0001106 GSMC
22 329620596 GSMC
23 302073238 GSMC
24 316293454 GSMC
25 04-0047 GCFP
26 311570127 GSMC
27 09-1001105 GSMC
27.01 09-1001105 GSMC
27.02 09-1001105 GSMC
27.03 09-1001105 GSMC
27.04 09-1001105 GSMC
27.05 09-1001105 GSMC
27.06 09-1001105 GSMC
27.07 09-1001105 GSMC
27.08 09-1001105 GSMC
27.09 09-1001105 GSMC
27.10 09-1001105 GSMC
27.11 09-1001105 GSMC
27.12 09-1001105 GSMC
27.13 09-1001105 GSMC
27.14 09-1001105 GSMC
27.15 09-1001105 GSMC
28 324840940 GSMC
29 03-0467 GCFP
30 03-0944 GCFP
30.01 03-0944 GCFP
30.02 03-0944 GCFP
31 03-0584 GCFP
32 04-0026 GCFP
33 03-0360 GCFP
34 03-0786 GCFP
35 03-0945 GCFP
36 313541454 GSMC
37 03-0359 GCFP
38 326294415 GSMC
39 327905776 GSMC
40 04-0168 GCFP
41 03-0065 GCFP
42 312012147 GSMC
43 224241575 GSMC
44 307724083 GSMC
45 03-0479 GCFP
46 28862 GCFP
47 316914162 GSMC
48 03-0716 GCFP
49 04-0302 GCFP
50 320262728 GSMC
51 333925420 GSMC
52 04-0258 GCFP
53 304554535 GSMC
54 321942022 GSMC
55 03-0834 GCFP
56 04-0156 GCFP
57 04-0212 GCFP
58 04-0040 GCFP
59 03-0560 GCFP
60 323802178 GSMC
61 313361209 GSMC
62 314702229 GSMC
63 03-0832 GCFP
64 309011621 GSMC
65 03-0968 GCFP
66 332100717 GSMC
67 03-0956 GCFP
68 325962624 GSMC
69 04-0267 GCFP
70 329394223 GSMC
71 04-0133 GCFP
72 03-0193 GCFP
73 316335389 GSMC
74 03-0959 GCFP
75 04-0167 GCFP
76 04-0082 GCFP
77 04-0413 GCFP
78 03-0671 GCFP
79 03-0692 GCFP
80 328321211 GSMC
81 03-0754 GCFP
82 316455702 GSMC
83 232633234 GSMC
84 332235415 GSMC
85 331891859 GSMC
86 333795837 GSMC
87 329701408 GSMC
88 317870479 GSMC
89 330364742 GSMC
90 331553898 GSMC
91 04-0144 GCFP
92 04-0281 GCFP
93 03-0828 GCFP
94 327311717 GSMC
95 03-0797 GCFP
96 323793801 GSMC
97 03-0845 GCFP
98 03-0901 GCFP
99 130280960 GSMC
100 03-0112 GCFP
101 320582827 GSMC
101.01 320582827 GSMC
101.02 320582827 GSMC
101.03 320582827 GSMC
102 309070748 GSMC
103 04-0143 GCFP
104 317683849 GSMC
105 311230870 GSMC
106 315732671 GSMC
107 300620460 GSMC
107.01 300620460 GSMC
107.02 300620460 GSMC
108 317865091 GSMC
109 327284209 GSMC
110 332154781 GSMC
111 305814038 GSMC
112 03-0706 GCFP
113 04-0263 GCFP
114 320632176 GSMC
115 04-0169 GCFP
116 314161136 GSMC
117 312760597 GSMC
118 03-0783 GCFP
119 03-0857 GCFP
120 331593332 GSMC
121 317091638 GSMC
122 332183897 GSMC
123 315514662 GSMC
124 323770483 GSMC
125 03-0516 GCFP
EXHIBIT A-1
FORM OF CLASS [A-1] [A-2] [A-3] [A-4] [A-5] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2004-GG1
CLASS [A-1] [A-2] [A-3] [A-4] [A-5] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-GG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans") and one additional mortgage loan that will not be included in the
Mortgage Pool, such pool being formed and sold by
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [___]% Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
$____________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [A-1]
May 13, 2004 [A-2] [A-3] [A-4] [A-5] Certificates as of the
Closing Date:
$____________
Cut-off Date: May 1, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
Closing Date: May 13, 2004 deducting payments of principal due on or
before such date: $[____________]
First Distribution Date: June 10, 2004
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [A-1] [A-2] [A-3] [A-4] [A-5] -___ CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association as trustee (the "Trustee", which
term includes any successor entity under the Agreement) and ABN AMRO Bank N.V.
as fiscal agent (the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be
made monthly, commencing in June 2004. During any given month, the payment date
will be the 10th day of the month, or if such 10th day is not a Business Day,
then the Business Day immediately following such 10th day, provided that the
payment date will be at least 4 Business Days following the Determination Date
(each, a "Distribution Date"), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (or, in the case of the first
Distribution Date, at the close of business on the Closing Date specified above)
( in any event, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, on) the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction
of the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall
be deemed to have agreed to keep confidential any information it obtains from
the Trustee (except that such Holder may provide any such information obtained
by it to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment (or any advance with respect thereto) on or
other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust, (ii) the purchase by the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust and (iii) the exchange by the sole remaining
Certificateholder of all of its Certificates for all of the Mortgage Loans and
REO Properties remaining in the Trust. The Agreement permits, but does not
require, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates held by such Certificateholder following the date on which the
aggregate principal balance of the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class B, Class C, Class D and Class E
Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool or
Loan REMIC as a REMIC or the Grantor Trust as a grantor trust, without the
consent of the Holders of any of the Certificates. Unless the certificate of
authentication hereon has been executed by the Certificate Registrar, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, without applying any conflicts of law principles of
such state (other than the provisions of Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL
ASSOCIATION,
as Trustee
By: __________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-3] [A-4] [A-5]
Certificates referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL
ASSOCIATION,
as Certificate Registrar
By: __________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
Dated:
_____________________________
Signature by or on behalf of
Assignor
_____________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________________________________________ for the account of
________________________________________________________________________________
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to .
This information is provided by ______________________________,
the assignee named above, or __________________________________, as its agent.
EXHIBIT A-2
FORM OF CLASS [XP] [XC]CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2004-GG1
CLASS [XP] [XC] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2004-GG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans") and one additional mortgage loan that will not be included in the
Mortgage Pool, such pool being formed and sold by
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]% Variable Initial Certificate Notional Amount of this
Certificate as of the Closing Date:
$____________
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class [XP] [XC]
May 13, 2004 Certificates as of the Closing Date:
$_____________
Cut-off Date: May 1, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
Closing Date: May 13, 2004 deducting payments of principal due on or before
such date: $[__________]
First Distribution Date: June 10, 2004
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [XP] [XC]-___ CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF
THIS CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
[FOR A REGULATION S GLOBAL CERTIFICATE: PRIOR TO THE DATE (THE "RELEASE DATE")
THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING TO
PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER THE SECURITIES
ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENTS HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT
TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional principal amount of
all the Certificates of the same Class as this Certificate (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Greenwich Capital Commercial Funding Corp. as depositor (the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association as master servicer (the "Master Servicer",
which term includes any successor entity under the Agreement), Lennar Partners,
Inc. as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), LaSalle Bank National Association as
trustee (the "Trustee", which term includes any successor entity under the
Agreement) and ABN AMRO Bank N.V. as fiscal agent (the "Fiscal Agent", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. In the event of any conflict between any provision
of this Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be
made monthly, commencing in June 2004. During any given month, the payment date
will be the 10th day of the month, or if such 10th day is not a Business Day,
then the Business Day immediately following such 10th day, provided that the
payment date will be at least 4 Business Days following the Determination Date
(each, a "Distribution Date"), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (or, in the case of the first
Distribution Date, at the close of business on the Closing Date specified above)
(in any event, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, on) the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or
other disposition (each, a "Transfer") of this Certificate or any interest
herein shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with a Transfer of a Global Certificate for any Class
of Book-Entry Non Registered Certificates to a successor Depository or to the
applicable Certificate Owner in accordance with Section 5.03 of the Agreement),
then the Certificate Registrar shall refuse to register such Transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such Transfer
substantially in the form attached as Exhibit F-1 to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A to the Agreement or as Exhibit F-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such Transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Tax
Administrator, the Trustee, the Fiscal Agent or the Certificate Registrar in
their respective capacities as such), together with the written certification(s)
as to the facts surrounding such Transfer from the Certificateholder desiring to
effect such Transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based.
Except as discussed below, an interest in a Rule 144A Global
Certificate for any Class of Book-Entry Non-Registered Certificates may not be
transferred to any Person who takes delivery other than in the form of an
interest in such Rule 144A Global Certificate. If this Certificate constitutes a
Rule 144A Global Certificate, a Transferee of an interest herein that takes
delivery for a Class of Book-Entry Non-Registered Certificates shall be deemed
to have represented and warranted that all the certifications set forth in
Exhibit F-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct.
Any interest in a Rule 144A Global Certificate for a Class of
Book-Entry Non-Registered Certificates may be transferred by the Depositor or
any Affiliate of the Depositor to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate for such Class of
Certificates upon delivery to the Certificate Registrar of (x) a certificate to
the effect that the Certificate Owner desiring to effect such Transfer is the
Depositor or an Affiliate of the Depositor and (y) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the subject Class of Certificates
to be transferred. Upon delivery to the Certificate Registrar of such
certification and such orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Rule 144A Global Certificate in respect of the subject Class
of Certificates and increase the denomination of the Regulation S Global
Certificate for such Class, by the denomination of the beneficial interest in
such Class specified in such orders and instructions, provided that no
Regulation S Restricted Certificate may be transferred to a Person who wishes to
take delivery under Regulation S. A Regulation S Restricted Certificate is any
Certificate that is not rated in one of the four highest generic ratings
categories by a Rating Agency.
Also notwithstanding the second preceding paragraph, any interest
in a Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the second paragraph of Section 5.02(b) of the Agreement
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository to direct the Trustee to debit the
account of a Depository Participant by the denomination of the transferred
interests in such Rule 144A Global Certificate. Upon delivery to the Certificate
Registrar of such certifications and/or opinions and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.
Except as provided in the next paragraph no beneficial interest
in a Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the Release Date, the Certificate Owner desiring to effect any such
Transfer shall be required to obtain from such Certificate Owner's prospective
Transferee a written certification substantially in the form set forth in
Exhibit F-2D to the Agreement certifying that such Transferee is not a United
States Securities Person. On or prior to the Release Date, beneficial interests
in the Regulation S Global Certificate for each Class of Book-Entry
Non-Registered Certificates may be held only through Euroclear or Clearstream.
The Regulation S Global Certificate for each Class of Book-Entry Non-Registered
Certificates shall be deposited with the Trustee as custodian for the Depository
and registered in the name of Cede & Co. as nominee of the Depository, provided
that no Regulation S Restricted Certificate may be transferred to a Person who
wishes to take delivery under Regulation S.
Notwithstanding the preceding paragraph, after the Release Date,
any interest in a Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor or any Affiliate
of the Depositor to any Person who takes delivery in the form of a beneficial
interest in the Rule 144A Global Certificate for such Class of Certificates upon
delivery to the Certificate Registrar of (x) a certificate to the effect that
the Certificate Owner desiring to effect such Transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, and
credit the account of a Depository Participant by a denomination of interests in
such Rule 144A Global Certificate, that is equal to the denomination of
beneficial interests in the subject Class of Certificates to be transferred.
Upon delivery to the Certificate Registrar of such certification and such orders
and instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Regulation S
Global Certificate in respect of the subject Class of Certificates being
transferred and increase the denomination of the Rule 144A Global Certificate
for such Class, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.
None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Goldman, Sachs & Co., Greenwich Capital Markets,
Inc., Banc of America Securities LLC, Credit Suisse First Boston LLC, Xxxxxx
Xxxxxxx & Co. Incorporated, Wachovia Capital Markets, LLC, the Trustee, the
Master Servicer, the Special Servicer, the Fiscal Agent, the Tax Administrator,
the Certificate Registrar and their respective Affiliates against any liability
that may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be
made to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (B) any Person who is directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code
or any similar violation of Similar Law. Except in connection with Transfer of
this Certificate to a successor Depository or to the applicable Certificate
Owner in accordance with Section 5.03 of the Agreement, the Certificate
Registrar shall refuse to register the Transfer of a Definitive Non-Registered
Certificate unless it has received from the prospective Transferee, one of the
following: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) a certification to the effect that the purchase and
holding of this Certificate or such interest herein by such prospective
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code, by reason of Sections I
and III of Prohibited Transaction Class Exemption 95-60; or (iii) a
certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee or such Certificate Owner, as the
case may be, that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. If any Transferee of this Certificate
or any interest herein does not, in connection with the subject Transfer,
deliver to the Certificate Registrar (if this Certificate constitutes a
Definitive Certificate) a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee (and in any event any owner of a
Book-Entry Certificate that is not an Investment Grade Certificate) shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or any
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Sections 406(a) and (b) and 407 of ERISA and the excise taxes
imposed on such prohibited transactions by Sections 4975(a) and (b) of the Code
(or similar violation of Similar Law). Any Transferee of a Book-Entry
Certificate that is an Investment Grade Certificate that is being acquired by or
on behalf of a Plan in reliance on the Prohibited Transaction Exemption shall be
deemed to have represented and warranted that such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, and
(Y) is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, any Sub-Servicer, any Exemption-Favored Party or any Mortgagor
with respect to Mortgage Loans constituting more than 5% of the aggregate
unamortized principal balance of all the Mortgage Loans determined as of the
Closing Date, or by any Affiliate of such Person.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall
be deemed to have agreed to keep confidential any information it obtains from
the Trustee (except that such Holder may provide any such information obtained
by it to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment (or any advance with respect thereto) on or
other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust, (ii) the purchase by the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust and (iii) the exchange by the sole remaining
Certificateholder of all of its Certificates for all of the Mortgage Loans and
REO Properties remaining in the Trust. The Agreement permits, but does not
require, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates held by such Certificateholder following the date on which the
aggregate principal balance of the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class B, Class C, Class D and Class E
Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool or
Loan REMIC as a REMIC or the Grantor Trust as a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, without applying any conflicts of law principles of
such state (other than the provisions of Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL
ASSOCIATION,
as Trustee
By: __________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [XP] [XC] Certificates referred to in
the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL
ASSOCIATION,
as Certificate Registrar
By: __________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
Dated:
_____________________________
Signature by or on behalf of
Assignor
_____________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________________________________________ for the account of
________________________________________________________________________________
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to .
This information is provided by ______________________________,
the assignee named above, or __________________________________, as its agent.
EXHIBIT A-3
FORM OF CLASS [A-6] [A-7] [B] [C][D][E] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2004-GG1
CLASS [A-6] [A-7] [B] [C] [D] [E]COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2004-GG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans") and one additional mortgage loan that will not be included in the
Mortgage Pool, such pool being formed and sold by
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]%, Subject to the Initial Certificate Principal Balance of this
Weighted Average Net Mortgage Rate Certificate as of the Closing Date:
$_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [A-6]
May 13, 2004 [A-7] [B] [C][D][E] Certificates as of the
Closing Date:
$_______________
Cut-off Date: May 1, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
Closing Date: May 13, 2004 deducting payments of principal due on or before
such date: $[________]
First Distribution Date: June 10, 2004
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [A-6] [A-7] [B] [C][D][E]-___ CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association as trustee (the "Trustee", which
term includes any successor entity under the Agreement) and ABN AMRO Bank N.V.
as fiscal agent (the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be
made monthly, commencing in June 2004. During any given month, the payment date
will be the 10th day of the month, or if such 10th day is not a Business Day,
then the Business Day immediately following such 10th day, provided that the
payment date will be at least 4 Business Days following the Determination Date
(each, a "Distribution Date"), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (or, in the case of the first
Distribution Date, at the close of business on the Closing Date specified above)
(in any event, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, on) the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction
of the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall
be deemed to have agreed to keep confidential any information it obtains from
the Trustee (except that such Holder may provide any such information obtained
by it to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment (or any advance with respect thereto) on or
other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust, (ii) the purchase by the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust and (iii) the exchange by the sole remaining
Certificateholder of all of its Certificates for all of the Mortgage Loans and
REO Properties remaining in the Trust. The Agreement permits, but does not
require, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates held by such Certificateholder following the date on which the
aggregate principal balance of the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class B, Class C, Class D and Class E
Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool or
Loan REMIC as a REMIC or the Grantor Trust as a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, without applying any conflicts of law principles of
such state (other than the provisions of Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL
ASSOCIATION,
as Trustee
By: __________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-6] [A-7] [B][C][D][E] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL
ASSOCIATION,
as Certificate Registrar
By:___________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
Dated:
_____________________________
Signature by or on behalf of
Assignor
_____________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________________________________________ for the account of
________________________________________________________________________________
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to .
This information is provided by ______________________________,
the assignee named above, or __________________________________, as its agent.
EXHIBIT A-4
FORM OF CLASS [F] [G] [H] [OEA-B1] [OEA-B2]CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2004-GG1
CLASS [F] [G] [H] [OEA-B1] [OEA-B2] COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2004-GG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans") and one additional mortgage loan that will not be included in the
Mortgage Pool, such pool being formed and sold by
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]%, Subject to the Initial Certificate Principal Balance of this
Weighted Average Net Mortgage Rate Certificate as of the Closing Date:
$________________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [F]
May 13, 2004 [G] [H] [OEA-B1] [OEA-B2] Certificates as of
the Closing Date:
$________________
Cut-off Date: May 1, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
Closing Date: May 13, 2004 deducting payments of principal due on or
before such date: $[______]
First Distribution Date: June 10, 2004
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [F] [G] [H] [OEA-B1] [OEA-B2] CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
[FOR A REGULATION S GLOBAL CERTIFICATE: PRIOR TO THE DATE (THE "RELEASE DATE")
THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING TO
PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER THE SECURITIES
ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENTS HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT
TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association as trustee (the "Trustee", which
term includes any successor entity under the Agreement) and ABN AMRO Bank N.V.
as fiscal agent (the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be
made monthly, commencing in June 2004. During any given month, the payment date
will be the 10th day of the month, or if such 10th day is not a Business Day,
then the Business Day immediately following such 10th day, provided that the
payment date will be at least 4 Business Days following the Determination Date
(each, a "Distribution Date"), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (or, in the case of the first
Distribution Date, at the close of business on the Closing Date specified above)
(in any event, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, on) the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction
of the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or
other disposition (each, a "Transfer") of this Certificate or any interest
herein shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with a Transfer of a Global Certificate for any Class
of Book-Entry Non-Registered Certificates to a successor Depository or to the
applicable Certificate Owner in accordance with Section 5.03 of the Agreement),
then the Certificate Registrar shall refuse to register such Transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such Transfer
substantially in the form attached as Exhibit F-1 to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A to the Agreement or as Exhibit F-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such Transferee is an Institutional Accredited Investor or a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Tax Administrator, the Trustee, the Fiscal Agent or the Certificate
Registrar in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
Except as discussed below, an interest in a Rule 144A Global
Certificate for any Class of Book-Entry Non-Registered Certificates may not be
transferred to any Person who takes delivery other than in the form of an
interest in such Rule 144A Global Certificate. If this Certificate constitutes a
Rule 144A Global Certificate, a Transferee of an interest herein that takes
delivery for a Class of Book-Entry Non-Registered Certificates shall be deemed
to have represented and warranted that all the certifications set forth in
Exhibit F-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct.
Any interest in a Rule 144A Global Certificate for a Class of
Book-Entry Non-Registered Certificates may be transferred by the Depositor or
any Affiliate of the Depositor to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate for such Class of
Certificates upon delivery to the Certificate Registrar of (x) a certificate to
the effect that the Certificate Owner desiring to effect such Transfer is the
Depositor or an Affiliate of the Depositor and (y) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the subject Class of Certificates
to be transferred. Upon delivery to the Certificate Registrar of such
certification and such orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Rule 144A Global Certificate in respect of the subject Class
of Certificates and increase the denomination of the Regulation S Global
Certificate for such Class, by the denomination of the beneficial interest in
such Class specified in such orders and instructions, provided that no
Regulation S Restricted Certificate may be transferred to a Person who wishes to
take delivery under Regulation S. A Regulation S Restricted Certificate is any
Certificate that is not rated in one of the four highest generic ratings
categories by a Rating Agency.
Also notwithstanding the second preceding paragraph, any interest
in a Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the second paragraph of Section 5.02(b) of the Agreement
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository to direct the Trustee to debit the
account of a Depository Participant by the denomination of the transferred
interests in such Rule 144A Global Certificate. Upon delivery to the Certificate
Registrar of such certifications and/or opinions and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.
Except as provided in the next paragraph no beneficial interest
in a Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the Release Date, the Certificate Owner desiring to effect any such
Transfer shall be required to obtain from such Certificate Owner's prospective
Transferee a written certification substantially in the form set forth in
Exhibit F-2D to the Agreement certifying that such Transferee is not a United
States Securities Person. On or prior to the Release Date, beneficial interests
in the Regulation S Global Certificate for each Class of Book-Entry
Non-Registered Certificates may be held only through Euroclear or Clearstream.
The Regulation S Global Certificate for each Class of Book-Entry Non-Registered
Certificates shall be deposited with the Trustee as custodian for the Depository
and registered in the name of Cede & Co. as nominee of the Depository, provided
that no Regulation S Restricted Certificate may be transferred to a Person who
wishes to take delivery under Regulation S.
Notwithstanding the preceding paragraph, after the Release Date,
any interest in a Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor or any Affiliate
of the Depositor to any Person who takes delivery in the form of a beneficial
interest in the Rule 144A Global Certificate for such Class of Certificates upon
delivery to the Certificate Registrar of (x) a certificate to the effect that
the Certificate Owner desiring to effect such Transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, and
credit the account of a Depository Participant by a denomination of interests in
such Rule 144A Global Certificate, that is equal to the denomination of
beneficial interests in the subject Class of Certificates to be transferred.
Upon delivery to the Certificate Registrar of such certification and such orders
and instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Regulation S
Global Certificate in respect of the subject Class of Certificates being
transferred and increase the denomination of the Rule 144A Global Certificate
for such Class, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.
None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Goldman, Sachs & Co., Greenwich Capital Markets,
Inc., Banc of America Securities LLC, Credit Suisse First Boston LLC, Xxxxxx
Xxxxxxx & Co. Incorporated, Wachovia Capital Markets, LLC, the Trustee, the
Master Servicer, the Special Servicer, the Fiscal Agent, the Tax Administrator,
the Certificate Registrar and their respective Affiliates against any liability
that may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be
made to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (B) any Person who is directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code
or any similar violation of Similar Law. Except in connection with Transfer of
this Certificate to a successor Depository or to the applicable Certificate
Owner in accordance with Section 5.03 of the Agreement, the Certificate
Registrar shall refuse to register the Transfer of a Definitive Non-Registered
Certificate unless it has received from the prospective Transferee one of the
following: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) a certification to the effect that the purchase and
holding of this Certificate or such interest herein by such prospective
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code, by reason of Sections I
and III of Prohibited Transaction Class Exemption 95-60; or (iii) a
certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee or such Certificate Owner, as the
case may be, that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. If any Transferee of this Certificate
or any interest herein does not, in connection with the subject Transfer,
deliver to the Certificate Registrar (if this Certificate constitutes a
Definitive Certificate) a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee (and in any event any owner of a
Book-Entry Certificate that is not an Investment Grade Certificate) shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or any
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Sections 406(a) and (b) and 407 of ERISA and the excise taxes
imposed on such prohibited transactions by Sections 4975(a) and (b) of the Code
(or similar violation of Similar Law). Any Transferee of a Book-Entry
Certificate that is an Investment Grade Certificate that is being acquired by or
on behalf of a Plan in reliance on the Prohibited Transaction Exemption shall be
deemed to have represented and warranted that such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, and
(Y) is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, any Sub-Servicer, any Exemption-Favored Party or any Mortgagor
with respect to Mortgage Loans constituting more than 5% of the aggregate
unamortized principal balance of all the Mortgage Loans determined as of the
Closing Date, or by any Affiliate of such Person.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall
be deemed to have agreed to keep confidential any information it obtains from
the Trustee (except that such Holder may provide any such information obtained
by it to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment (or any advance with respect thereto) on or
other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust, (ii) the purchase by the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust and (iii) the exchange by the sole remaining
Certificateholder of all of its Certificates for all of the Mortgage Loans and
REO Properties remaining in the Trust. The Agreement permits, but does not
require, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates held by such Certificateholder following the date on which the
aggregate principal balance of the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class B, Class C, Class D and Class E
Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool or
Loan REMIC as a REMIC or the Grantor Trust as a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, without applying any conflicts of law principles of
such state (other than the provisions of Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL
ASSOCIATION,
as Trustee
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [F] [G] [H] [OEA-B1] [OEA-B2]
Certificates referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL
ASSOCIATION,
as Certificate Registrar
By: _________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
Dated:
_____________________________
Signature by or on behalf of
Assignor
_____________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________________________________________ for the account of
________________________________________________________________________________
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to .
This information is provided by ______________________________,
the assignee named above, or __________________________________, as its agent.
EXHIBIT A-5
FORM OF CLASS [J] [K] [L] [M] [N] [O] [P] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2004-GG1
CLASS [J] [K] [L] [M] [N] [O] [P] COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2004-GG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans") and one additional mortgage loan that will not be included in the
Mortgage Pool, such pool being formed and sold by
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]%, Subject to the Initial Certificate Principal Balance of this
Weighted Average Net Mortgage Rate Certificate as of the Closing Date:
$_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [J]
May 13, 2004 [K] [L] [M] [N] [O] [P] Certificates as of the
Closing Date:
$________________
Cut-off Date: May 1, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
Closing Date: May 13, 2004 deducting payments of principal due on or
before such date: $[_________]
First Distribution Date: June 10, 2004
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [J] [K] [L] [M] [N] [O] [P] CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association as trustee (the "Trustee", which
term includes any successor entity under the Agreement) and ABN AMRO Bank N.V.
as fiscal agent (the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be
made monthly, commencing in June 2004. During any given month, the payment date
will be the 10th day of the month, or if such 10th day is not a Business Day,
then the Business Day immediately following such 10th day, provided that the
payment date will be at least 4 Business Days following the Determination Date
(each, a "Distribution Date"), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (or, in the case of the first
Distribution Date, at the close of business on the Closing Date specified above)
(in any event, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, on) the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction
of the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or
other disposition (each, a "Transfer") of this Certificate or any interest
herein shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with a Transfer of a Global Certificate for any Class
of Book-Entry Non-Registered Certificates to a successor Depository or to the
applicable Certificate Owner in accordance with Section 5.03 of the Agreement),
then the Certificate Registrar shall refuse to register such Transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such Transfer
substantially in the form attached as Exhibit F-1 to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A to the Agreement or as Exhibit F-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such Transferee is an Institutional Accredited Investor or a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Tax Administrator, the Trustee, the Fiscal Agent or the Certificate
Registrar in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
Except as discussed below, an interest in a Rule 144A Global
Certificate for any Class of Book-Entry Non-Registered Certificates may not be
transferred to any Person who takes delivery other than in the form of an
interest in such Rule 144A Global Certificate. If this Certificate constitutes a
Rule 144A Global Certificate, a Transferee of an interest herein that takes
delivery for a Class of Book-Entry Non-Registered Certificates shall be deemed
to have represented and warranted that all the certifications set forth in
Exhibit F-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct.
Also notwithstanding the second preceding paragraph, any interest
in a Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the second paragraph of Section 5.02(b) of the Agreement
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository to direct the Trustee to debit the
account of a Depository Participant by the denomination of the transferred
interests in such Rule 144A Global Certificate. Upon delivery to the Certificate
Registrar of such certifications and/or opinions and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Goldman, Sachs & Co., Greenwich Capital Markets,
Inc., Banc of America Securities LLC, Credit Suisse First Boston LLC, Xxxxxx
Xxxxxxx & Co. Incorporated, Wachovia Capital Markets, LLC, the Trustee, the
Master Servicer, the Special Servicer, the Fiscal Agent, the Tax Administrator,
the Certificate Registrar and their respective Affiliates against any liability
that may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be
made to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (B) any Person who is directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code
or any similar violation of Similar Law. Except in connection with Transfer of
this Certificate to a successor Depository or to the applicable Certificate
Owner in accordance with Section 5.03 of the Agreement, the Certificate
Registrar shall refuse to register the Transfer of a Definitive Non-Registered
Certificate unless it has received from the prospective Transferee one of the
following: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) a certification to the effect that the purchase and
holding of this Certificate or such interest herein by such prospective
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code, by reason of Sections I
and III of Prohibited Transaction Class Exemption 95-60; or (iii) a
certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee or such Certificate Owner, as the
case may be, that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. If any Transferee of this Certificate
or any interest herein does not, in connection with the subject Transfer,
deliver to the Certificate Registrar (if this Certificate constitutes a
Definitive Certificate) a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee (and in any event any owner of a
Book-Entry Certificate that is not an Investment Grade Certificate) shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or any
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Sections 406(a) and (b) and 407 of ERISA and the excise taxes
imposed on such prohibited transactions by Sections 4975(a) and (b) of the Code
(or similar violation of Similar Law). Any Transferee of a Book-Entry
Certificate that is an Investment Grade Certificate that is being acquired by or
on behalf of a Plan in reliance on the Prohibited Transaction Exemption shall be
deemed to have represented and warranted that such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, and
(Y) is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, any Sub-Servicer, any Exemption-Favored Party or any Mortgagor
with respect to Mortgage Loans constituting more than 5% of the aggregate
unamortized principal balance of all the Mortgage Loans determined as of the
Closing Date, or by any Affiliate of such Person.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall
be deemed to have agreed to keep confidential any information it obtains from
the Trustee (except that such Holder may provide any such information obtained
by it to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment (or any advance with respect thereto) on or
other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust, (ii) the purchase by the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust and (iii) the exchange by the sole remaining
Certificateholder of all of its Certificates for all of the Mortgage Loans and
REO Properties remaining in the Trust. The Agreement permits, but does not
require, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates held by such Certificateholder following the date on which the
aggregate principal balance of the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class B, Class C, Class D and Class E
Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool or
Loan REMIC as a REMIC or the Grantor Trust as a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, without applying any conflicts of law principles of
such state (other than the provisions of Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL
ASSOCIATION,
as Trustee
By: _________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [J] [K] [L] [M] [N] [O] [P] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL
ASSOCIATION,
as Certificate Registrar
By: __________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
Dated:
_____________________________
Signature by or on behalf of
Assignor
_____________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________________________________________ for the account of
________________________________________________________________________________
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to .
This information is provided by ______________________________,
the assignee named above, or __________________________________, as its agent.
EXHIBIT A-6
FORM OF CLASS [R-I] [R-II] CERTIFICATES
COMMERCIAL MORTGAGE TRUST 2004-GG1
CLASS [R-I] [R-II] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2004-GG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans") and one additional mortgage loan that will not be included in the
Mortgage Pool, such pool being formed and sold by
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
May 13, 2004 Certificate in the related Class: ___%
Cut-off Date: May 1, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
Closing Date: May 13, 2004 deducting payments of principal due on or before
such date: $[________]
First Distribution Date: June 10, 2004
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [R-I] [R-II]-___ CUSIP No.: _____________
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"RESIDUAL INTEREST" IN [A] [FOUR] "REAL ESTATE MORTGAGE INVESTMENT CONDUIT[S]"
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). CONSEQUENTLY, THE TRANSFER OF
THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE REGISTERED HOLDER OF
THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT
LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that _______________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate (as
specified above) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association as trustee (the "Trustee", which
term includes any successor entity under the Agreement) and ABN AMRO Bank N.V.
as fiscal agent (the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be
made monthly, commencing in June 2004. During any given month, the payment date
will be the 10th day of the month, or if such 10th day is not a Business Day,
then the Business Day immediately following such 10th day, provided that the
payment date will be at least 4 Business Days following the Determination Date
(each, a "Distribution Date"), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (or, in the case of the first
Distribution Date, at the close of business on the Closing Date specified above)
(in any event, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, on) the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or
other disposition (each, a "Transfer") of this Certificate or any interest
herein shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without
registration under the Securities Act, then the Certificate Registrar shall
refuse to register such Transfer unless it receives (and, upon receipt, may
conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such Transfer substantially in the form attached as Exhibit
F-1 to the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached as Exhibit F-2A to the Agreement;
or (ii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such 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 Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Tax Administrator, the Trustee, the Fiscal Agent or
the Certificate Registrar in their respective capacities as such), together with
the written certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Goldman, Sachs & Co., Greenwich Capital Markets, Inc., Banc of
America Securities LLC, Credit Suisse First Boston LLC, Xxxxxx Xxxxxxx & Co.
Incorporated, Wachovia Capital Markets, LLC, the Trustee, the Master Servicer,
the Special Servicer, the Fiscal Agent, the Tax Administrator, the Certificate
Registrar and their respective Affiliates against any liability that may result
if such Transfer is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be
made to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (B) any Person who is directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code
or any similar violation of Similar Law. The Certificate Registrar shall refuse
to register the Transfer of a Definitive Non-Registered Certificate unless it
has received from the prospective Transferee a certification to the effect that
such prospective Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory disposition and to execute all
instruments of transfer and to do all other things necessary in connection with
any such disposition. Each Person holding or acquiring any Ownership Interest in
this Certificate must be a Permitted Transferee and shall promptly notify the
Trustee and the Tax Administrator of any change or impending change in its
status as a Permitted Transferee. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Certificate Registrar shall
require delivery to it, and shall not register the transfer of this Certificate
until its receipt of, an affidavit and agreement substantially in the form
attached as Exhibit H-1 to the Agreement (a "Transfer Affidavit and Agreement")
from the proposed Transferee, representing and warranting, among other things,
that such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee. In addition,
the Certificate Registrar shall not register the transfer of an Ownership
Interest in this Certificate to any entity classified as a partnership under the
Code unless at the time of transfer, all of its beneficial owners are United
States Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to Transfer its Ownership Interest
herein and (y) not to Transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the Tax
Administrator written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee and the Tax Administrator the following: (a) written confirmation
from each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to withdraw,
qualify or downgrade its then-current rating of any Class of Certificates; and
(b) an opinion of counsel, in form and substance satisfactory to the Trustee and
the Tax Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not (i) cause either REMIC Pool to (A) cease
to qualify as a REMIC or (B) be subject to an entity-level tax caused by the
Transfer of a Residual Interest Certificate to a Person which is not a Permitted
Transferee, or (ii) cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Residual Interest
Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not (i) a
Disqualified Organization, (ii) any Person as to whom the transfer of this
Certificate may cause either REMIC Pool to fail to qualify as a REMIC, (iii) a
Disqualified Non-United States Tax Person, (iv) a Disqualified Partnership or
(v) a United States Tax Person with respect to whom income is attributable to a
foreign permanent establishment or fixed base (within the meaning of any
applicable income tax treaty between the United States and any foreign
jurisdiction) of a United States Tax Person.
A "Disqualified Organization" is (i) the United States, any State
or political subdivision thereof, a foreign government, an international
organization, or any agency or instrumentality of any of the foregoing, (ii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) that is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iii) rural electric and telephone
cooperatives described in Section 1381 of the Code and (iv) any other Person so
designated by the Trustee or Tax Administrator based upon an opinion of counsel
that the holding of an Ownership Interest in a Residual Interest Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest
in any Class of Certificates (other than such Person) to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of an Ownership Interest in a Residual Interest Certificate to
such Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Disqualified Non-United States Tax Person" is, with respect to
any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury regulation section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury regulation section
1.860E-1(c)(4)(ii), as a Holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
A "Disqualified Partnership" is any domestic entity classified as
a partnership under the Code, if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
A "Non-United States Tax Person" is any Person other than a
United States Tax Person. A "United States Tax Person" is a citizen or resident
of the United States, a corporation, partnership or other entity created or
organized in, or under the laws of, the United States or any political
subdivision thereof, or an estate whose income from sources without the United
States is includable in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States, or a trust if a court within the United States is able
to exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust (or to the extent provided in the Treasury regulations,
if the trust was in existence on August 20, 1996 and elected to be treated as a
United States Person), all within the meaning of Section 7701(a)(30) of the
Code.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
The Holder of this Certificate, by its acceptance hereof, shall
be deemed to have agreed to keep confidential any information it obtains from
the Trustee (except that such Holder may provide any such information obtained
by it to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment (or any advance with respect thereto) on or
other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust, (ii) the purchase by the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust and (iii) the exchange by the sole remaining
Certificateholder of all of its Certificates for all of the Mortgage Loans and
REO Properties remaining in the Trust. The Agreement permits, but does not
require, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates held by such Certificateholder following the date on which the
aggregate principal balance of the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class B, Class C, Class D and Class E
Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool or
Loan REMIC as a REMIC or the Grantor Trust as a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, without applying any conflicts of law principles of
such state (other than the provisions of Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL
ASSOCIATION,
as Trustee
By: __________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] Certificates referred to in
the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL
ASSOCIATION,
as Certificate Registrar
By: __________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
Dated:
_____________________________
Signature by or on behalf of
Assignor
_____________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________________________________________ for the account of
________________________________________________________________________________
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to .
This information is provided by ______________________________,
the assignee named above, or __________________________________, as its agent.
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2004-GG1, Commercial Mortgage Pass
Through Certificates, Series 2004-GG1 (the "Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing
Agreement dated as of May 13, 2004, relating to the above-referenced
Certificates (the "Agreement"), LaSalle Bank National Association, in its
capacity as trustee (the "Trustee"), hereby certifies as to each Mortgage Loan
subject as of the date hereof to the Agreement (except as identified in the
exception report attached hereto) that: (i) all documents specified in clauses
(a)(i) through (a)(v), (a)(vii) and (a)(viii) (without regard to the second
parenthetical in such clause (a)(viii)) of the definition of "Mortgage File",
are in its possession or the possession of a Custodian on its behalf; (ii) the
recordation/filing contemplated by Section 2.01(c) of the Agreement has been
completed (based solely on receipt by the Trustee of the particular
recorded/filed documents); (iii) all documents received by it or any Custodian
with respect to such Mortgage Loan have been reviewed by it or by such Custodian
on its behalf and (A) appear regular on their face (handwritten additions,
changes or corrections shall not constitute irregularities if initialed by the
Mortgagor), (B) appear to have been executed (where appropriate) and (C) purport
to relate to such Mortgage Loan; and (iv) based on the examinations referred to
in Section 2.02(a) of the Agreement and in this Certification and only as to the
foregoing documents, the information set forth in the Mortgage Loan Schedule
with respect to the items specified in clauses (v) and (vi)(B) of the definition
of "Mortgage Loan Schedule" accurately reflects the information set forth in the
Mortgage File.
Neither the Trustee nor any Custodian is under any duty or
obligation to inspect, review or examine any of the documents, instruments,
certificates or other papers relating to the Loans delivered to it to determine
that the same are valid, legal, effective, genuine, binding, enforceable,
sufficient or appropriate for the represented purpose or that they are other
than what they purport to be on their face. Furthermore, neither the Trustee nor
any Custodian shall have any responsibility for determining whether the text of
any assignment or endorsement is in proper or recordable form, whether the
requisite recording of any document is in accordance with the requirements of
any applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction. In performing the review contemplated herein, the
Trustee or any Custodian may rely on the Depositor as to the purported
genuineness of any such document and any signature thereon.
Capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to them in the Agreement.
Respectfully,
LASALLE BANK NATIONAL
ASSOCIATION,
as Trustee
By: __________________________________
Name:
Title:
Schedule A
Greenwich Capital Commercial Funding Corp.
Greenwich Capital Financial Products, Inc.
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Wachovia Capital Markets, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Moody's Investors Service, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Standard & Poor's Rating Services,
a division of The McGraw-Hill Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Wachovia Bank, National Association
Structured Products Servicing
0000 Xxxxxxxx Xxxxx - XXX0
Xxxxxxxxx, XX 00000-0000
Lennar Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2004-GG1
Re: Greenwich Capital Commercial Funding Corp., as
depositor, Commercial Mortgage Trust 2004-GG1,
Commercial Mortgage Pass-Through Certificates, Series
2004-GG1
In connection with the administration of the Mortgage Files held
by or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of May 13, 2004 (the "Pooling and Servicing Agreement"), by
and among Greenwich Capital Commercial Funding Corp. as depositor, the
undersigned as master servicer (the "Master Servicer"), Lennar Partners, Inc. as
special servicer (the "Special Servicer"), you as trustee (the "Trustee") and
ABN AMRO Bank N.V. as fiscal agent, the undersigned hereby requests a release of
the Mortgage File (or the portion thereof specified below) held by or on behalf
of you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Property Name: __________________________________________________
Address: _______________________________________________________
Control No.: ____________________________________________________
If only particular documents in the Mortgage File are requested,
please specify which: ___________________________________________
_________________________________________________________________
_________________________________________________________________
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned
hereby certifies that all amounts received in
connection with the Mortgage Loan that are required
to be credited to the Custodial Account pursuant to
the Pooling and Servicing Agreement, have been or
will be so credited.
______ 2. Other. (Describe) ________________________________
___________________________________________________
___________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: __________________________________
Name:
Title:
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
-----------
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2004-GG1
Re: Greenwich Capital Commercial Funding Corp., as
depositor, Commercial Mortgage Trust 2004-GG1,
Commercial Mortgage Pass-Through Certificates, Series
2004-GG1
In connection with the administration of the Mortgage Files held by or
on behalf of you as Trustee under that certain Pooling and Servicing Agreement
dated as of May 13, 2004 (the "Pooling and Servicing Agreement"), by and among
Greenwich Capital Commercial Funding Corp. as depositor, Wachovia Bank, National
Association as master servicer (the "Master Servicer"), the undersigned as
special servicer (the "Special Servicer"), you as trustee (the "Trustee") and
ABN AMRO Bank N.V. as fiscal agent, the undersigned hereby requests a release of
the Mortgage File (or the portion thereof specified below) held by or on behalf
of you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Property Name: __________________________________________________
Address: ________________________________________________________
Control No.: ____________________________________________________
If only particular documents in the Mortgage File are requested,
please specify which: ___________________________________________
_________________________________________________________________
_________________________________________________________________
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned
hereby certifies that all amounts received in
connection with the Mortgage Loan that are required
to be credited to the Custodial Account pursuant to
the Pooling and Servicing Agreement, have been or
will be so credited.
______ 2. Other. (Describe) ________________________________
___________________________________________________
___________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof (or within such
longer period as we have indicated as part of our reason for the request),
unless the Mortgage Loan has been paid in full or otherwise liquidated, in which
case the Mortgage File (or such portion thereof) will be retained by us
permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
LENNAR PARTNERS, INC.
By: _________________________
Name:
Title:
EXHIBIT E
FORM OF LOAN PAYOFF NOTIFICATION REPORT
LOAN PAYMENT NOTIFICATION REPORT
as of _____________________
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- -------------------------------
X0 X00 X00 X00 X0 X0 X00 X00 X00 X00 Servicer Estimated Information
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
Preceding
Short Fiscal
Name Scheduled Paid Current Yr. Most Expected Expected
Prospectus (When Property Loan Thru Interest Maturity DSCR Recent Yield Payment Distribution
ID Appropriate) Type State Balance Date Rate Date NCR DSCR NCF Maintenance Date Date
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------------------ -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
Scheduled Payments
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------------------ -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
Unscheduled Payment
------------------------ -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
Total: $
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
------------- ---------- -------- ----- --------- ----- ---------- ----------- ---------- ---------- ---------- --------- ----------
The Borrower has only requested the information to pay-off. This does not
indicate a definite payment.
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2004-GG1
Re: Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2004-GG1, Commercial Mortgage Pass-Through
Certificates, Series 2004-GG1, Class _____, [having an initial
aggregate [Certificate Principal Balance] [Certificate Notional
Amount] as of May 13, 2004 (the "Closing Date") of $__________]
[representing a ____% Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer
by _________________________ (the "Transferor") to __________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of May 13, 2004, between
Greenwich Capital Commercial Funding Corp., as Depositor, Wachovia Bank,
National Association, as Master Servicer, Lennar Partners, Inc., as Special
Servicer, LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V.,
as Fiscal Agent. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, and for the benefit of the Trustee and the Depositor,
that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security by means of general advertising or in any
other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"Securities Act"), would render the disposition of the Transferred
Certificates a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state
securities laws.
Very truly yours,
(Transferor)
By: _______________________________
Name:
Title:
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2004-GG1
Re: Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2004-GG1, Commercial Mortgage Pass-Through
Certificates, Series 2004-GG1, Class ___, [having an initial
aggregate [Certificate Principal Balance] [Certificate Notional
Amount] as of May 13, 2004 (the "Closing Date") of $__________]
[representing a ____% Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________________ (the "Transferor") to ____________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of May 13, 2004, among
Greenwich Capital Commercial Funding Corp., as Depositor, Wachovia Bank,
National Association, as Master Servicer, Lennar Partners, Inc., as Special
Servicer, LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V.,
as Fiscal Agent. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, and for the benefit of the Trustee and the Depositor,
that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act"), and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee is
aware that the sale to it is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Certificates for its own account
or for the account of another Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (a) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the
account of another Qualified Institutional Buyer and to whom notice is
given that the resale, pledge or transfer is being made in reliance on
Rule 144A, or (b) pursuant to another exemption from registration under
the Securities Act.
2. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement and the Trust
Fund created pursuant thereto, and (e) all related matters, that it has
requested.
3. If the Transferee proposes that the Transferred Certificates
be registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgement below.
Very truly yours,
(Transferee)
By: ________________________
Name:
Title:
Nominee Acknowledgement
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
(Nominee)
By: _________________________
Name:
Title:
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and [name of Certificate Registrar], as
Certificate Registrar, with respect to the mortgage pass-through certificates
(the "Transferred Certificates") described in the Transferee certificate to
which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of
1933, as amended, because (i) [the Transferee] [each of the Transferee's
equity owners] owned and/or invested on a discretionary basis
$______________________1 in securities (other than the excluded
securities referred to below) as of the end of such entity's most recent
fiscal year (such amount being calculated in accordance with Rule 144A)
and (ii) the Transferee satisfies the criteria in the category marked
below.
_____ Corporation, etc. The Transferee is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of
which is substantially confined to banking and is
supervised by the state or territorial banking commission
or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of
the Transferred Certificates in the case of a U.S. bank,
and not more than 18 months preceding such date of sale in
the case of a foreign bank or equivalent institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which
is supervised and examined by a state or federal authority
having supervision over any such institutions, or is a
foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of
the Transferred Certificates in the case of a U.S. savings
and loan association, and not more than 18 months
preceding such date of sale in the case of a foreign
savings and loan association or equivalent institution.
_____ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
----------------
1 Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless
Transferee or any such equity owner, as the case may be, is a dealer,
and, in that case, Transferee or such equity owner, as the case may be,
must own and/or invest on a discretionary basis at least $10,000,000 in
securities.
_____ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject
to supervision by the insurance commissioner or a similar
official or agency of a state, U.S. territory or the
District of Columbia.
_____ State or Local Plan. The Transferee is a plan established
and maintained by a state, its political subdivisions, or
any agency or instrumentality of the state or its
political subdivisions, for the benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
_____ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act of
1940.
_____ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of
Rule 144A.
_____ Other. (Please supply a brief description of the entity
and a cross-reference to the paragraph and subparagraph
under subsection (a)(1) of Rule 144A pursuant to which it
qualifies. Note that registered investment companies
should complete Annex 2 rather than this Annex 1).
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment
to or subscription by such Person, if such Person is a dealer, (iii)
bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect
to the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate
amount, the Transferee may have included securities owned by
subsidiaries of such Person, but only if such subsidiaries are
consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under such Person's
direction. However, such securities were not included if such Person is
a majority-owned, consolidated subsidiary of another enterprise and such
Person is not itself a reporting company under the Securities Exchange
Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule
144A.
___ ___ Will the Transferee be purchasing the
Yes No Transferred Certificates
only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its
own, such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods
contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the
Transferee agrees that it will furnish to such parties any updated
annual financial statements that become available on or before the date
of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in the Pooling and Servicing
Agreement pursuant to which the Transferred Certificates were issued.
___________________________________
Print Name of Transferee
By: _______________________________
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and [name of Certificate Registrar], as
Certificate Registrar, with respect to the mortgage pass-through certificates
(the "Transferred Certificates") described in the Transferee Certificate to
which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer"
as that term is defined in Rule 144A ("Rule 144A") under the Securities
Act of 1933, as amended, because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined
in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, and (ii) as marked
below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at
least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal
year. For purposes of determining the amount of securities owned by the
Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost
of those securities has been published, in which case the securities of
such entity were valued at market.
______ The Transferee owned and/or invested on a discretionary
basis $___________________ in securities (other than the
excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
______ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as
of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule
144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the same
parent or because one investment adviser is a majority owned subsidiary
of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are
part of the Transferee's Family of Investment Companies, (ii) bank
deposit notes and certificates of deposit, (iii) loan participations,
(iv) repurchase agreements, (v) securities owned but subject to a
repurchase agreement and (vi) currency, interest rate and commodity
swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or
owned by the Transferee's Family of Investment Companies, the securities
referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee will be in reliance on Rule
144A.
_____ _____ Will the Transferee be purchasing the
Yes No Transferred Certificates only for
the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its
own, such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods
contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification by
the undersigned as of the date of such purchase.
8. Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in the Pooling and Servicing
Agreement pursuant to which the Transferred Certificates were issued.
Print Name of Transferee or
Adviser
By: _______________________________
Name:
Title:
Date:
IF AN ADVISER:
_____________________________
Print Name of Transferee
Date:
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2004-GG1
Re: Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2004-GG1, Commercial Mortgage Pass-Through
Certificates, Series 2004-GG1, Class _____,[having an initial
aggregate [Certificate Principal Balance] [Certificate Notional
Amount] as of May 13, 2004 (the "Closing Date") of $__________]
[representing a ____% Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer
by _________________________ (the "Transferor") to __________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of May 13, 2004, between
Greenwich Capital Commercial Funding Corp., as Depositor, Wachovia Bank,
National Association, as Master Servicer, Lennar Partners, Inc., as Special
Servicer, LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V.,
as Fiscal Agent. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, and for the benefit of the Trustee and the Depositor,
that:
1. The Transferee is acquiring the Transferred Certificates for
its own account for investment and not with a view to or for sale or
transfer in connection with any distribution thereof, in whole or in
part, in any manner which would violate the Securities Act of 1933, as
amended (the "Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the
Securities Act or registered or qualified under any applicable state
securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class
of Certificates to which the Transferred Certificates belong, and (c)
neither a Transferred Certificate nor any security issued in exchange
therefor or in lieu thereof may be resold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold
or transferred in transactions which are exempt from such registration
and qualification and the Certificate Registrar has received: (A) a
certification from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1 to the
Pooling and Servicing Agreement and a certification from such
Certificateholder's prospective transferee substantially in the form
attached either as Exhibit F-2A to the Pooling and Servicing Agreement
or as Exhibit F-2B to the Pooling and Servicing Agreement; or (B) an
opinion of counsel satisfactory to the Trustee with respect to, among
other things, the availability of such exemption from registration under
the Securities Act, together with copies of the written certification(s)
from the transferor and/or transferee setting forth the facts
surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate or interest therein, except in
compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and
that each Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR
OTHER DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE
MADE TO (A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON
WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE
OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited
any offer to buy or accept a pledge, disposition or other transfer of
any Transferred Certificate, any interest in any Transferred Certificate
or any other similar security from any person in any manner, (c)
otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in any Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest
in any Transferred Certificate or any other similar security by means of
general advertising or in any other manner, or (e) taken any other
action with respect to any Transferred Certificate, any interest in any
Transferred Certificate or any other similar security, which (in the
case of any of the acts described in clauses (a) through (e) above)
would constitute a distribution of the Transferred Certificates under
the Securities Act, would render the disposition of the Transferred
Certificates a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of the
Transferred Certificates pursuant thereto. The Transferee will not act,
nor has it authorized or will it authorize any person to act, in any
manner set forth in the foregoing sentence with respect to any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the Pooling and Servicing Agreement and the
Trust Fund created pursuant thereto, (d) the nature, performance and
servicing of the Mortgage Loans, and (e) all related matters, that it
has requested.
6. The Transferee is an "accredited investor" as defined in any
of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities
Act or an entity in which all of the equity owners come within such
paragraphs. The Transferee has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits
and risks of an investment in the Transferred Certificates; the
Transferee has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates
be registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgement below.
Very truly yours,
___________________________________
(Transferee)
By: _______________________________
Name:
Title:
Nominee Acknowledgement
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
___________________________________
(Nominee)
By: _______________________________
Name:
Title:
EXHIBIT F-2C
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2004-GG1, Commercial Mortgage
Pass-Through Certificates, Series 2004-GG1, Class _____,
having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of May 13, 2004 (the "Closing
Date") of $__________
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer
by _________________________ (the "Transferor") to __________________________
(the "Transferee") through our respective Depository Participants of the
Transferor's beneficial ownership interest (currently maintained on the books
and records of The Depository Trust Company ("DTC") and the Depository
Participants) in the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of May 13, 2004, between Greenwich Capital
Commercial Funding Corp., as Depositor, Wachovia Bank, National Association, as
Master Servicer, Lennar Partners, Inc., as Special Servicer, LaSalle Bank
National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act"), and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee is
aware that the Transfer to it of the Transferor's interest in the
Transferred Certificates is being made in reliance on Rule 144A. The
Transferee is acquiring such interest in the Transferred Certificates
for its own account or for the account of another Qualified
Institutional Buyer.
2. The Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the
Securities Act or registered or qualified under any applicable state
securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the
Transferred Certificates and (c) no interest in the Transferred
Certificates may be resold or transferred unless (i) such Certificates
are registered pursuant to the Securities Act and registered or
qualified pursuant any applicable state securities laws, or (ii) such
interest is sold or transferred in a transaction which is exempt from
such registration and qualification and the Transferor desiring to
effect such transfer has received (A) a certificate from such
Certificate Owner's prospective transferee substantially in the form
attached as Exhibit F-2C to the Pooling and Servicing Agreement or (B)
an opinion of counsel to the effect that, among other things, such
prospective transferee is a Qualified Institutional Buyer and such
transfer may be made without registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates or any interest therein except in
compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and
that the Transferred Certificates will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR
OTHER DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE
MADE TO (A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
4. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement and the Trust
Fund created pursuant thereto, (e) any credit enhancement mechanism
associated with the Transferred Certificates, and (f) all related
matters, that it has requested.
Very truly yours,
___________________________________
(Transferee)
By: _______________________________
Name:
Title:
ANNEX 1 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and for the benefit of Greenwich Capital
Commercial Funding Corp. with respect to the mortgage pass-through certificates
being transferred in book-entry form (the "Transferred Certificates") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity acquiring interests in the Transferred
Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because (i) [the Transferee] [each of the
Transferee's equity owners] owned and/or invested on a discretionary
basis $____________2 in securities (other than the excluded securities
referred to below) as of the end of such entity's most recent fiscal
year (such amount being calculated in accordance with Rule 144A) and
(ii) the Transferee satisfies the criteria in the category marked below.
_____ Corporation, etc. The Transferee is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of
which is substantially confined to banking and is
supervised by the state or territorial banking commission
or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of
the Transferred Certificates in the case of a U.S. bank,
and not more than 18 months preceding such date of sale in
the case of a foreign bank or equivalent institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which
is supervised and examined by a state or federal authority
having supervision over any such institutions or is a
foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of
the Transferred Certificates in the case of a U.S. savings
and loan association, and not more than 18 months
preceding such date of sale in the case of a foreign
savings and loan association or equivalent institution.
----------------------
2 Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless
Transferee or any such equity owner, as the case may be, is a dealer,
and, in that case, Transferee or such equity owner, as the case may be,
must own and/or invest on a discretionary basis at least $10,000,000 in
securities.
_____ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
_____ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject
to supervision by the insurance commissioner or a similar
official or agency of a state, U.S. territory or the
District of Columbia.
_____ State or Local Plan. The Transferee is a plan established
and maintained by a state, its political subdivisions, or
any agency or instrumentality of the state or its
political subdivisions, for the benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
_____ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act of
1940, as amended.
_____ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of
Rule 144A.
_____ Other. (Please supply a brief description of the entity
and a cross-reference to the paragraph and subparagraph
under subsection (a)(1) of Rule 144A pursuant to which it
qualifies. Note that registered investment companies
should complete Annex 2 rather than this Annex 1.)
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment
to or subscription by such Person, if such Person is a dealer, (iii)
bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect
to the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate
amount, the Transferee may have included securities owned by
subsidiaries of such Person, but only if such subsidiaries are
consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under such Person's
direction. However, such securities were not included if such Person is
a majority-owned, consolidated subsidiary of another enterprise and such
Person is not itself a reporting company under the Securities Exchange
Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on the
statements made herein because one or more Transfers to the Transferee
may be in reliance on Rule 144A.
___ ___ Will the Transferee be acquiring interests in
Yes No the Transferred Certificates
only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each
case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to
a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status
of such third party has been established by the Transferee through one
or more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's acquisition of any
interest in of the Transferred Certificates will constitute a
reaffirmation of this certification as of the date of such acquisition.
In addition, if the Transferee is a bank or savings and loan as provided
above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before
the date of such acquisition, promptly after they become available.
8. Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Pooling and Servicing Agreement
pursuant to which the Transferred Certificates were issued.
___________________________________
(Transferee)
By: _______________________________
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and for the benefit of Greenwich Capital
Commercial Funding Corp. with respect to the mortgage pass-through certificates
being transferred in book-entry form (the "Transferred Certificates") as
described in the Transferee certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity acquired interests the Transferred Certificates
(the "Transferee") or, if the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act of
1933, as amended ("Rule 144A"), because the Transferee is part of a
Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined
in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and
(ii) as marked below, the Transferee alone owned and/or invested on a
discretionary basis, or the Transferee's Family of Investment Companies
owned, at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities
owned by the Transferee or the Transferee's Family of Investment
Companies, the cost of such securities was used, unless the Transferee
or any member of the Transferee's Family of Investment Companies, as the
case may be, reports its securities holdings in its financial statements
on the basis of their market value, and no current information with
respect to the cost of those securities has been published, in which
case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary
basis $___________________ in securities (other than the
excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as
of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule
144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the same
parent or because one investment adviser is a majority owned subsidiary
of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are
part of the Transferee's Family of Investment Companies, (ii) bank
deposit notes and certificates of deposit, (iii) loan participations,
(iv) repurchase agreements, (v) securities owned but subject to a
repurchase agreement and (vi) currency, interest rate and commodity
swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or
owned by the Transferee's Family of Investment Companies, the securities
referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein
because one or more Transfers to the Transferee will be in reliance on
Rule 144A.
___ ___ Will the Transferee be acquiring interests in
Yes No the Transferred Certificates
only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each
case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to
a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status
of such third party has been established by the Transferee through one
or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's acquisition of any interest
in the Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Pooling and Servicing Agreement
pursuant to which the Transferred Certificates were issued.
___________________________________
(Transferee or Adviser)
By: _______________________________
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Transferee
___________________________________
Date:
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2004-GG1, Commercial Mortgage
Pass-Through Certificates, Series 2004-GG1, Class _____,
having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of May 13, 2004 (the "Closing
Date") of $___________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer
by _________________________ (the "Transferor") to __________________________
(the "Transferee") through our respective Depository Participants of the
Transferor's beneficial ownership interest (currently maintained on the books
and records of The Depository Trust Company ("DTC") and the Depository
Participants) in the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of May 13, 2004, between Greenwich Capital
Commercial Funding Corp., as Depositor, Wachovia Bank, National Association, as
Master Servicer, Lennar Partners, Inc., as Special Servicer, LaSalle Bank
National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, that the Transferee is not a United States
Securities Person.
For purposes of this certification, "United States Securities
Person" means (i) any natural person resident in the United States, (ii) any
partnership or corporation organized or incorporated under the laws of the
United States; (iii) any estate of which any executor or administrator is a
United States Securities Person, other than any estate of which any professional
fiduciary acting as executor or administrator is a United States Securities
Person if an executor or administrator of the estate who is not a United States
Securities Person has sole or shared investment discretion with respect to the
assets of the estate and the estate is governed by foreign law, (iv) any trust
of which any trustee is a United States Securities Person, other than a trust of
which any professional fiduciary acting as trustee is a United States Securities
Person if a trustee who is not a United States Securities Person has sole or
shared investment discretion with respect to the trust assets and no beneficiary
of the trust (and no settlor if the trust is revocable) is a United States
Securities Person, (v) any agency or branch of a foreign entity located in the
United States, unless the agency or branch operates for valid business reasons
and is engaged in the business of insurance or banking and is subject to
substantive insurance or banking regulation, respectively, in the jurisdiction
where located, (vi) any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a United States Securities Person, (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the United
States, other than one held for the benefit or account of a non-United States
Securities Person by a dealer or other professional fiduciary organized,
incorporated or (if any individual) resident in the United States, (viii) any
partnership or corporation if (a) organized or incorporated under the laws of
any foreign jurisdiction and (b) formed by a United States Securities Person
principally for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
"accredited investors" (as defined in Rule 501(a)) under the United States
Securities Act of 1933, as amended (the "Securities Act"), who are not natural
persons, estates or trusts; provided, however, that the International Monetary
Fund, the International Bank for Reconstruction and Development, the
Inter-American Development Bank, the Asian Development Bank, the African
Development Bank, the United Nations and their agencies, affiliates and pension
plans, any other similar international organizations, their agencies, affiliates
and pension plans shall not constitute United States Securities Persons.
We understand that this certification is required in connection
with certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, _____
By: _________________________
As, or agent for, the
beneficial owner(s)
of the Certificates to
which this certificate relates.
EXHIBIT G
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE NON-REGISTERED CERTIFICATES)
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., Series 2004-GG1
Re: Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2004-GG1, Commercial Mortgage Pass-Through
Certificates, Series 2004-GG1, Class _____, having an initial
aggregate [Certificate Principal Balance] [Certificate Notional
Amount] as of May 13, 2004 (the "Issue Date") of $___________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of May 13, 2004, between Greenwich Capital
Commercial Funding Corp., as Depositor, Wachovia Bank, National Association, as
Master Servicer, Lennar Partners, Inc., as Special Servicer, LaSalle Bank
National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferee is not (a) an employee benefit plan subject to the fiduciary
responsibility provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code"), or a governmental plan (as defined in Section 3(32) of
ERISA) subject to any federal, state or local law ("Similar Law") which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (each
a "Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by reason
of investment in the entity by such a Plan or Plans and the application of
Department of Labor Regulation ss. 2510.3-101), other than, except in the case
of a Residual Interest Certificate, an insurance company using the assets of its
general account under circumstances whereby the purchase and holding of
Privately Offered Certificates by such insurance company would be exempt from
the prohibited transaction provisions of ERISA and the Code under Sections I and
III of Prohibited Transaction Class Exemption 95-60.
2. Except in the case of the Residual Interest Certificates, which may not be
transferred to a Plan or any person acting on behalf of or using the assets of a
Plan, the Transferee understands that if the Transferee is a Person referred to
in 1(a) or (b) above, such Transferee is required to provide to the Certificate
Registrar an opinion of counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such Transferee or transferee will not constitute
or result in a non-exempt "prohibited transaction" within the meaning of ERISA,
Section 4975 of the Code or any Similar Law, and will not subject the Trustee,
the Certificate Registrar, the Master Servicer, the Special Servicer, the
Initial Purchaser or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any such
Similar Law) in addition to those set forth in the Pooling and Servicing
Agreement, which Opinion of Counsel shall not be at the expense of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Initial
Purchaser, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Transferee hereby executes this ERISA representation
letter on the ___ day of [______________], 20[__].
Very truly yours,
_________________________________
[The Transferee]
By: _____________________________
Name:
Title:
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING RESIDUAL INTEREST CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO
SECTIONS 860D(a)(6)(A) and 860E(e)(4) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2004-GG1, Commercial Mortgage
Pass-Through Certificates, Series 2004-GG1 (the
"Certificates"), issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of
May 13, 2004, among Greenwich Capital Commercial Funding Corp.
as Depositor, Wachovia Bank, National Association as Master
Servicer, Lennar Partners, Inc. as Special Servicer, LaSalle
Bank National Association as Trustee and ABN AMRO Bank N.V. as
Fiscal Agent
STATE OF )
) ss.:
COUNTY OF )
I, _________________________, under penalties of perjury, declare
that, to the best of my knowledge and belief, the following representations are
true, correct and complete, and being first sworn, depose and say that:
1. I am a __________________________ of ___________________________
(the "Purchaser"), on behalf of which I have the authority to make this
affidavit.
2. The Purchaser is acquiring [Class R-I] [Class R-II] Certificates
representing ________% of the residual interest in [a] [each of four] real
estate mortgage investment conduit[s] ([each,] a "REMIC") designated as ["REMIC
I" and the "Loan REMICs"] ["REMIC II"], [respectively], relating to the
Certificates for which an election is to be made under Section 860D of the
Internal Revenue Code of 1986 (the "Code").
3. The Purchaser is not a "Disqualified Organization" (as defined
below), and that the Purchaser is not acquiring the [Class R-I] [Class R-II]
Certificates for the account of, or as agent or nominee of, or with a view to
the transfer of direct or indirect record or beneficial ownership thereof, to a
Disqualified Organization. For the purposes hereof, a Disqualified Organization
is any of the following: (i) the United States, (ii) any state or political
subdivision thereof, (iii) any foreign government, (iv) any international
organization, (v) any agency or instrumentality of any of the foregoing, (vi)
any tax-exempt organization (other than a cooperative described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
unless such organization is subject to the tax imposed by Section 511 of the
Code, (vii) any organization described in Section 1381(a)(2)(C) of the Code, or
(viii) any other entity designated as a "disqualified organization" by relevant
legislation amending the REMIC Provisions and in effect at or proposed to be
effective as of the time of determination. In addition, a corporation will not
be treated as an instrumentality of the United States or of any state or
political subdivision thereof if all of its activities are subject to tax
(except for the Federal Home Loan Mortgage Corporation) and a majority of its
board of directors is not selected by such governmental unit. The terms "United
States" and "international organization" shall have the meanings set forth in
Section 7701 of the Code.
4. The Purchaser is not a foreign permanent establishment or a fixed
base (within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
5. The Purchaser will not cause the income from the [Class R-I]
[Class R-II] Certificates to be attributable to a foreign permanent
establishment or fixed base (within the meaning of any applicable income tax
treaty between the United States and any foreign jurisdiction) of a United
States Tax Person.
6. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
[Class R-I] [Class R-II] Certificates to a Disqualified Organization.
7. No purpose of the acquisition of the [Class R-I] [Class R-II]
Certificates is to impede the assessment or collection of tax.
8. Check one of the following:
/ / The present value of the anticipated tax liabilities associated with holding
the [Class R-I] [Class R-II] Certificate does not exceed the sum of:
(i) the present value of any consideration given to the
Purchaser to acquire such [Class R-I] [Class R-II]
Certificate;
(ii) the present value of the expected future distributions
on such [Class R-I] [Class R-II] Certificate; and
(iii) the present value of the anticipated tax savings
associated with holding such [Class R-I] [Class R-II]
Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Purchaser is assumed to pay tax at the
highest rate currently specified in Section 11(b) of the Code (but the tax rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Purchaser has been subject to the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by the
Purchaser.
/ / The transfer of the [Class R-I] [Class R-II] Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Purchaser is an "eligible corporation," as defined
in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i),
as to which income from the [Class R-I] [Class R-II]
Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Purchaser's two fiscal years preceding the year of the
transfer, the Purchaser had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Purchaser within the meaning of U.S.
Treasury Regulations Section 1.860E-1(c)(6)(ii)) in
excess of $100 million and net assets in excess of $10
million;
(iii) the Purchaser will transfer the [Class R-I] [Class R-II]
Certificate only to another "eligible corporation," as
defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations; and
(iv) the Purchaser determined the consideration paid to it to
acquire the [Class R-I] [Class R-II] Certificate based
on reasonable market assumptions (including, but not
limited to, borrowing and investment rates, prepayment
and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the
Purchaser) that it has determined in good faith. ? None
of the above.
9. [Check the statement that applies]
/ / The Purchaser is a "United States person" as defined in Section 7701(a) of
the Code and the regulations promulgated thereunder (the Purchaser's U.S.
taxpayer identification number is __________). The Purchaser is not classified
as a partnership under the Code (or, if so classified, all of its beneficial
owners are United States persons);
or
/ / The Purchaser is not a United States person. However, the Purchaser:
(a) conducts a trade or business within the United States
and, for purposes of Treasury regulation section 1.860G-3(a)(3), is
subject to tax under Section 882 of the Code;
(b) understands that, for purposes of Treasury regulation
section 1.860E-1(c)(4)(ii), as a holder of a [Class R-I] [Class R-II]
Certificate for United States federal income tax purposes, it may incur
tax liabilities in excess of any cash flows generated by such [Class
R-I] [Class R-II] Certificate;
(c) intends to pay the taxes associated with holding a
[Class R-I] [Class R-II] Certificate;
(d) is not classified as a partnership under the Code (or,
if so classified, all of its beneficial owners either satisfy clauses
(a), (b) and (c) of this sentence or are United States persons); and
(e) has furnished the Transferor and the Trustee with an
effective IRS Form W-8ECI or successor form and will update such form as
may be required under the applicable Treasury regulations.
9. The Purchaser historically has paid its debts as they
have come due and intends to pay its debts as they come due in the
future and the Purchaser intends to pay taxes associated with holding
the [Class R-I] [Class R-II] Certificates as they become due.
10. The Purchaser understands that it may incur tax
liabilities with respect to the [Class R-I] [Class R-II] Certificates in
excess of any cash flows generated by such Certificates.
11. The Purchaser will not transfer the [Class R-I] [Class
R-II] Certificates to any person or entity as to which the Purchaser has
not received an affidavit substantially in the form of this affidavit or
to any person or entity as to which the Purchaser has actual knowledge
that the requirements set forth in paragraphs 3, 4, 5, 7 or 9 hereof are
not satisfied, or to any person or entity with respect to which the
Purchaser has not (at the time of such transfer) satisfied the
requirements under the Code to conduct a reasonable investigation of the
financial condition of such person or entity (or its current beneficial
owners if such person or entity is classified as a partnership under the
Code).
12. The Purchaser agrees to such amendments of the Pooling
and Servicing Agreement as may be required to further effectuate the
prohibition against transferring the [Class R-I] [Class R-II]
Certificates to a Disqualified Organization, an agent thereof or a
person that does not satisfy the requirements of paragraphs 4, 5, 7 and
9.
13. The Purchaser consents to the designation of the
Trustee as the agent of the Tax Matters Person of [REMIC I and the Loan
REMICs] [REMIC II] pursuant to Section 10.01(d) of the Pooling and
Servicing Agreement.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to
be duly executed on its behalf by its duly authorized officer this ___ day of
__________________.
By: _________________________
Name:
Title:
Personally appeared before me ___________________________, known
or proved to me to be the same person who executed the foregoing instrument and
to be a_______________________ of the Purchaser, and acknowledged to me that
he/she executed the same as his/her free act and deed and as the free act and
deed of the Purchaser.
Subscribed and sworn before me
this
____ day of _______________.
Notary Public
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
REGARDING RESIDUAL INTEREST CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2004-GG1
Re: Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2004-GG1, Commercial Mortgage Pass-Through
Certificates, Series 2004-GG1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer
by _________________ (the "Transferor") to _________________ (the "Transferee")
of [Class R-I] [Class R-II] Certificates evidencing a ____% Percentage Interest
in such Class (the "Residual Interest Certificates"). The Certificates,
including the Residual Interest Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of May 13, 2004 (the "Pooling and
Servicing Agreement"), among Greenwich Capital Commercial Funding Corp., as
depositor, Wachovia Bank, National Association as master servicer, Lennar
Partners, Inc. as special servicer, LaSalle Bank National Association as trustee
and ABN AMRO Bank N.V. as fiscal agent. All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer
of the Residual Interest Certificates by the Transferor to the
Transferee is or will be to impede the assessment or collection of any
tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached
to the Pooling and Servicing Agreement as Exhibit H-1. The Transferor
does not know or believe that any representation contained therein is
false.
3. The Transferor has at the time of this transfer
conducted a reasonable investigation of the financial condition of the
Transferee (or the beneficial owners of the Transferee if it is
classified as a partnership under the Code) as contemplated by Treasury
regulation section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no
significant evidence to indicate that the Transferee will not continue
to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Residual Interest Certificates may
not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes
associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
___________________________________
(Transferor)
By: _______________________________
Name:
Title:
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGEMENT
[Date]
Standard & Poor's Ratings Services
a division of The McGraw-Hill Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Surveillance Department
Moody's Investors Service, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
Pooling and Servicing Agreement, dated as of May 13, 2004 and relating to
Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2004-GG1,
Commercial Mortgage Pass-Through Certificates, Series 2004-GG1 (the
"Agreement"). Capitalized terms used but not otherwise defined herein shall have
respective meanings assigned to them in the Agreement.
Notice is hereby given that the Holders of Certificates
evidencing a majority of the Voting Rights allocated to the Controlling Class
have designated ________________ to serve as the Special Servicer under the
Agreement.
The designation of __________________ as Special Servicer will
become final if certain conditions are met and you deliver to _________________,
the trustee under the Agreement (the "Trustee"), written confirmation that if
the person designated to become the Special Servicer were to serve as such, such
event would not result in the qualification, downgrade or withdrawal of the
rating or ratings assigned by you to one or more Classes of the Certificates.
Accordingly, such confirmation is hereby requested as soon as possible.
Please acknowledge receipt of this notice by signing the enclosed
copy of this notice where indicated below and returning it to the Trustee, in
the enclosed stamped self-addressed envelope.
Very truly yours,
LASALLE BANK NATIONAL
ASSOCIATION,
as Trustee
By: _______________________________
Name:
Title:
Receipt acknowledged:
STANDARD & POOR'S RATINGS SERVICES
By: ________________________________
Name:
Title:
Date:
MOODY'S INVESTORS SERVICE, INC.
By: ________________________________
Name:
Title:
Date:
FITCH, INC.
By: ________________________________
Name:
Title:
Date:
EXHIBIT I-2
FORM OF ACKNOWLEDGEMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
[FISCAL AGENT]
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2004-GG1, Commercial Mortgage
Pass-Through Certificates, Series 2004-GG1
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement,
dated as of May 13, 2004, relating to Greenwich Capital Commercial Funding
Corp., Commercial Mortgage Trust 2004-GG1, Commercial Mortgage Pass-Through
Certificates, Series 2004-GG1 (the "Agreement"), the undersigned hereby agrees
with all the other parties to the Agreement that the undersigned shall serve as
Special Servicer under, and as defined in, the Agreement. The undersigned hereby
acknowledges that, as of the date hereof, it is and shall be a party to the
Agreement and bound thereby to the full extent indicated therein in the capacity
of Special Servicer. The undersigned hereby makes, as of the date hereof, the
representations and warranties set forth in Section 3.24 of the Agreement, with
the following corrections with respect to type of entity and jurisdiction of
organization: ____________________.
___________________________________
By: _______________________________
Name:
Title:
EXHIBIT J
RESERVED
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH SUB-SERVICING AGREEMENTS ARE IN
EFFECT OR BEING NEGOTIATED AS OF THE CLOSING DATE
Holliday Xxxxxxxx Xxxxxx, LLP
DePaul Real Estate Investment Group LLC
GMAC Commercial Mortgage Corporation
Northmarq Capital, Inc.
L.J. Melody & Company of Texas, LP
CFC Advisory Services Limited Partnership
Bernard Financial Corporation
Washington Mutual Bank, FA
EXHIBIT L
FORM OF DEFEASANCE CERTIFICATION
FORM OF NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For loans (a) having a balance of $20,000,000 or less or a balance of less
than 5% of outstanding pool balance, whichever is less) or (b) that are
not then one of the ten largest (measured by unpaid principal balance) in
the mortgage pool
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: _____________________________________, in its capacity as master
servicer (the "Master Servicer") under the Pooling and Servicing
Agreement dated as of May 13, 2004 (the "Pooling and Servicing
Agreement"), among Greenwich Capital Commercial Funding Corp. as
Depositor, the Master Servicer, Lennar Partners, Inc. as special
servicer, LaSalle Bank National Association as trustee (the "Trustee"),
and ABN AMRO Bank N.V. as fiscal agent.
Date: _________, 20___
Re: Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust 2004-GG1, Commercial Mortgage Pass-Through
Certificates Series 2004-GG1
Mortgage loan (the "Mortgage Loan") identified by loan number
_____ on the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged [Property] [Properties]
identified on the Mortgage Loan Schedule by the following name[s]: _____________
________________________________________________________________________________
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we hereby:
1. Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
____ a full defeasance of the payments scheduled to be due in
respect of the entire unpaid principal balance of the
Mortgage Loan; or
____ a partial defeasance of the payments scheduled to be due
in respect of a portion of the unpaid principal balance
of the Mortgage Loan that represents ___% of the entire
unpaid principal balance of the Mortgage Loan and, under
the Mortgage, has an allocated loan amount of
$____________ or _______% of the entire unpaid principal
balance;
2. Certify as to each of the following, and any additional
explanatory notes set forth on Exhibit A hereto:
a. The Mortgage Loan documents permit the defeasance, and
the terms and conditions for defeasance specified therein were satisfied
in all material respects in completing the defeasance.
b. The defeasance was consummated on __________, 20__.
c. The defeasance collateral consists of securities that
(i) constitute "government securities" as defined in Section 2(a)(16) of
the Investment Company Act of 1940 as amended (15 U.S.C. 80a-1), (ii)
are listed as "Qualified Investments for `AAA' Financings" under
Paragraphs 1, 2 or 3 of "Cash Flow Approach" in Standard & Poor's Public
Finance Criteria 2000, as amended to the date of the defeasance, (iii)
are rated `AAA' by Standard & Poor's, (iv) if they include a principal
obligation, provide for a predetermined fixed dollar amount of principal
due at maturity that cannot vary or change, and (v) are not subject to
prepayment, call or early redemption. Such securities have the
characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
d. The Master Servicer received an opinion of counsel
(from counsel approved by Master Servicer in accordance with the
Servicing Standard) that the defeasance will not result in an Adverse
REMIC Event.
e. The Master Servicer determined that the defeasance
collateral will be owned by an entity (the "Defeasance Obligor") as to
which one of the statements checked below is true:
____ the related Mortgagor was a Single-Purpose Entity (as
defined in Standard & Poor's Structured Finance Ratings
Real Estate Finance Criteria, as amended to the date of
the defeasance (the "S&P Criteria")) as of the date of
the defeasance, and after the defeasance owns no assets
other than the defeasance collateral and real property
securing Mortgage Loan included in the pool.
____ the related Mortgagor designated a Single-Purpose Entity
(as defined in the S&P Criteria) to own the defeasance
collateral; or
____ the Master Servicer designated a Single-Purpose Entity
(as defined in the S&P Criteria) established for the
benefit of the Trust to own the defeasance collateral.
f. The Master Servicer received a broker or similar
confirmation of the credit, or the accountant's letter described below
contained statements that it reviewed a broker or similar confirmation
of the credit, of the defeasance collateral to an Eligible Account (as
defined in the S&P Criteria) in the name of the Defeasance Obligor,
which account is maintained as a securities account by the Trustee
acting as a securities intermediary.
g. As securities intermediary, the Trustee is obligated to
make the scheduled payments on the Mortgage Loan from the proceeds of
the defeasance collateral directly to the Master Servicer's collection
account in the amounts and on the dates specified in the Mortgage Loan
documents or, in a partial defeasance, the portion of such scheduled
payments attributed to the allocated loan amount for the real property
defeased, increased by any defeasance premium specified in the Mortgage
Loan documents (the "Scheduled Payments").
h. The Master Servicer received from the Mortgagor written
confirmation from a firm of independent certified public accountants,
who were approved by the Master Servicer in accordance with the
Servicing Standard, stating that (i) revenues from principal and
interest payments made on the defeasance collateral (without taking into
account any earnings on reinvestment of such revenues) will be
sufficient to timely pay each of the Scheduled Payments after the
defeasance including the payment in full of the Mortgage Loan (or the
allocated portion thereof in connection with a partial defeasance) on
its Maturity Date (or, in the case of an ARD Loan, on its Anticipated
Repayment Date or on the date when any open prepayment period set forth
in the related Mortgage Loan documents commences), (ii) the revenues
received in any month from the defeasance collateral will be applied to
make Scheduled Payments within four (4) months after the date of
receipt, and (iii) interest income from the defeasance collateral to the
Defeasance Obligor in any calendar or fiscal year will not exceed such
Defeasance Obligor's interest expense for the Mortgage Loan (or the
allocated portion thereof in a partial defeasance) for such year.
i. The Master Servicer received opinions from counsel, who
were approved by the Master Servicer in accordance with the Servicing
Standard, that (i) the agreements executed by the Mortgagor and/or the
Defeasance Obligor in connection with the defeasance are enforceable
against them in accordance with their terms, and (ii) the Trustee will
have a perfected, first priority security interest in the defeasance
collateral described above.
j. The agreements executed in connection with the
defeasance (i) permit reinvestment of proceeds of the defeasance
collateral only in Permitted Investments (as defined in the S&P
Criteria), (ii) permit release of surplus defeasance collateral and
earnings on reinvestment to the Defeasance Obligor or the Mortgagor only
after the Mortgage Loan has been paid in full, if any such release is
permitted, (iii) prohibit any subordinate liens against the defeasance
collateral, and (iv) provide for payment from sources other than the
defeasance collateral or other assets of the Defeasance Obligor of all
fees and expenses of the securities intermediary for administering the
defeasance and the securities account and all fees and expenses of
maintaining the existence of the Defeasance Obligor.
k. The entire unpaid principal balance of the Mortgage
Loan as of the date of defeasance was $___________. Such Mortgage Loan
(a) has a balance of $20,000,000 or less or a balance of less than 5% of
outstanding pool balance or (b) is not then one of the ten largest
(measured by unpaid principal balance) in the mortgage pool, in each
such case, as of the date of the most recent Distribution Date Statement
received by us (the "Current Report").
3. The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully and
partially defeased Mortgage Loans to $__________________, which is _____% of the
aggregate unpaid principal balance of the Mortgage Pool as of the date of the
Current Report.
4. Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance described above and that originals or copies of
such agreements, instruments and opinions have been transmitted to the Trustee
for placement in the related Mortgage File or, to the extent not required to be
part of the related Mortgage File, are in the possession of the Master Servicer
as part of the Master Servicer's servicing file.
5. Certify and confirm that the determinations and certifications
described above were rendered in accordance with the Servicing Standard set
forth in, and the other applicable terms and conditions of, the Pooling and
Servicing Agreement; and
6. Certify that the individual under whose hand the Master
Servicer has caused this Notice and Certification to be executed did constitute
a Servicing Officer as of the date of the defeasance described above.
7. Agree to provide copies of all items listed in Exhibit B to
you upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice
and Certification to be executed as of the date captioned above.
[MASTER SERVICER]
By: _________________________
Name:
Title:
EXHIBIT M
FORM OF BACKUP CERTIFICATION TO BE PROVIDED TO THE DEPOSITOR
EXHIBIT M-1
FORM OF TRUSTEE BACKUP CERTIFICATION
Re: Greenwich Capital Commercial Funding Corp., as
depositor, Commercial Mortgage Trust 2004-GG1 (the
"Trust") Commercial
Mortgage Pass-Through Certificates, Series 2004-GG1
(the "Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement,
dated as of May 13, 2004 (the "Pooling and Servicing Agreement"), between
Greenwich Capital Commercial Funding Corp. as depositor (the "Depositor"),
LaSalle Bank National Association as trustee (the "Trustee"), Wachovia Bank,
National Association as master servicer (the "Master Servicer"), Lennar
Partners, Inc. as special servicer (the "Special Servicer") and ABN AMRO Bank
N.V. as fiscal agent, relating to the Certificates, the undersigned, a
____________________ of the Trustee and on behalf of the Trustee, hereby
certifies to the ____________________ as the officer executing the subject
certification pursuant to the Sarbanes-Oxley Act of 2002 (the "Certifying
Person") and its partners, representatives, affiliates, members, managers,
directors, officers, employees and agents, to the extent that the following
information is within our normal area of responsibilities and duties under the
Pooling and Servicing Agreement, and with the knowledge and intent that they
will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the
fiscal year _______, and all reports on Form 8-K filed in respect of
periods included in the year covered by that annual report, of the
Trust;
2. To the best of my knowledge, and assuming the accuracy
of the statements required to be made in the Master Servicer Backup
Certification and in the Special Servicer Backup Certification (in each
case, to the extent that such statements are relevant to the statements
made in this Trustee Backup Certification), that the information in such
reports relating to distributions on and/or characteristics (including
Certificate Principal Balances, Notional Amounts and Pass-Through Rates)
of the Certificates, taken as a whole, does not contain any untrue
statement of material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading as of the last day of the period
covered by the subject annual report on Form 10-K;
3. To the best of my knowledge, the information in such
reports relating to distributions on and/or characteristics (including
Certificate Principal Balances, Notional Amounts and Pass-Through Rates)
of the Certificates includes all information of such type required to be
included in the Distribution Date Statement for the relevant period
covered by the subject annual report on Form 10-K; and
4. To the best of my knowledge, such information includes
all Servicer Reports and Additional Designated Servicing Information
provided to the Trustee by the Master Servicer and/or the Special
Servicer hereunder.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF TRUSTEE]
By: _______________________________
Name:
Title:
EXHIBIT M-2
FORM OF MASTER SERVICER BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: Greenwich Capital Commercial Funding Corp., as
depositor, Commercial Mortgage Trust 2004-GG1 (the
"Trust") Commercial Mortgage Pass-Through Certificates,
Series 2004-GG1 (the "Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement,
dated as of May 13, 2004 (the "Pooling and Servicing Agreement"), between
Greenwich Capital Commercial Funding Corp., as depositor (the "Depositor"),
LaSalle Bank National Association as trustee (the "Trustee"), Wachovia Bank,
National Association as master servicer (the "Master Servicer"), Lennar
Partners, Inc. as special servicer (the "Special Servicer") and ABN AMRO Bank
N.V. as fiscal agent, relating to the Certificates, the undersigned, a
____________________ of the Master Servicer and on behalf of the Master
Servicer, hereby certifies to the ____________________ as the officer executing
the subject certification pursuant to the Sarbanes-Oxley Act of 2002 (the
"Certifying Person") and its partners, representatives, affiliates, members,
managers, directors, officers, employees and agents, to the extent that the
following information is within our normal area of responsibilities and duties
under the Pooling and Servicing Agreement, and with the knowledge and intent
that they will rely upon this certification, that:
1. I have reviewed all the Servicer Reports and Additional
Designated Servicing Information delivered by the Master Servicer to the
Trustee for the fiscal year [___];
2. Based on my knowledge, and assuming the accuracy of the
statements required to be made in the Special Servicer Backup
Certification (to the extent that such statements are relevant to the
statements made in this Master Servicer Backup Certification), the
information in the Servicer Reports and Additional Designated Servicing
Information delivered by the Master Servicer to the Trustee for such
year relating to servicing information, including information relating
to actions of the Master Servicer and/or payments and other collections
on and characteristics of the Mortgage Loans and REO Properties, taken
as a whole, does not contain any untrue statement of material fact or
omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading as of the last day of such fiscal year;
3. Based on my knowledge, and assuming the accuracy of the
statements required to be made in the Special Servicer Backup
Certification (to the extent that such statements are relevant to the
statements made in this Master Servicer Backup Certification), the
information in the Servicer Reports and Additional Designated Servicing
Information delivered by the Master Servicer to the Trustee for such
year relating to servicing information, including information relating
to actions of the Master Servicer and/or payments and other collections
on and characteristics of the Mortgage Loans and REO Properties,
includes all information of such type required to be provided by the
Master Servicer to the Trustee under the Pooling and Servicing Agreement
for such year;
4. I am responsible for reviewing the activities performed
by the Master Servicer under the Pooling and Servicing Agreement and,
based upon the review required under the Pooling and Servicing
Agreement, and except as disclosed in the Annual Performance
Certification delivered by the Master Servicer for such year, the Master
Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement; and
5. I have disclosed to the accountants that are to deliver
the Annual Accountants' Report in respect of the Master Servicer with
respect to such year all significant deficiencies relating to the Master
Servicer's compliance with the minimum servicing standards in accordance
with a review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard as set
forth in the Pooling and Servicing Agreement.
The foregoing certifications under clauses 2. and 3. above assume
that the following sections and parts of the Prospectus Supplement did not, as
of the date thereof or as of the Closing Date, contain any untrue statement of a
material fact regarding the Mortgage Loan Seller Matters (as defined below) or
omit to state any material fact regarding the Mortgage Loan Seller Matters
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading: "Summary of Prospectus
Supplement--The Underlying Mortgage Loans and the Mortgaged Real Properties,"
"Risk Factors--Risks Related to the Underlying Mortgage Loans" and "Description
of the Mortgage Pool" and Annex A and Annex B to the Prospectus Supplement.
"Mortgage Loan Seller Matters" as used in the preceding sentence shall mean the
description of the Mortgage Loans, the Mortgaged Properties and the Mortgagors.
In addition, notwithstanding the foregoing certifications under
clauses 2. and 3. above, the Master Servicer does not make any certification
under such clauses 2. and 3. above with respect to the information in the
Servicer Reports and Additional Designated Servicing Information delivered by
the Master Servicer to the Trustee referred to in such clauses 2. and 3. above
that is in turn dependent upon information provided by the Special Servicer
under the Pooling and Servicing Agreement, beyond the certification actually
provided by the Special Servicer pursuant to Section 8.15(d) of the Pooling and
Servicing Agreement. In addition, notwithstanding the foregoing certifications
under clauses 2. and 3. above, the Master Servicer does not make any
certification under such clauses 2. and 3. above with respect to the information
in the Servicer Reports and Additional Designated Servicing Information
delivered by the Master Servicer to the Trustee referred to in such clauses 2.
and 3. above that is in turn dependent upon information provided by the 2004-GG1
Master Servicer under the 2004-GG1 PSA, beyond any certification actually
provided by the 2004-GG1 Master Servicer.
Further, notwithstanding the foregoing certifications, the
Master Servicer does not make any certification under the foregoing clauses 1.
through 5. that is in turn dependent upon information required to be provided by
any Sub-Servicer identified on Exhibit K to the Pooling and Servicing Agreement,
acting under a Sub-Servicing Agreement that the Master Servicer entered into in
connection with the issuance of the Certificates, or upon the performance by any
such Sub-Servicer of its obligations pursuant to any such Sub-Servicing
Agreement, in each case beyond the respective backup certifications actually
provided by such Sub-Servicer to the Master Servicer with respect to the
information that is the subject of such certification.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF MASTER SERVICER]
By: _______________________________
Name:
Title:
EXHIBIT M-3
FORM OF SPECIAL SERVICER BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: Greenwich Capital Commercial Funding Corp., as
depositor, Commercial Mortgage Trust 2004-GG1 (the
"Trust") Commercial Mortgage Pass-Through Certificates,
Series 2004-GG1 (the "Certificates")
I, ________________ a ____________________ of [NAME OF SPECIAL
SERVICER] ("[INSERT SHORT NAME]") on behalf of [INSERT SHORT NAME], as Special
Servicer, hereby certify to [Greenwich Capital Commercial Funding Corp. (the
"Depositor")] [or, if certifying person is not the Depositor, INSERT NAME OF
CERTIFYING PERSON] and its affiliates, members, managers, directors and
officers, to the extent that the following information is within the Special
Servicer's area of responsibilities and duties under the Pooling and Servicing
Agreement, and with the knowledge and intent that they will rely upon this
certification, that:
1. I am responsible for reviewing the activities performed
by the Special Servicer under the Pooling and Servicing Agreement, dated
as of May 13, 2004, relating to Greenwich Capital Commercial Funding
Corp., as depositor, Commercial Mortgage Trust 2004-GG1, Commercial
Mortgage Pass-Through Certificates, Series 2004-GG1 (the "Pooling and
Servicing Agreement"), and, based upon the review performed as required
under Section 3.13 of the Pooling and Servicing Agreement, and except as
disclosed on Schedule I hereto, the Special Servicer, to my knowledge,
has fulfilled its material obligations under the Pooling and Servicing
Agreement, including the provision of all reports, if any, required to
be submitted by the Special Servicer to the Master Servicer and the
Trustee thereunder, and that, to the knowledge of the Special Servicer,
such reports do not contain any material misstatements or omissions; and
2. I have disclosed to the Special Servicer's certified
public accountants all significant deficiencies, to my knowledge,
relating to the compliance by the Special Servicer with the minimum
servicing standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage Bankers or
similar standard as set forth in the Pooling and Servicing Agreement.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF SPECIAL SERVICER]
By: _______________________________
Name:
Title:
EXHIBIT N
FORM OF [DIRECTING HOLDER] [CONTROLLING CLASS DIRECTING HOLDER] [COMPANION LOAN
NOTEHOLDER] CONFIDENTIALITY AGREEMENT
[Date]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--Greenwich Capital
Commercial Funding Corp., as depositor, Commercial Mortgage Trust 2004-GG1]
[Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx-XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2004-GG1]
[Lennar Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2004-GG1]
Re: Greenwich Capital Commercial Funding Corp., as
depositor, Commercial Mortgage Trust 2004-GG1,
Commercial Mortgage Pass-Through Certificates, Series
2004-GG1
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of May 13, 2004 (the "Pooling and Servicing Agreement"),
between Greenwich Capital Commercial Funding Corp., as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer, Lennnar
Partners, Inc., as special servicer, LaSalle Bank National Association, as
trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent, with respect
to Greenwich Capital Commercial Funding Corp., as depositor, Commercial Mortgage
Trust 2004-GG1, Commercial Mortgage Pass-Through Certificates, Series 2004-GG1
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is the [Directing Holder][Controlling Class
Directing Holder][Companion Loan Directing Holder for [ ] loan].
2. The undersigned will keep the information (the "Information")
obtained from time to time pursuant to the Pooling and Servicing Agreement
confidential, and such Information will not, without the prior written consent
of the [Trustee] [Master Servicer] [Special Servicer], be disclosed by the
undersigned or by its officers, directors, partners, employees, agents or
representatives (collectively, the "Representatives") in any manner whatsoever,
in whole or in part (other than for the purpose of communicating with the
Controlling Class); provided that the undersigned may provide all or any part of
the Information to any other person or entity that holds or is contemplating the
purchase of any Certificate or interest therein, but only if such person or
entity confirms in writing such ownership interest or prospective ownership
interest and agrees to keep it confidential.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities Exchange Act
of 1934, as amended, or would require registration of any Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee, the Master Servicer, the Special Servicer and the Trust
Fund for any loss, liability or expense incurred thereby with respect to any
such breach by the undersigned or any of its Representatives.
To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Pooling and Servicing
Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
[DIRECTING HOLDER]
[CONTROLLING CLASS DIRECTING
HOLDER] [COMPANION LOAN
NOTEHOLDER]
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
