EXHIBIT 4
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X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP., Depositor
GMAC COMMERCIAL MORTGAGE CORPORATION,
Servicer
MIDLAND LOAN SERVICES, INC.,
Special Servicer
XXXXX FARGO BANK, N.A.,
Trustee
and
JPMORGAN CHASE BANK,
Paying Agent
POOLING AND SERVICING AGREEMENT
Dated as of
March 31, 2004
X.X.Xxxxxx Xxxxx Commercial Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates
Series 2004-CIBC8
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Certain Calculations.........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by Trustee........................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and Warranties........
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests........................................
Section 2.05 Grantor Trust Designations...................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans......
Section 3.02 Collection of Mortgage Loan Payments.........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts..........................................
Section 3.04 The Certificate Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the
Gain-on-Sale Reserve Account, the Excess Interest
Distribution Account and the Companion Distribution
Account.....................................................
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Distribution Accounts and the Companion Distribution
Account.....................................................
Section 3.06 Investment of Funds in the Certificate Account and the
REO Account.................................................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements....
Section 3.09 Realization Upon Defaulted Mortgage Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation.......................................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 Annual Statement as to Compliance............................
Section 3.14 Reports by Independent Public Accountants....................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties..........
Section 3.19 Additional Obligations of Servicer and Special Servicer......
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Recordkeeping; Asset Status Report................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Representations, Warranties and Covenants of the Servicer....
Section 3.24 Representations, Warranties and Covenants of the Special
Servicer....................................................
Section 3.25 Interest Reserve Account.....................................
Section 3.26 Excess Interest Distribution Account.........................
Section 3.27 Directing Certificateholder Contact with Servicer............
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of
Directing Certificateholder.................................
Section 3.29 Intercreditor Agreements and Mezzanine Intercreditor
Agreements..................................................
Section 3.30 Companion Paying Agent.......................................
Section 3.31 Companion Register...........................................
Section 3.32 Certain Matters Relating to the Forum Shops Mortgage Loan....
Section 3.33 Xxxxx Town Center Loan.......................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s..............................................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Collateral Support Deficit.....................
Section 4.05 Appraisal Reductions.........................................
Section 4.06 Certificate Deferred Interest................................
Section 4.07 Grantor Trust Reporting......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
Section 5.06 Appointment of Paying Agent..................................
Section 5.07 Certificate Ownership Certification..........................
ARTICLE VI
THE DEPOSITOR, THE SERVICER, THE SPECIAL SERVICER
AND THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Servicer and the Special
Servicer....................................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Servicer or the Special Servicer............................
Section 6.03 Limitation on Liability of the Depositor, the Servicer,
the Special Servicer and Others.............................
Section 6.04 Servicer and Special Servicer Not to Resign..................
Section 6.05 Rights of the Depositor in Respect of the Servicer and
the Special Servicer........................................
Section 6.06 The Directing Certificateholder..............................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination.................................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Trustee as Maker of Advances.................................
ARTICLE VIII
CONCERNING THE TRUSTEE AND the PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent...................
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent.......................................................
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans...............
Section 8.04 Trustee or Paying Agent May Own Certificates.................
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and the Paying Agent.............
Section 8.06 Eligibility Requirements for Trustee and the Paying Agent....
Section 8.07 Resignation and Removal of the Trustee and Paying Agent......
Section 8.08 Successor Trustee or Paying Agent............................
Section 8.09 Merger or Consolidation of Trustee or Paying Agent...........
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Access to Certain Information................................
Section 8.13 Representations and Warranties of the Trustee................
Section 8.14 Representations and Warranties of the Paying 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 REMIC PROVISIONS
Section 10.01 REMIC Administration........................................
Section 10.02 Depositor, Servicer and Special Servicer to Cooperate
with Paying Agent..........................................
Section 10.03 Use of Agents...............................................
Section 10.04 Appointment of REMIC Administrators.........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment...................................................
Section 11.02 Recordation of Agreement; Counterparts......................
Section 11.03 Limitation on Rights of Certificateholders..................
Section 11.04 Governing Law...............................................
Section 11.05 Notices.....................................................
Section 11.06 Severability of Provisions..................................
Section 11.07 Grant of a Security Interest................................
Section 11.08 Successors and Assigns; Beneficiaries.......................
Section 11.09 Article and Section Headings................................
Section 11.10 Notices to the Rating Agencies..............................
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-4 Certificate
Exhibit A-5 Form of Class A-1A Certificate
Exhibit A-6 Form of Class X-1 Certificate
Exhibit A-7 Form of Class X-2 Certificate
Exhibit A-8 Form of Class B Certificate
Exhibit A-9 Form of Class C Certificate
Exhibit A-10 Form of Class D Certificate
Exhibit A-11 Form of Class E Certificate
Exhibit A-12 Form of Class F Certificate
Exhibit A-13 Form of Class G Certificate
Exhibit A-14 Form of Class H Certificate
Exhibit A-15 Form of Class J Certificate
Exhibit A-16 Form of Class K Certificate
Exhibit A-17 Form of Class L Certificate
Exhibit A-18 Form of Class M Certificate
Exhibit A-19 Form of Class N Certificate
Exhibit A-20 Form of Class P Certificate
Exhibit A-21 Form of Class NR Certificate
Exhibit A-22 Form of Class R Certificate
Exhibit A-23 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I-1 Form of Regulation S Transfer Certificate during Restricted
Period
Exhibit I-2 Form of Regulation S Transfer Certificate after Restricted
Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate during
Restricted Period
Exhibit L Reserved
Exhibit M Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate after
Restricted Period
Exhibit N Form of Transfer Certificate for Regulation S Book-Entry
Certificate to Rule 144A Global Book-Entry Certificate during
Restricted Period
Exhibit O Form of Transfer Certificate for Regulation S Book-Entry
Certificate during Restricted Period
Exhibit P Form Certification to be Provided with Form 10-K
Exhibit Q-1 Form of Certification to be Provided to Depositor by the
Paying Agent
Exhibit Q-2 Form of Certification to be Provided to Depositor by the
Servicer
Exhibit Q-3 Form of Certification to be Provided to Depositor by the
Special Servicer
by the Servicer
Exhibit R Form of Notice Relating to the Forum Shops Mortgage Loan
Exhibit S Exception Report of the Trustee
Exhibit T Form of Final Certification of the Trustee
Exhibit U Form of Notice and Certification regarding Defeasance of
Mortgage Loan
Exhibit V-1 Form of Information Request by Certificateholder or
Certificate Owner
Exhibit V-2 Form of Information Request by Prospective Purchaser
Exhibit W Initial Companion Holders
SCHEDULES
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans that Initially Pay Interest Only
Schedule 3 Class X Reference Rate Schedule
Schedule 4 Forum Shops Mortgage Loan Amortization Schedule
This Pooling and Servicing Agreement (the "Agreement") is dated
and effective as of March 31, 2004, among X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., as Depositor, GMAC Commercial Mortgage
Corporation, as Servicer, Midland Loan Services, Inc., as Special Servicer,
Xxxxx Fargo Bank, N.A., as Trustee, and JPMorgan Chase Bank, as Paying Agent.
PRELIMINARY STATEMENT
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans (the "Mortgage
Loans"). As provided herein, the Paying Agent shall elect or shall cause
elections to be made to treat the Trust Fund (exclusive of the Excess Interest
and the Excess Interest Distribution Account) for federal income tax purposes as
two separate real estate mortgage investment conduits (the "Upper-Tier REMIC"
and the "Lower-Tier REMIC," respectively).
The parties intend that the portions of the Trust Fund representing
the Excess Interest, the Excess Interest Distribution Account and the proceeds
thereof will be treated as a grantor trust under subpart E of Part 1 of
subchapter J of the Code and that the beneficial interest therein will be
represented by the Class NR Certificates.
LOWER-TIER REMIC
The Class LA-1-1, Class LA-1-2, Class LA-1-3, Class LA-1A-1, Class
LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class
LA-1A-7, Class LA-1A-8, Class LA-2-1, Class LA-2-2, Class LA-2-3, Class LA-2-4,
Class XX-0-0, Xxxxx XX-0, Class LA-4-1, Class LA-4-2, Class LB, Class LC, Class
LD, Class LE-1, Class LE-2, Class LF-1, Class LF-2, Class LG-1, Class LG-2,
Class LH-1, Class LH-2, Class LJ, Class LK-1, Class LK-2, Class LL, Class LM,
Class LN, Class LP and Class LNR Uncertificated Interests will evidence "regular
interests" in the Lower-Tier REMIC created hereunder. The sole Class of
"residual interests" in the Lower-Tier REMIC created hereunder will be evidenced
by the Class LR Certificates.
The following table sets forth the Original Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests and the Class LR Certificates:
Class Interest Rate Original Lower-Tier
Designation (per annum) Principal Amount
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Class LA-1-1 (1) $6,857,000
Class LA-1-2 (1) $44,456,000
Class LA-1-3 (1) $28,687,000
Class LA-1A-1 (1) $3,177,000
Class LA-1A-2 (1) $17,171,000
Class LA-1A-3 (1) $18,427,000
Class LA-1A-4 (1) $17,366,000
Class LA-1A-5 (1) $38,163,000
Class LA-1A-6 (1) $19,980,000
Class LA-1A-7 (1) $27,475,000
Class LA-1A-8 (1) $202,990,000
Class LA-2-1 (1) $19,541,000
Class LA-2-2 (1) $46,150,000
Class LA-2-3 (1) $48,169,000
Class LA-2-4 (1) $50,365,000
Class LA-2-5 (1) $23,775,000
Class LA-3 (1) $110,000,000
Class LA-4-1 (1) $60,731,000
Class LA-4-2 (1) $288,626,000
Class LB (1) $31,348,000
Class LC (1) $14,107,000
Class LD (1) $28,213,000
Class LE-1 (1) $2,615,000
Class LE-2 (1) $11,492,000
Class LF-1 (1) $5,543,000
Class LF-2 (1) $10,131,000
Class LG-1 (1) $3,578,000
Class LG-2 (1) $8,961,000
Class LH-1 (1) $6,586,000
Class LH-2 (1) $12,223,000
Class LJ (1) $6,270,000
Class LK-1 (1) $2,042,000
Class LK-2 (1) $4,227,000
Class LL (1) $6,270,000
Class LM (1) $4,702,000
Class LN (1) $4,702,000
Class LP (1) $3,171,000
Class LNR (1) $15,674,805
Class LR None(2) None(2)
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(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Lower-Tier Distribution Account after distributing the Lower-Tier
Regular Distribution Amount shall be distributed to the Holders of the
Class LR Certificates in respect of the residual interest in the
Lower-Tier REMIC (but only to the extent of the Available Distribution
Amount for such Distribution Date, if any, remaining in the Lower-Tier
Distribution Account).
UPPER-TIER REMIC
The Class A-1, Class A-2, Class A-3, Class A-4, Class A-1A, 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 P, Class NR (other than with respect to the right to
receive Excess Interest), Class X-1 and Class X-2 Certificates will evidence
"regular interests" in the Upper-Tier REMIC created hereunder. The sole Class of
"residual interests" in the Upper-Tier REMIC created hereunder will be evidenced
by the Class R Certificates.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or Notional Amount ("Original Notional Amount"),
as applicable, and the initial ratings given each Class by the Rating Agencies
(the "Original Ratings") for each Class of Certificates comprising the interests
in the Upper-Tier REMIC created hereunder:
Initial Original
Related Pass-Through Rate Original Ratings
Certificate (per annum) Certificate Balance S&P/Xxxxx'x(1)
--------------------------------------------------------------------------------
Class A-1(2) 2.7900% $80,000,000 AAA/Aaa
Class A-2(2) 3.8370% $188,000,000 AAA/Aaa
Class A-3(2) 4.0070% $110,000,000 AAA/Aaa
Class A-4(2) 4.4040% $349,357,000 AAA/Aaa
Class A-1A(2) 4.1580% $344,749,000 AAA/Aaa
Class B 4.5000% $31,348,000 AA/Aa2
Class C 4.5300% $14,107,000 AA-/Aa3
Class D 4.5690%(3) $28,213,000 A/A2
Class E 4.6490%(3) $14,107,000 A-/A3
Class F 4.8491%(4) $15,674,000 BBB+/Baa1
Class G 4.9481%(4) $12,539,000 BBB/Baa2
Class H 5.4561%(4) $18,809,000 BBB-/Baa3
Class J 4.7330%(3) $6,270,000 BB+/Ba1
Class K 4.7330%(3) $6,269,000 BB/Ba2
Class L 4.7330%(3) $6,270,000 BB-/Ba3
Class M 4.7330%(3) $4,702,000 B+/B1
Class N 4.7330%(3) $4,702,000 B/B2
Class P 4.7330%(3) $3,135,000 B-/B3
Class NR 4.7330%(3) $15,674,805 */*
Class X-1 0.0668%(5) $1,253,925,805(6) AAA/Aaa
Class X-2 1.3856%(5) $1,215,678,000(6) AAA/Aaa
Class R None None(7) */*
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(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) For purposes of making distributions to the Class A-1, Class A-2, Class
A-3, Class A-4 and Class A-1A Certificates, the pool of Mortgage Loans
will be deemed to consist of two distinct Loan Groups, Loan Group 1 and
Loan Group 2.
(3) Subject to a maximum Pass-Through Rate equal to the Weighted Average Net
Mortgage Rate.
(4) The Pass-Through Rate for any Distribution Date for the Class F, Class G
and Class H Certificates will be the Weighted Average Net Mortgage Rate
for the Distribution Date minus 0.7240%, 0.6250% and 0.1170%,
respectively, per annum.
(5) The Pass-Through Rates for each of the Class X-1 and Class X-2
Certificates will be calculated in accordance with the related definitions
of "Class X-1 Pass-Through Rate" and "Class X-2 Pass-Through Rate," as
applicable.
(6) The Class X-1 and Class X-2 Certificates will not have a Certificate
Balance; rather, each such Class of Certificates will accrue interest as
provided herein on the related Class X-1 Notional Amount and Class X-2
Notional Amount, as applicable.
(7) The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Upper-Tier Distribution Account, after all required distributions
under this Agreement have been made to each other Class of Certificates,
will be distributed to the Holders of the Class R Certificates (but only
to the extent of the Available Distribution Amount for such Distribution
Date, if any, remaining or the Upper-Tier Distribution Account).
As of the close of business on the Cut-off Date, the Mortgage Loans
had an aggregate principal balance, after application of all payments of
principal due on or before such date, whether or not received, equal to
$1,253,925,805.
Six mortgage loans (or groups of mortgage loans), the Parkwood
Apartments Companion Loan, Xxxxxxxx Crossing Companion Loan, Hebron Heights
Companion Loan, Central Park Office Companion Loan, Grandview Xxxxxxx Apartments
Companion Loan and Xxxxxxxx Apartments Companion Loan (collectively, the
"Companion Loans") are not part of the Trust Fund, but are secured by the same
Mortgages that secure the related Mortgage Loans (each, with the exception of
the Forum Shops Mortgage Loan, an "AB Mortgage Loan" and, collectively, the "AB
Mortgage Loans") that are part of the Trust Fund. As and to the extent provided
herein, the Companion Loans will be serviced and administered in accordance with
this Agreement. Amounts attributable to the Companion Loans will not be assets
of the Trust Fund, and (except to the extent that such amounts are payable or
reimbursable to any party to this Agreement) will be owned by the Companion
Holders.
The Forum Shops Mortgage Loan and the Forum Shops Companion Notes
are pari passu with each other and the Forum Shops B Note is subordinated to
such loans. The Forum Shops Mortgage Loan is part of the Trust Fund. The Forum
Shops A-1 Note and the Forum Shops B Note are part of the Forum Shops Trust. The
Forum Shops A-2 Note is part of the trust serviced and administered by an Other
Pooling and Servicing Agreement. The Forum Shops Mortgage Loan and the Forum
Shops Companion Notes will be serviced and administered in accordance with Forum
Shops Pooling Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer, the Trustee and the Paying Agent
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following capitalized terms, unless the context otherwise
requires, shall have the meanings specified in this Article.
"AB Mortgage Loan": Each of the Mortgage Loans identified on the
Mortgage Loan Schedule as loan numbers 10, 25, 31, 46, 47 and 91 that are part
of the trust fund.
"Acceptable Insurance Default": With respect to any Mortgage Loan
(other than the Forum Shops Mortgage Loan), a default under the related Mortgage
Loan documents arising by reason of any failure on the part of the related
Mortgagor to maintain with respect to the related Mortgaged Property specific
insurance coverage with respect to, or an all-risk casualty insurance policy
that does not specifically exclude, terrorist or similar acts, and/or any
failure on the part of the related Mortgagor to maintain with respect to the
related Mortgaged Property insurance coverage with respect to terrorist or
similar acts upon terms no less favorable than those in place as of March 31,
2004, as to which default the Servicer and the Special Servicer may forbear
taking any enforcement action, provided that the Special Servicer has
determined, in its reasonable judgment, based on inquiry consistent with the
Servicing Standards and subject to the consent of the Directing
Certificateholder, that either (a) such insurance is not available at
commercially reasonable rates or that such hazards are not at the time commonly
insured against for properties similar to the related Mortgaged Property and
located in or around the region in which such related Mortgaged Property is
located, or (b) such insurance is not available at any rate; provided, however,
the Directing Certificateholder will not have more than 30 days to respond to
the Special Servicer's request for consultation; provided, further, that upon
the Special Servicer's determination consistent with the Servicing Standards,
that exigent circumstances do not allow the Special Servicer to consult with the
Directing Certificateholder, the Special Servicer will not be required to do so.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Certificates (other than the Residual Certificates), an
amount equal to interest for the related Interest Accrual Period at the
Pass-Through Rate applicable to such Class of Certificates for such Distribution
Date, accrued on the related Certificate Balance (or with respect to the Class
X-1 and Class X-2 Certificates, the Notional Amount of such Class outstanding
immediately prior to such Distribution Date) (provided that for interest accrual
purposes any distributions in reduction of Certificate Balance or Notional
Amount or reductions in Certificate Balance or Notional Amount as a result of
allocations of Collateral Support Deficit on the Distribution Date occurring in
an Interest Accrual Period shall be deemed to have been made on the first day of
such Interest Accrual Period). Accrued Certificate Interest shall be calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 1 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement).
"Additional Exclusions": Exclusions in addition to those customarily
found in the insurance policies for the Mortgaged Properties prior to September
11, 2001.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York; and (b) such other state or local tax laws whose applicability shall have
been brought to the attention of the Trustee and the Paying Agent by either (i)
an opinion of counsel delivered to it, or (ii) written notice from the
appropriate taxing authority as to the applicability of such state or local tax
laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan (other than the Forum Shops Mortgage Loan) as to which an
Appraisal Reduction Event has occurred, an amount calculated on each
Distribution Date by the Special Servicer, after the first Determination Date
following the date on which the Special Servicer receives or performs such
Appraisal equal to the excess of (a) the Stated Principal Balance of such
Mortgage Loan over (b) the excess of (i) the sum of (A) 90% of the Appraised
Value of the related Mortgaged Property as determined (1) by one or more
Appraisals with respect to any Mortgage Loan (together with any other Mortgage
Loan cross-collateralized with such Mortgage Loan), with an outstanding
principal balance equal to or in excess of $2,000,000 (the costs of which shall
be paid by the Servicer as an Advance) or (2) by an internal valuation performed
by the Special Servicer with respect to any Mortgage Loan (together with any
other Mortgage Loan cross-collateralized with such Mortgage Loan) with an
outstanding principal balance less than $2,000,000, and (B) all escrows, letters
of credit and reserves in respect of such Mortgage Loan as of the date of
calculation over (ii) the sum of, as of the Due Date occurring in the month of
the date of determination, (A) to the extent not previously advanced by the
Servicer or the Trustee, all unpaid interest on such Mortgage Loan at a per
annum rate equal to its Mortgage Rate, (B) all Advances that have not been, or
were not, reimbursed out of collections on such Mortgage Loan and interest
thereon at the Reimbursement Rate in respect of such Mortgage Loan and (C) all
currently due and unpaid real estate taxes, assessments, insurance premiums,
ground rents, unpaid Special Servicing Fees and all other amounts due and unpaid
with respect to such Mortgage Loan (which taxes, premiums, ground rents and
other amounts have not been the subject of an Advance by the Servicer or the
Trustee, as applicable); provided, however, without limiting the Special
Servicer's obligation to order and obtain such Appraisal, if the Special
Servicer has not obtained the Appraisal or valuation, as applicable, referred to
above within 60 days of the Appraisal Reduction Event (or with respect to the
reduction event set forth in clause (i) of the definition of Appraisal Reduction
Event, within such 120 days set forth therein), the amount of the Appraisal
Reduction shall be deemed to be an amount equal to 25% of the current Stated
Principal Balance of the related Mortgage Loan until such time as such appraisal
or valuation referred to above is received and the Appraisal Reduction is
calculated. Promptly upon the occurrence of an Appraisal Reduction Event, the
Special Servicer shall order and receive an Appraisal (the cost of which shall
be paid as a Servicing Advance); provided, however, that with respect to an
Appraisal Reduction Event as set forth in clause (i) and (vi) of the definition
of Appraisal Reduction Event, the Special Servicer shall order and receive such
Appraisal within 120 days after the initial delinquency for the related
Appraisal Reduction Event, which Appraisal shall be delivered by the Special
Servicer to the Servicer, the Directing Certificateholder, the Trustee and the
Paying Agent, and the Paying Agent shall deliver such Appraisal to each Holder
of a Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class P and Class NR Certificate upon request (subject to receipt of such
Appraisal by the Special Servicer).
With respect to each Mortgage Loan (other than the Forum Shops
Mortgage Loan) as to which an Appraisal Reduction has occurred (unless such
Mortgage Loan has become a Corrected Mortgage Loan (for such purposes taking
into account any amendment or modification of such Mortgage Loan)), the Special
Servicer shall, within 30 days of each anniversary of the related Appraisal
Reduction Event, order an Appraisal (which may be an update of a prior
Appraisal), the cost of which shall be paid by the Servicer as a Servicing
Advance or conduct an internal valuation, as applicable. Based upon such
Appraisal, the Special Servicer shall redetermine and report to the Directing
Certificateholder, the Servicer, the Paying Agent and the Trustee the amount of
the Appraisal Reduction with respect to such Mortgage Loan and such redetermined
Appraisal Reduction shall replace the prior Appraisal Reduction with respect to
such Mortgage Loan. Notwithstanding the foregoing, the Special Servicer will not
be required to obtain an Appraisal or conduct an internal valuation, as
applicable, with respect to a Mortgage Loan which is the subject of an Appraisal
Reduction Event to the extent the Special Servicer has obtained an Appraisal or
valuation, as applicable, with respect to the related Mortgaged Property within
the twelve-month period immediately prior to the occurrence of such Appraisal
Reduction Event. Instead, the Special Servicer may use such prior Appraisal or
valuation, as applicable, in calculating any Appraisal Reduction with respect to
such Mortgage Loan; provided that the Special Servicer is not aware of any
material change to the related Mortgaged Property, its earning potential, risk
characteristics or marketability, or market conditions that have occurred and
that would affect the validity of such appraisal or valuation, as applicable.
Any Appraisal Reduction in respect of the Forum Shops Whole Loan
shall be calculated by the Forum Shops Primary Servicer in accordance with and
pursuant to the terms of the Forum Shops Pooling Agreement.
Any Mortgage Loan (other than the Forum Shops Mortgage Loan)
previously subject to an Appraisal Reduction which loan has become a Corrected
Mortgage Loan (for such purposes taking into account any amendment or
modification of such Mortgage Loan), and with respect to which no other
Appraisal Reduction Event has occurred and is continuing, will no longer be
subject to an Appraisal Reduction.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan (other than the Forum Shops
Mortgage Loan) or the related REO Property will be reduced to zero as of the
date on which such Mortgage Loan is paid in full, liquidated, repurchased or
otherwise removed from the Trust Fund.
"Appraisal Reduction Event": With respect to any Mortgage Loan
(other than the Forum Shops Mortgage Loan), the earliest of (i) 120 days after
an uncured delinquency (without regard to the application of any grace period)
occurs in respect of such Mortgage Loan, (ii) the date on which a reduction in
the amount of Monthly Payments on such Mortgage Loan or a change in any other
material economic term of such Mortgage Loan (other than an extension of the
Maturity Date), becomes effective as a result of a modification of such Mortgage
Loan, by the Special Servicer, (iii) the date on which a receiver has been
appointed with respect to the related Mortgagor, (iv) 60 days after the related
Mortgagor declares bankruptcy, (v) 60 days after the date on which an
involuntary petition of bankruptcy is filed with respect to the related
Mortgagor, (vi) 90 days after an uncured delinquency occurs in respect of a
Balloon Payment with respect to such Mortgage Loan, or (vii) immediately after
such Mortgage Loan becomes an REO Loan; provided, however, that an Appraisal
Reduction Event shall not occur at any time when the aggregate Certificate
Balances of all Classes of Certificates (other than the Class A Certificates)
have been reduced to zero. The Special Servicer shall notify the Servicer, or
the Servicer shall notify the Special Servicer, as applicable, promptly upon
acquiring actual knowledge of the occurrence of any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property (other
than the Mortgaged Property securing the Forum Shops Mortgage Loan), the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent MAI appraiser selected by the
Servicer or Special Servicer, as applicable. With respect to the Forum Shops
Mortgaged Property, the appraised value allocable thereto, as determined
pursuant to the Forum Shops Pooling Agreement.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Excess Interest at the rate specified in the related
Mortgage Note and the Mortgagor is required to apply excess monthly cash flow
generated by the related Mortgaged Property to the repayment of the outstanding
principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any reduction in the principal balance
occurring in connection with a default or a bankruptcy modification of such
Mortgage Loan, and (b) interest on the Stated Principal Balance of such Mortgage
Loan at the applicable Mortgage Rate (net of interest at the Servicing Fee Rate,
plus, in the case of the Forum Shops Mortgage Loan, the Forum Shops Primary
Servicing Fee Rate).
"Authenticating Agent": The Paying Agent or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01(b).
"Available Distribution Amount": With respect to any Distribution
Date, and the Mortgage Loans (and in the case of the Forum Shops Mortgage Loan,
only to the extent received by the Trust pursuant to the Forum Shops
Intercreditor Agreement), an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Mortgage Loans on deposit
(exclusive of any Net Investment Earnings contained therein) in the
Certificate Account and the Lower-Tier Distribution Account, without
duplication, as of the close of the Business Day prior to the related P&I
Advance Date, exclusive of (without duplication):
(i) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due Period;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the
Due Date for the related Mortgage Loan during the related Due
Period), Liquidation Proceeds or Insurance and Condemnation Proceeds
received on or after the second Business Day prior to the related
Distribution Date;
(iii) all amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through (xvii),
inclusive, and clause (xix) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Lower-Tier Distribution Account pursuant to clauses (ii) through
(vii), inclusive, of Section 3.05(b);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in the Certificate Account or the
Lower-Tier Distribution Account, as the case may be, in error; and
(viii) with respect to each Interest Reserve Loan and any
Distribution Date relating to each Interest Accrual Period ending in
(1) each January or (2) any December in a year immediately preceding
a year which is not a leap year, an amount equal to one day of
interest on the Stated Principal Balance of such Mortgage Loan as of
the Due Date in the month preceding the month in which such
Distribution Date occurs at the related Mortgage Rate to the extent
such amounts are to be deposited in the Interest Reserve Account and
held for future distribution pursuant to Section 3.25;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to the Certificate
Account for such Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Servicer or
the Trustee, as applicable, for such Distribution Date pursuant to Section
4.03 or 7.05 (net of the related Trustee Fee with respect to the Mortgage
Loans for which such P&I Advances are made);
(d) for the Distribution Date occurring in each March, the Withheld
Amounts remitted to the Lower-Tier Distribution Account pursuant to
Section 3.25(b); and
(e) with respect to the first Distribution Date, the Closing Date
Deposit Amount deposited into the Distribution Account pursuant to Section
2.01(g).
Notwithstanding the investment of funds held in the Certificate Account pursuant
to Section 3.06, for purposes of calculating the Available Distribution Amount,
the amounts so invested shall be deemed to remain on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any of the Class A-1, Class A-2, Class
A-3, Class A-4, Class A-1A, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates is a fraction (a) whose numerator is the greater of (x)
zero and (y) the amount by which (i) the Pass-Through Rate on such Class of
Certificates exceeds (ii) the discount rate used in accordance with the related
Mortgage Loan documents in calculating the Yield Maintenance Charge with respect
to such Principal Prepayment and (b) whose denominator is the amount by which
(i) the Mortgage Rate on such Mortgage Loan exceeds (ii) the discount rate used
in accordance with the related Mortgage Loan documents in calculating the Yield
Maintenance Charge with respect to such Principal Prepayment. However, under no
circumstances shall the Base Interest Fraction be greater than one. If such
discount rate is greater than the Mortgage Rate on such Mortgage Loan, then the
Base Interest Fraction will equal zero. The Servicer shall provide to the Paying
Agent the discount rate references above for purposes of calculating the Base
Interest Fraction.
"Bid Allocation": With respect to the Servicer and the proceeds of
any bid pursuant to Section 7.01(c), the amount of such proceeds (net of any
expenses incurred in connection with such bid and the transfer of servicing),
multiplied by a fraction equal to (a) the Servicing Fee Amount for the Servicer
as of such date of determination, over (b) the aggregate of the Servicing Fee
Amounts for the Servicer as of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Columbia, Maryland,
Minneapolis, Minnesota or the city and state in which the Corporate Trust Office
of the Trustee or principal place of business of the Servicer, the Special
Servicer or the Paying Agent is located, are authorized or obligated by law or
executive order to remain closed.
"Central Park Office AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 46.
"Central Park Office Companion Loan": That certain loan evidenced by
a promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the Central Park Office AB Mortgage Loan.
"Central Park Office Intercreditor Agreement": That certain
Intercreditor Agreement Among Noteholders, dated as of December 24, 2003 between
CIBC Inc., as Note A Holder, and CBA Mezzanine Capital Finance, LLC, as Note B
Holder. The Central Park Office Intercreditor Agreement relates to the Central
Park Office AB Mortgage Loan.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC8, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": A segregated custodial account or accounts
created and maintained by the Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for the Certificateholders, which shall be entitled "GMAC
Commercial Mortgage Corporation, as Servicer, on behalf of Xxxxx Fargo Bank,
N.A., as Trustee, in trust for the registered holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8, Certificate Account." Any such account or
accounts shall be an Eligible Account. Subject to the related Intercreditor
Agreement and taking into account that each Companion Loan is subordinate to the
related AB Mortgage Loan to the extent set forth in the related Intercreditor
Agreement, the subaccount described in the next to last paragraph of Section
3.04(a) that is part of the Certificate Account shall be for the benefit of the
related Companion Holder, to the extent funds on deposit in such subaccount are
attributed to such Companion Loan and shall not be an asset of the Trust Fund or
the Upper-Tier REMIC or Lower-Tier REMIC formed hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates and the Class X Certificates), (i) on or
prior to the first Distribution Date, an amount equal to the Original
Certificate Balance of such Class as specified in the Preliminary Statement
hereto, and (ii) as of any date of determination after the first Distribution
Date, the Certificate Balance of such Class on the Distribution Date immediately
prior to such date of determination (determined as adjusted pursuant to Section
1.02(iii)).
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates, the amount of Mortgage Deferred Interest
allocated to such Class pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to at
least eight (8) places, the numerator of which is the then related Certificate
Balance, and the denominator of which is the related Original Certificate
Balance.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Servicer, the
Special Servicer, the Depositor, the Trustee, the Paying Agent or any Affiliate
thereof shall be deemed not to be outstanding, and the Voting Rights to which it
is entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver has been obtained, if such consent, approval or waiver sought from such
party would in any way increase its compensation or limit its obligations as
Servicer, Special Servicer, Depositor or the Trustee, as applicable, hereunder;
provided, however, so long as there is no Event of Default with respect to the
Servicer or the Special Servicer, the Servicer and the Special Servicer shall be
entitled to exercise such Voting Rights with respect to any issue which could
reasonably be believed to adversely affect such party's compensation or increase
its obligations or liabilities hereunder; and provided, further, however, that
such restrictions shall not apply to the exercise of the Special Servicer's
rights (or the Servicer's rights, if any) or any of their Affiliates as a member
of the Controlling Class. The Trustee and the Paying Agent shall each be
entitled to request and rely upon a certificate of the Servicer, the Special
Servicer or the Depositor in determining whether a Certificate is registered in
the name of an Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Xxxxxxxx Crossing AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 25.
"Xxxxxxxx Crossing Companion Loan": That certain loan evidenced by a
promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the Washington Village Apartments AB Mortgage Loan.
"Xxxxxxxx Crossing Intercreditor Agreement": That certain
Intercreditor Agreement Among Noteholders, dated as of February 24, 2004,
between JPMorgan Chase Bank, as Note A Holder, and CBA Mezzanine Capital
Finance, LLC, as Note B Holder. The Xxxxxxxx Crossing Intercreditor Agreement
relates to the Xxxxxxxx Crossing AB Mortgage Loan.
"Class": With respect to any Certificates, Uncertificated Lower-Tier
Interests all of the Certificates bearing the same alphabetical (and, if
applicable, numerical) Class designation and each designated Uncertificated
Lower-Tier Interest.
"Class A Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-4 or Class A-1A Certificates.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 2.7900%.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 3.8370%.
"Class A-3 Certificate": A Certificate designated as "Class A-3" on
the face thereof, in the form of Exhibit A-3 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 4.0070%.
"Class A-4 Certificate": A Certificate designated as "Class A-4" on
the face thereof, in the form of Exhibit A-4 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 4.4040%.
"Class A-1A Certificate": A Certificate designated as "Class A-1A"
on the face thereof, in the form of Exhibit A-5 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1A Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 4.1580%.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-8 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a fixed rate per annum equal to 4.5000%.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-9 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a fixed rate per annum equal to 4.5300%.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-10 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.5690% and (ii) the Weighted
Average Net Mortgage Rate.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-11 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.6490% and (ii) the Weighted
Average Net Mortgage Rate
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-12 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the Weighted Average Net Mortgage Rate minus 0.7240%.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-13 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.6250%.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-14 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the Weighted Average Net Mortgage Rate minus 0.1170%.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-15 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.7330% and (ii) the Weighted
Average Net Mortgage Rate.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-16 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.7330% and (ii) the Weighted
Average Net Mortgage Rate.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-17 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.7330% and (ii) the Weighted
Average Net Mortgage Rate.
"Class LA-1-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-7 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-8 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LM Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LNR Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LP Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-23 hereto and, evidencing the sole
class of "residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-18 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.7330% and (ii) the Weighted
Average Net Mortgage Rate.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-19 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.7330% and (ii) the Weighted
Average Net Mortgage Rate.
"Class Notional Amount": The Class X-1 Notional Amount or the Class
X-2 Notional Amount, as the context requires.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-21 hereto and evidencing (i) a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions
and (ii) an undivided beneficial interest in the Excess Interest and the Excess
Interest Distribution Account held by the Grantor Trust.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.7330% and (ii) the Weighted
Average Net Mortgage Rate.
"Class P Certificate": A Certificate designated as "Class P" on the
face thereof, in the form of Exhibit 20 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.7330% and (ii) the Weighted
Average Net Mortgage Rate.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof, in the form of Exhibit A-22 hereto and evidencing the "residual
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Certificates, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class for the immediately
preceding Distribution Date and (ii) any outstanding Class Unpaid Interest
Shortfall payable to such Class on such preceding Distribution Date over (b) the
aggregate amount in respect of interest actually distributed to such Class on
such immediately preceding Distribution Date. The Class Unpaid Interest
Shortfall with respect to any Class of Certificates as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class X Certificates": The Class X-1 Certificates and the Class X-2
Certificates.
"Class X Reference Rate": For any Distribution Date, the rate per
annum corresponding to such Distribution Date on Schedule 3.
"Class X-1 Certificate": Any one of the Certificates with a "Class
X-1" designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-1 Notional Amount": As of any date of determination, the
sum of the then Component Notional Amounts of all of the Components.
"Class X-1 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-1 Strip Rates for the respective
Components for such Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding immediately prior to
such Distribution Date).
"Class X-1 Strip Rate": (A) With respect to any Components (other
than those Components that are Class X-2 Components which are included for
purposes of calculating the Class X-2 Notional Amount for such Distribution
Date) for any Distribution Date, a rate per annum equal to (i) the Weighted
Average Net Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Related Certificates for such Distribution Date and
(B) with respect to any Components that are Class X-2 Components which are
included for purposes of calculating the Class X-2 Notional Amount for such
Distribution Date (i) for any Distribution Date occurring on or before the Class
X-2 Termination Date, (x) the Weighted Average Net Mortgage Rate for such
Distribution Date minus (y) (1) with respect to Component XF-1, Component XF-2,
Component XG-1, Component XG-2, Component XH-1 and Component XH-2, the sum of
(I) the Class X-2 Strip Rate for the applicable Class X-2 Component and (II) the
Pass-Through Rate for the Related Certificates for such Distribution Date and
(2) for each other Class X-2 Component, the greater of (I) the Class X Reference
Rate for such Distribution Date and (II) the Pass-Through Rate for the Related
Certificates for such Distribution Date, and (ii) for any Distribution Date
occurring after the Class X-2 Termination Date, a rate per annum equal to (x)
the Weighted Average Net Mortgage Rate for such Distribution Date, minus (y) the
Pass-Through Rate for the Related Certificates for such Distribution Date;
provided, that in no event shall any Class X-1 Strip Rate be less than zero.
"Class X-2 Certificate": Any one of the Certificates with a "Class
X-2" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-2 Components": Each of Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-2-2, Component XA-2-3, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0, Component XA-4-1, Component XA-4-2, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-8, Component XB, Component XC,
Component XD, Component XE-1, Component XE-2, Component XX-0, Xxxxxxxxx XX-0,
Xxxxxxxxx XX-0, Component XG-2, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX,
Component XK-1, Component XK-2 and Component XL.
"Class X-2 Notional Amount": (i) With respect to any Distribution
Date on or prior to the Distribution Date in March 2005, the sum of the then
Component Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-2-2, Component XA-2-3, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0, Component XA-4-1, Component XA-4-2, Component XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XA-1A-8, Component XB, Component XC, Component XD, Component
XE-1, Component XE-2, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component
XG-2, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX, Component XK-1, Component
XK-2 and Component XL.
(ii) With respect to any Distribution Date after the
Distribution Date in March 2005 through and including the
Distribution Date in March 2006, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-2-3, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0, Component XA-4-1, Component XA-4-2, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XB, Component XC,
Component XD, Component XE-1, Component XE-2, Component XX-0,
Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XG-2, Component XX-0,
Xxxxxxxxx XX-0, Xxxxxxxxx XX, Component XK-1, Component XK-2 and
Component XL.
(iii) With respect to any Distribution Date after the
Distribution Date in March 2006 through and including the
Distribution Date in March 2007, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0, Component XA-4-1,
Component XA-4-2, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XA-1A-7, Component XA-1A-8, Component XB,
Component XC, Component XD, Component XE-1, Component XE-2,
Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XG-2,
Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX, Component XK-2 and
Component XL.
(iv) With respect to any Distribution Date after the
Distribution Date in March 2007 through and including the
Distribution Date in March 2008, the sum of the then Component
Notional Amounts of Component XA-2-3, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XB, Component XC, Component XD, Component XE-1,
Component XE-2, Component XF-1, Component XF-2, Component XG-1,
Component XG-2 and Component XH-2.
(v) With respect to any Distribution Date after the
Distribution Date in March 2008 through and including the
Distribution Date in March 2009, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0X-0,
Component XA-1A-7, Component XA-1A-8, Component XB, Component XC,
Component XD, Component XE-1, Component XE-2, Component XF-1,
Component XF-2 and Component XG-2.
(vi) With respect to any Distribution Date after the
Distribution Date in March 2009 through and including the
Distribution Date in March 2010, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0, Component
XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0X-0, Component XA-1A-8,
Component XB, Component XC, Component XD, Component XE-1, Component
XE-2 and Component XF-2.
(vii) With respect to any Distribution Date after the
Distribution Date in March 2010 through and including the
Distribution Date in March 2011, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0X-0, Component
XB, Component XC, Component XD and Component XE-2.
(viii) With respect to any Distribution Date after the
Distribution Date in March 2011, $0.
"Class X-2 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-2 Strip Rates for the respective Class
X-2 Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (weighted
on the basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date).
"Class X-2 Strip Rate": With respect to each Class X-2 Components
for any Distribution Date, a rate per annum equal to (i) for any Distribution
Date occurring on or before the Class X-2 Termination Date, (w) with respect to
Component XF-1 and Component XF-2, the lesser of (A) 0.6940% and (B) the
Weighted Average Net Mortgage Rate for such Distribution Date minus the
Pass-Through Rate in effect on such Distribution Date for the Class D
Certificates, (x) with respect to Component XG-1 and Component XG-2, the lesser
of (A) 0.5950% and (B) the Weighted Average Net Mortgage Rate for such
Distribution Date minus the Pass-Through Rate in effect on such Distribution
Date for the Class E Certificates, (y) with respect to Component XH-1 and
Component XH-2, the lesser of (A) 0.0870% and (B) the Weighted Average Net
Mortgage Rate for such Distribution Date minus the Pass-Through Rate in effect
on such Distribution Date for the Class F Certificates and (z) with respect to
each other Class X-2 Component, (A) the lesser of (I) the Weighted Average Net
Mortgage Rate for such Distribution Date and (II) the Class X Reference Rate for
such Distribution Date, minus (B) the Pass-Through Rate for the Related
Certificates (provided that in no event shall any Class X-2 Strip Rate be less
than zero) and (ii) for any Distribution Date occurring after the Class X-2
Termination Date, 0% per annum.
"Class X-2 Termination Date": The Distribution Date in March 2011.
"Clearstream": Clearstream Banking, societe anonyme.
"Closing Date": March 31, 2004.
"Closing Date Deposit Amount": $758,582.81 representing the
aggregate amount of interest that would have accrued at the related Net Mortgage
Rates during the Due Period ending in April 2004, for those Mortgage Loans that
do not have their first Monthly Payment due until May 2004.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Paying Agent, the Trustee
and the Servicer.
"CMSA Bond Level File": The data file in the "CMSA Bond Level File"
format substantially in the form of and containing the information called for
therein, or such other form for the presentation of such information as may be
approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Bond Level
File" available as of the Closing Date on the CMSA website, as is reasonably
acceptable to the Paying Agent and the Trustee.
"CMSA Collateral Summary File": The data file in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Collateral Summary File" available as of the Closing Date on the CMSA
website, is reasonably acceptable to the Paying Agent and the Trustee.
"CMSA Comparative Financial Status Report": The monthly report in
"Comparative Financial Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally.
For the purposes of the production by the Servicer or the Special Servicer of
any such report that is required to state information with respect to any
Mortgage Loan for any period prior to the Cut-Off Date, the Servicer or the
Special Servicer, as the case may be, may conclusively rely (without independent
verification), absent manifest error, on information provided to it by the
related Mortgage Loan Seller, by the related Mortgagor or (x) in the case of
such a report produced by the Servicer, by the Special Servicer (if other than
the Servicer or an Affiliate thereof) and (y) in the case of such a report
produced by the Special Servicer, by the Servicer (if other than the Special
Servicer or an Affiliate thereof).
"CMSA Delinquent Loan Status Report": The monthly report in the
"Delinquent Loan Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Delinquent Loan Status Report" available as of
the Closing Date on the CMSA website, is reasonably acceptable to the Servicer
or the Special Servicer, as applicable.
"CMSA Financial File": The data file in the "CMSA Financial File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Financial File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA Historical Liquidation Report": The monthly report in the
"Historical Liquidation File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, or such other form
for the presentation of such information as may be approved from time to time by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Historical Liquidation Report" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the Servicer or the Special
Servicer, as applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": The monthly report in the "Historical Loan Modification and Corrected
Mortgage Loan Report" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Servicer or
the Special Servicer, as applicable.
"CMSA Investor Reporting Package (IRP)": The collection of reports
specified by the CMSA from time to time as the "CMSA Investor Reporting
Package." As of the Closing Date, the CMSA IRP contains seven electronic files
((1) CMSA Loan Set up File, (2) CMSA Loan Periodic Update File, (3) CMSA
Property File, (4) CMSA Bond Level File, (5) CMSA Collateral Summary File, (6)
CMSA Financial File and (7) CMSA Special Servicer Loan File) and ten
surveillance reports ((1) Servicer Watch List, (2) CMSA Delinquent Loan Status
Report, (3) CMSA REO Status Report, (4) CMSA Comparative Financial Status
Report, (5) CMSA Historical Loan Modification Report, (6) CMSA Historical
Liquidation Report, (7) CMSA Operating Statement Analysis Report, (8) CMSA NOI
Adjustment Worksheet, (9) CMSA Loan Level Reserve/LOC Report and (10) CMSA
Reconciliation of Funds Report). In addition, the CMSA Investor Reporting
Package shall include the Monthly Additional Report on Recoveries and
Reimbursements (notwithstanding that such form of report has not yet been
adopted or recommended by the CMSA). The CMSA IRP shall be substantially in the
form of, and containing the information called for in, the downloadable forms of
the "CMSA IRP" available as of the Closing Date on the CMSA website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage backed securities transaction generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA IRP" available as of the Closing Date on the CMSA website, as
is reasonably acceptable to the Servicer, the Special Servicer, the Paying Agent
and the Trustee. For the purposes of the production of the CMSA Comparative
Financial Status Report by the Servicer or the Special Servicer of any such
report that is required to state information for any period prior to the Cut off
Date, the Servicer or the Special Servicer, as the case may be, may conclusively
rely (without independent verification), absent manifest error, on information
provided to it by the Mortgage Loan Sellers or by the related Mortgagor or (x)
in the case of such a report produced by the Servicer, by the Special Servicer
(if other than the Servicer or an Affiliate thereof) and (y) in the case of such
a report produced by the Special Servicer, by the Servicer (if other than the
Special Servicer or an Affiliate thereof).
"CMSA Loan Periodic Update File": The data file in the "CMSA Loan
Periodic Update File" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Loan Periodic Update File" available as of the Closing
Date on the CMSA website, as is reasonably acceptable to the Paying Agent, the
Servicer and the Trustee, and further provided that each CMSA Loan Periodic
Update File prepared by the Servicer shall 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": The report in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Loan Setup File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Paying Agent and the Servicer.
"CMSA NOI Adjustment Worksheet": The worksheet in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "NOI Adjustment Worksheet" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Servicer or the Special
Servicer, as applicable.
"CMSA Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, or
such other form for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Operating Statement Analysis
Report" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA Property File": The data file in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Property File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA REO Status Report": The report in the "REO Status Report"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"REO Status Report" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Servicer or the Special Servicer, as applicable.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to the Companion
Loans, the account, which may be a subaccount of the Certificate Account,
created and maintained by the Companion Paying Agent pursuant to Section 3.04(b)
and held on behalf of the applicable Companion Holder, which shall be entitled
"GMAC Commercial Mortgage Corporation, as Companion Paying Agent for the
Companion Holder of the Companion Loans relating to the X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8." The Companion Distribution Account shall not
be an asset of the Trust Fund or the Upper-Tier REMIC or Lower-Tier REMIC formed
hereunder, but instead shall be held by the Companion Paying Agent on behalf of
the applicable Companion Holder. Any such account shall be an Eligible Account.
"Companion Holder": With respect to any Companion Loan, the owner of
the Mortgage Note representing such Companion Loan. As of the Closing Date, the
Companion Holder of the Companion Loans is (i) CBA-Mezzanine Capital Finance,
LLC, with respect to the Parkwood Apartments Companion Loan and the Hebron
Heights Companion Loan, and (ii) LaSalle Bank National Association on behalf of
the Mezz Cap Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates Series 2004-C1, with respect to the Xxxxxxxx Crossing Companion
Loan, the Central Park Office Companion Loan, the Grandview Xxxxxxx Companion
Loan and the Xxxxxxxx Apartments Companion Loan.
"Companion Loans": As defined in the Preliminary Statement.
"Companion Paying Agent": The Servicer in its role as Companion
Paying Agent pursuant to Section 3.30.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 3.31.
"Compensating Interest Payments": An amount as of any Distribution
Date equal to the lesser of (i) the aggregate amount of Prepayment Interest
Shortfalls, and (ii) the aggregate of (A) that portion of Servicing Fees for
such Distribution Date that is, in the case of each and every Mortgage Loan and
REO Loan for which such Servicing Fees are being paid for such Distribution
Date, calculated at 0.02% per annum, and (B) all Prepayment Interest Excesses
and, to the extent earned on Principal Prepayments, Net Investment Earnings
received by the Servicer for such Distribution Date with respect to the Mortgage
Loan subject to such prepayment. However, if a Prepayment Interest Shortfall
occurs as a result of the Servicer's allowing the related Mortgagor to deviate
from the terms of the related Mortgage Loan documents regarding Principal
Prepayments (other than (X) subsequent to a default under the related Mortgage
Loan documents, (Y) pursuant to applicable law or a court order, or (Z) at the
request or with the consent of the Directing Certificateholder), then, for
purposes of calculating the Compensating Interest Payment for the related
Distribution Date, the amount in clause (ii) above shall be the aggregate of (A)
all Servicing Fees for such Distribution Date and (B) all Prepayment Interest
Excesses and, to the extent earned on Principal Prepayments, Net Investment
Earnings received by the Servicer for such Distribution Date with respect to the
Mortgage Loan subject to such prepayment. In no event will the rights of the
Certificateholders to offset of the aggregate Prepayment Interest Shortfalls be
cumulative.
"Component": Each of Component XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0-0, Component XA-2-2, Component XA-2-3, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0, Component XA-4-1, Component XA-4-2, Component
XB, Component XC, Component XD, Component XE-1, Component XE-2, Component XX-0,
Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XG-2, Component XX-0, Xxxxxxxxx XX-0,
Xxxxxxxxx XX, Component XK-1, Component XK-2, Component XL, Component XM,
Component XN, Component XP and Component XNR.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower-Tier Principal Amount
of its Related Uncertificated Lower-Tier Interest.
"Component XA-1-1": One of the 38 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-1 Uncertificated Interest as of
any date of determination.
"Component XA-1-2": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-2 Uncertificated Interest as of any date of determination.
"Component XA-1-3": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-3 Uncertificated Interest as of any date of determination.
"Component XA-1A-1": One of the 38 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1A-1 Uncertificated Interest as of
any date of determination.
"Component XA-1A-2": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-2 Uncertificated Interest as of any date of determination.
"Component XA-1A-3": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-3 Uncertificated Interest as of any date of determination.
"Component XA-1A-4": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-4 Uncertificated Interest as of any date of determination.
"Component XA-1A-5": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-5 Uncertificated Interest as of any date of determination.
"Component XA-1A-6": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-6 Uncertificated Interest as of any date of determination.
"Component XA-1A-7": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-7 Uncertificated Interest as of any date of determination.
"Component XA-1A-8": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-8 Uncertificated Interest as of any date of determination.
"Component XA-2-1": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-2-1 Uncertificated Interest as of any date of determination.
"Component XA-2-2": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-2-2 Uncertificated Interest as of any date of determination.
"Component XA-2-3": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-2-3 Uncertificated Interest as of any date of determination.
"Component XA-2-4": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-2-4 Uncertificated Interest as of any date of determination.
"Component XA-2-5": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-2-5 Uncertificated Interest as of any date of determination.
"Component XA-3": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3 Uncertificated Interest as of any date of determination.
"Component XA-4-1": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-1 Uncertificated Interest as of any date of determination.
"Component XA-4-2": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-2 Uncertificated Interest as of any date of determination.
"Component XB": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LB Uncertificated Interest as of any date of determination.
"Component XC": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LC Uncertificated Interest as of any date of determination.
"Component XD": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LD Uncertificated Interest as of any date of determination.
"Component XE-1": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LE-1 Uncertificated Interest as of any date of determination.
"Component XE-2": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LE-2 Uncertificated Interest as of any date of determination.
"Component XF-1": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LF-1 Uncertificated Interest as of any date of determination.
"Component XF-2": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LF-2 Uncertificated Interest as of any date of determination.
"Component XG-1": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LG-1 Uncertificated Interest as of any date of determination.
"Component XG-2": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LG-2 Uncertificated Interest as of any date of determination.
"Component XH-1": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LH-1 Uncertificated Interest as of any date of determination.
"Component XH-2": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LH-2 Uncertificated Interest as of any date of determination.
"Component XJ": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ Uncertificated Interest as of any date of determination.
"Component XK-1": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LK-1 Uncertificated Interest as of any date of determination.
"Component XK-2": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LK-2 Uncertificated Interest as of any date of determination.
"Component XL": One of the 38 components of the Class X-1
Certificates and one of the 32 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LL-1 Uncertificated Interest as of any date of determination.
"Component XM": One of the 38 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LM Uncertificated Interest as of any
date of determination.
"Component XN": One of the 38 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LN Uncertificated Interest as of any
date of determination.
"Component XNR": One of the 38 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR Uncertificated Interest as of any
date of determination.
"Component XP: One of the 38 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LP Uncertificated Interest as of any
date of determination.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates then outstanding that has a then
aggregate Certificate Balance at least equal to 25% of the initial Certificate
Balance of such Class of Certificates. As of the Closing Date, the Controlling
Class will be the Class NR Certificates.
"Controlling Class Certificateholder's Option Period": As defined in
Section 3.18(a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18(a)(i).
"Corporate Trust Office": The corporate trust office of the Trustee
at which at any particular time its corporate trust business with respect to
this Agreement shall be administered, which office at the date of the execution
of this Agreement is located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Services (CMBS), X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Series 2004-CIBC8 (telecopy number: (000) 000-0000).
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive full and timely
Monthly Payments (for such purposes taking into account any modification or
amendment of such Mortgage Loan), and (provided that no additional Servicing
Transfer Event is foreseeable in the reasonable judgment of the Special
Servicer) the servicing of which the Special Servicer has returned to the
Servicer pursuant to Section 3.21(a).
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan and all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan. There are no Crossed Groups in the
Trust.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans. There are no Crossed
Loans in the Trust.
"Crossed Loan Repurchase Criteria": (a) The weighted average Debt
Service Coverage Ratio for the period relating to the most recent annual
statement or, if available, for the four most recent reported preceding calendar
quarters for the Mortgage Loans comprising the Crossed Group excluding the
affected Crossed Loan is not less than the greater of (i) 0.10x below the
weighted average Debt Service Coverage Ratio as of the date of such
determination, of the Mortgage Loans comprising the Crossed Group, including the
affected Crossed Loan and (ii) the weighted average Debt Service Coverage Ratio
for all such related Crossed Loans, including the affected Crossed Loan, as of
the Cut-off Date, (b) the weighted average LTV Ratio calculated based upon the
unpaid principal balances of the Crossed Group excluding the Affected Crossed
Loan divided by the appraised values of the related Mortgaged Properties, in
each case at the time of repurchase or substitution, shall not exceed the lesser
of (i) 110% of the weighted average of the LTV Ratios for all of the Mortgage
Loans comprising the Crossed Group, including the affected Crossed Loan, as of
the date of such determination or (ii) the weighted average LTV Ratio for all
such related Crossed Loans, including the affected Crossed Loan, as of the
Cut-off Date and (c) the Mortgage Loan Seller, at its expense, shall have
furnished the Trustee with an Opinion of Counsel that any modification relating
to the repurchase or substitution of a Crossed Loan will not cause an Adverse
REMIC Event. The Servicer shall be entitled to cause to be delivered, or direct
the related Mortgage Loan Seller to cause to be delivered, an Appraisal of any
or all of the Mortgaged Properties comprising such Crossed Group for the
purposes of determining whether the test set forth in clause (b) above has been
satisfied, in each case at the expense of the applicable Mortgage Loan Seller if
the scope and cost of the Appraisal is approved by such Mortgage Loan Seller and
the Directing Certificateholder (such approval not to be unreasonably withheld
or delayed in each case).
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, any of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan or Companion
Loan, the related Due Date of such Mortgage Loan or Companion Loan in March 2004
or, with respect to those Mortgage Loans that were originated in February 2004
and have their first Due Date in April 2004, March 1, 2004, or with respect to
those Mortgage Loans or Companion Loans originated in March 2004 and having
their first payment due in May 2004, the origination date of such Mortgage Loans
or Companion Loans.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan
or Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan as of the Cut-off Date, after application of all payments of
principal due on or before such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan
during such period, provided that with respect to the Mortgage Loans indicated
on Schedule 2, which pay interest only for a specified period of time set forth
in the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the amortization schedule
indicated on Schedule 2).
"Default Interest": With respect to any Mortgage Loan or Companion
Loan, all interest accrued in respect of such Mortgage Loan or Companion Loan
during such Due Period provided for in the related Mortgage Note or Mortgage as
a result of a default (exclusive of late payment charges) that is in excess of
interest at the related Mortgage Rate accrued on the unpaid principal balance of
such Mortgage Loan or Companion Loan outstanding from time to time.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days (or
sixty days with respect to the circumstances described in clause (ii) of the
definition of Servicing Transfer Event) delinquent in respect of its Balloon
Payment, if any, in either case such delinquency to be determined without giving
effect to any grace period permitted by the related Mortgage or Mortgage Note
and without regard to any acceleration of payments under the related Mortgage
and Mortgage Note or (ii) as to which the Servicer or Special Servicer has, by
written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.02(f).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Denomination": As defined in Section 5.01(a).
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
a Delaware corporation, and its successors in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18(a)(i).
"Directing Certificateholder": The Controlling Class
Certificateholder (or a representative thereof) selected by more than 50% of the
Controlling Class Certificateholders, by Certificate Balance, as certified by
the Certificate Registrar from time to time; provided, however, that (i) absent
such selection, (ii) until a Directing Certificateholder is so selected or (iii)
upon receipt of a notice from a majority of the Controlling Class
Certificateholders, by Certificate Balance, that a Directing Certificateholder
is no longer designated, the Controlling Class Certificateholder that owns the
largest aggregate Certificate Balance of the Controlling Class will be the
Directing Certificateholder which shall initially be First Chicago Capital
Corporation.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers, the use of such REO Property in a trade or
business conducted by the Trust Fund or the performance of any construction work
on the REO Property (other than the completion of a building or improvement,
where more than 10% of the construction of such building or improvement was
completed before default became imminent), other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer on
behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance or makes decisions as to repairs or
capital expenditures with respect to such REO Property or takes other actions
consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Trustee based upon an Opinion
of Counsel as provided to the Trustee (at no expense to the Trustee) that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC
or any Person having an Ownership Interest in any Class of Certificates (other
than such Person) to incur a liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates (other than Residual
Certificates), the Accrued Certificate Interest in respect of such Class of
Regular Certificates for such Distribution Date, reduced (to not less than zero)
by any allocations to such Class of Certificates (other than in the case of the
Class X Certificates) of (i) the product of (a) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (b) a fraction,
expressed as a decimal, the numerator of which is the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
and the denominator of which is the aggregate Accrued Certificate Interest in
respect of all the Classes of Regular Certificates (other than the Class X
Certificates) for such Distribution Date, and (ii) any Certificate Deferred
Interest for such Distribution Date allocated to such Class pursuant to Section
4.05(a).
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account, the Excess Interest Distribution
Account, all of which may be subaccounts of a single account.
"Distribution Date": The 12th day of each month, or if such 12th day
is not a Business Day, on the next succeeding Business Day, beginning in April
2004.
"Due Date": With respect to (i) any Mortgage Loan or Companion Loan
on or prior to its Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment thereon is scheduled to be first
due, (ii) any Mortgage Loan or Companion Loan after the Maturity Date therefor,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on such Mortgage Loan or Companion Loan had been scheduled to be
first due, and (iii) any REO Loan, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on the related Mortgage Loan or
Companion Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan or Companion Loan, the period commencing on the day immediately succeeding
the Due Date for such Mortgage Loan occurring in the month preceding the month
in which such Distribution Date occurs and ending on and including the Due Date
for such Mortgage Loan or Companion Loan occurring in the month in which such
Distribution Date occurs. Notwithstanding the foregoing, in the event that the
last day of a Due Period (or applicable grace period) is not a Business Day, any
Monthly Payments received with respect to the Mortgage Loans or Companion Loan
relating to such Due Period on the Business Day immediately following such day
shall be deemed to have been received during such Due Period and not during any
other Due Period.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Trustee), the long-term unsecured debt obligations of
which are rated at least (A) "Aa3" by Moody's or "A2" provided that the short
term obligations of which are rated "P-1" by Moody's and (B) "A+" by S&P, if the
deposits are to be held in such account 30 days or more and the short-term debt
obligations of which have a short-term rating of not less than "A-1" from S&P,
if the deposits are to be held in such account for less than 30 days or (C) as
to any REO Account, an account or accounts maintained with PNC Bank, National
Association so long as PNC Bank's long term unsecured debt rating shall be at
least "A" from S&P and "A-1" from Moody's (if the deposits are to be held in the
account for more than 30 days) or PNC Bank's short term deposit or short term
unsecured debt rating shall be at least "A-1" from S&P or "P-1" from Moody's (if
the deposits are to be held in the account for 30 days or less), or (ii) a
segregated trust account or accounts maintained with the corporate trust
department of a federal or state chartered depository institution or trust
company that, in either case, has corporate trust powers, acting in its
fiduciary capacity, provided that any state chartered depository institution or
trust company is subject to regulation regarding fiduciary funds substantially
similar to 12 C.F.R. ss. 9.10(b). Eligible Accounts may bear interest. No
Eligible Account shall be evidenced by a certificate of deposit, passbook or
other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of the American Society of Testing Materials Standard
Sections 1527-99 or any successor thereto published by the American Society of
Testing Materials.
"Environmental Indemnity Agreement": With respect to any Mortgage
Loan, any agreement between the Mortgagor (or a guarantor thereof) and the
originator of such Mortgage Loan relating to the Mortgagor's obligation to
remediate or monitor or indemnify for any environmental problems relating to the
related Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"ERISA Restricted Certificate": Any Class J, Class K, Class L, Class
M, Class N, Class P and Class NR Certificates; provided that any such
Certificate: (a) will cease to be considered an ERISA Restricted Certificate and
(b) will cease to be subject to the transfer restrictions contained in Section
5.02(c) if, as of the date of a proposed transfer of such Certificate, either
(i) it is rated in one of the four highest generic ratings categories by a
Rating Agency or (ii) relevant provisions of ERISA would permit the transfer of
such Certificate to a Plan.
"Escrow Payment": Any payment received by the Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Euroclear": Euroclear Bank, societe anonyme or any successor
thereto.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such Mortgage Loan after the Anticipated Repayment Date allocable to
the Excess Rate, including all interest accrued thereon. The Excess Interest
shall not be an asset of either the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder but shall be an asset of the Grantor Trust.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate account or accounts (or as a
subaccount of the Distribution Account) by the Paying Agent pursuant to Section
3.04(b), which shall be entitled "JPMorgan Chase Bank, as Paying Agent, in trust
for the registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC8, Excess
Interest Distribution Account," and which must be an Eligible Account (or as a
subaccount of the Distribution Account). The Excess Interest Distribution
Account shall not be an asset of either the Lower-Tier REMIC or the Upper-Tier
REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
"Xxxxxx Mae": Federal National Mortgage Association or any successor
thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": A reasonable determination by the
Special Servicer with respect to any Defaulted Mortgage Loan (and if applicable,
any defaulted Companion Loan) or REO Property that there has been a recovery of
all Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue and
other payments or recoveries that, in the Special Servicer's judgment, which
judgment was exercised without regard to any obligation of the Special Servicer
to make payments from its own funds pursuant to Section 3.07(b), will ultimately
be recoverable.
"Forum Shops A Notes": Collectively, the Forum Shops Mortgage Loan
and the Forum Shops Companion Notes.
"Forum Shops A-1 Note": With respect to the Forum Shops Whole Loan,
the related promissory note made by the related Mortgagor and secured by the
Mortgage on the Forum Shops Mortgaged Property and designated as Promissory Note
A-1, which is not included in the Trust and which is senior in right of payment
to the Forum Shops B Note and pari passu in right of payment to the Forum Shops
Mortgage Loan and the Forum Shops A-2 Note to the extent set forth in the
related Mortgage Loan documents and as provided in the Forum Shops Intercreditor
Agreement.
"Forum Shops A-2 Note": With respect to the Forum Shops Whole Loan,
the related promissory note made by the related Mortgagor and secured by the
Mortgage on the Forum Shops Mortgaged Property and designated as Promissory Note
A-2, which is not included in the Trust and which is senior in right of payment
to the Forum Shops B Note and pari passu in right of payment to the Forum Shops
Mortgage Loan and the Forum Shops A-1 Note to the extent set forth in the
related Mortgage Loan documents and as provided in the Forum Shops Intercreditor
Agreement.
"Forum Shops B Note": With respect to the Forum Shops Whole Loan,
the related promissory note made by the related Mortgagor and secured by the
Mortgage on the Forum Shops Mortgaged Property and designated as promissory note
B, which is not included in the Trust and which is subordinate in right of
payment to the Forum Shops A Notes to the extent set forth in the related
Mortgage Loan documents and as provided in the Forum Shops Intercreditor
Agreement.
"Forum Shops B Noteholder": The holder of the Forum Shops B Note.
"Forum Shops Companion Loan Noteholders": The holder of the Forum
Shops Companion Notes.
"Forum Shops Companion Loan Securities": Any class of securities
backed, wholly or partially, by any of the Forum Shops Companion Notes.
"Forum Shops Companion Notes": With respect to the Forum Shops Whole
Loan, the related promissory notes made by the Forum Shops Mortgagor and secured
by the Mortgage on the Forum Shops Mortgaged Property and designated as
promissory note A-1 and promissory note A-2, which are not included in the
Trust, that are senior in right of payment to the Forum Shops B Note and pari
passu in right of payment with the Forum Shops Mortgage Loan to the extent set
forth in the Forum Shops Whole Loan and as provided in the Forum Shops
Intercreditor Agreement.
"Forum Shops Control Appraisal Event": A "Forum Shops Control
Appraisal Event" will exist with respect to the Forum Shops Whole Loan, if and
for so long as a "Control Appraisal Event" has occurred and is continuing
pursuant to the Forum Shops Intercreditor Agreement.
"Forum Shops Event of Default": An "Event of Default" as defined
under the Forum Shops Whole Loan documents.
"Forum Shops Intercreditor Agreement": The intercreditor agreement,
by and among the holders of the Forum Shops A Notes and the holder of the Forum
Shops B Note, relating to the relative rights of such holders of the Forum Shops
Whole Loan, as the same may be further amended in accordance with the terms
thereof.
"Forum Shops Mortgage Loan": With respect to the Forum Shops Whole
Loan, the mortgage loan that is included in the Trust (identified as Mortgage
Loan No. 1 on the Mortgage Loan Schedule), which is designated as promissory
note A-3 and is senior in right of payment to the related Forum Shops B Note and
pari passu in right of payment to the Forum Shops A-1 Note and the Forum Shops
A-2 Note to the extent set forth in the Forum Shops Whole Loan and as provided
in the Forum Shops Intercreditor Agreement.
"Forum Shops Mortgaged Property": The mortgaged property which
secures the Forum Shops Whole Loan.
"Forum Shops Paying Agent": The "paying agent" under the Forum Shops
Pooling Agreement, which as of the date hereof is JPMorgan Chase Bank.
"Forum Shops Pooling Agreement": The (i) pooling and servicing
agreement dated as of December 8, 2003 among the Depositor, as depositor,
Midland Loan Services, Inc., as master servicer, Midland Loan Services, Inc., as
special servicer, LaSalle Bank National Association, as trustee, ABN AMRO BANK
N.V., as fiscal agent and JPMorgan Chase Bank, as paying agent, as from time to
time amended, supplemented or modified relating to the issuance of the X.X.
Xxxxxx Commercial Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 2003-CIBC7 or (ii) any successor pooling and servicing
agreement entered into pursuant to the Forum Shops Intercreditor Agreement.
"Forum Shops Primary Servicer": The "master servicer" under the
Forum Shops Pooling Agreement, which as of the date hereof is Midland Loan
Services, Inc.
"Forum Shops Primary Servicing Fee": With respect to the Forum Shops
Mortgage Loan, the primary servicing fee payable to the Forum Shops Primary
Servicer under the Forum Shops Pooling Agreement at the Forum Shops Primary
Servicing Fee Rate.
"Forum Shops Primary Servicing Fee Rate": 0.03% per annum.
"Forum Shops Special Servicer": The "special servicer" under the
Forum Shops Pooling Agreement, which as of the date hereof is Midland Loan
Services, Inc.
"Forum Shops Trustee": The "trustee" under the Forum Shops Pooling
Agreement, which as of the date hereof is LaSalle Bank National Association.
"Forum Shops Trust": The trust created under the Forum Shops Pooling
Agreement.
"Forum Shops Whole Loan": The Forum Shops Mortgage Loan, together
with the Forum Shops B Note and the Forum Shops Companion Notes, each of which
is secured by the same Mortgage on the Forum Shops Mortgaged Property.
References herein to the Forum Shops Whole Loan shall be construed to refer to
the aggregate indebtedness under the Forum Shops A Notes and the Forum Shops B
Note.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan, the
excess of (i) Liquidation Proceeds of the Mortgage Loan or related REO Property
net of any related Liquidation Expenses, Unliquidated Advances, unreimbursed
Advances, Liquidation Fees, unreimbursed interest on Advances, unpaid Servicing
Fees (and in the case of the Forum Shops Mortgage Loan, the Forum Shops Primary
Servicing Fees) and unpaid Special Servicing Fees and additional Trust Fund
expenses over (ii) the Purchase Price for such Mortgage Loan on the date on
which such Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A segregated custodial account or
accounts created and maintained by the Paying Agent pursuant to Section 3.04(b)
on behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "JPMorgan Chase Bank, as Paying Agent, in trust for the registered
Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC8, Gain-on-Sale Reserve
Account." Any such account shall be an Eligible Account.
"Grandview Xxxxxxx Apartments AB Mortgage Loan": That certain
Mortgage Loan identified on the Mortgage Loan Schedule as loan number 48.
"Grandview Xxxxxxx Apartments Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Grandview Xxxxxxx Apartments AB
Mortgage Loan.
"Grandview Xxxxxxx Apartments Intercreditor Agreement": That certain
Intercreditor Agreement Among Noteholders, dated as of December 31, 2003,
between JPMorgan Chase Bank, as Note A Holder, and CBA Mezzanine Capital
Finance, LLC, as Note B Holder. The Grandview Xxxxxxx Apartments Intercreditor
Agreement relates to the Grandview Xxxxxxx Apartments AB Mortgage Loan.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of the Excess Interest and amounts held from time to time in the
Excess Interest Distribution Account, beneficial ownership of which is
represented by the Class NR Certificates.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 2.
"Harbor Plaza Intercreditor Agreement": With respect to the Harbor
Plaza Mortgage Loan, that certain Intercreditor Agreement, dated as of March 19,
2004, between JPMorgan Chase Bank, as senior lender, and Teachers Insurance and
Annuity Association of America, as mezzanine lender.
"Harbor Plaza Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule as loan number 2.
"Harbor Plaza Mezzanine Lender": With respect to the Harbor Plaza
Mortgage Loan, Teachers Insurance and Annuity Association of America.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Hebron Heights AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 31.
"Hebron Heights Companion Loan": That certain loan evidenced by a
promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the Hebron Heights AB Mortgage Loan.
"Hebron Heights Intercreditor Agreement": That certain Intercreditor
Agreement Among Noteholders, dated as of January 12, 2004, between JPMorgan
Chase Bank, as Note A Holder, and CBA Mezzanine Capital Finance, LLC, as Note B
Holder. The Hebron Heights Intercreditor Agreement relates to the Hebron Heights
AB Mortgage Loan.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Trustee, the Depositor, the
Servicer, the Special Servicer, the Paying Agent, the Directing
Certificateholder, the Forum Shops Companion Loan Noteholders and any and all
Affiliates thereof, (ii) does not have any material direct financial interest in
or any material indirect financial interest in any of the Trustee, the
Depositor, the Servicer, the Special Servicer, the Paying Agent, the Directing
Certificateholder, the Forum Shops Companion Loan Noteholders or any Affiliate
thereof and (iii) is not connected with the Trustee, the Depositor, the
Servicer, the Special Servicer, the Paying Agent, the Directing
Certificateholder, the Forum Shops Companion Loan Noteholders or any Affiliate
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, however, that a
Person shall not fail to be Independent of the Trustee, the Depositor, the
Servicer, the Special Servicer, the Paying Agent or any Affiliate thereof merely
because such Person is the beneficial owner of 1% or less of any Class of
securities issued by the Trustee, the Depositor, the Servicer, the Special
Servicer, the Paying Agent, the Directing Certificateholder, the Forum Shops
Companion Loan Noteholders or any Affiliate thereof, as the case may be.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Lower-Tier REMIC within the meaning
of Section 856(d)(3) of the Code if the Lower-Tier REMIC were a real estate
investment trust (except that the ownership test set forth in that Section shall
be considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be at no
expense to the Trustee, the Paying Agent, the Servicer or the Trust, delivered
to the Trustee, the Paying Agent and the Servicer), so long as the Lower-Tier
REMIC does not receive or derive any income from such Person and provided that
the relationship between such Person and the Trust is at arm's length, all
within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except that
the Servicer or the Special Servicer shall not be considered to be an
Independent Contractor under the definition in this clause (i) unless an Opinion
of Counsel has been delivered to the Trustee or (ii) any other Person (including
the Servicer and the Special Servicer) upon receipt by the Trustee, the Paying
Agent and the Servicer of an Opinion of Counsel, which shall be at no expense to
the Trustee, the Paying Agent, the Servicer or the Trust Fund, to the effect
that the taking of any action in respect of any REO Property by such Person,
subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"Initial Purchaser": X.X. Xxxxxx Securities Inc.
"Initial Sub-Servicer": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement with the Servicer as of the Closing Date,
the Sub-Servicer under any such Sub-Servicing Agreement.
"Initial Sub-Servicing Agreement": Any Sub-Servicing Agreement in
effect on the Closing Date.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards (in the case of the Forum Shops Mortgage Loan, or any AB
Mortgage Loan, to the extent of any portion of such amounts are received by the
Paying Agent in connection with such loan, pursuant to the allocations set forth
in the related Intercreditor Agreement).
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Intercreditor Agreements": Each of the Forum Shops Intercreditor
Agreement, the Xxxxxxxx Crossing Intercreditor Agreement, the Hebron Heights
Intercreditor Agreement, the Grandview Xxxxxxx Apartments Intercreditor
Agreement, the Parkwood Apartments Intercreditor Agreement, the Central Park
Office Intercreditor Agreement and the Xxxxxxxx Apartments Intercreditor
Agreement.
"Interest Accrual Period": With respect to any Class of Regular
Certificates, 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.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates for any Distribution Date, an amount equal to the sum of the
Distributable Certificate Interest and the Class Unpaid Interest Shortfall with
respect to such Class of Regular Certificates for such Distribution Date.
"Interest Reserve Account": The trust account or subaccount of the
Distribution Account created and maintained by the Paying Agent pursuant to
Section 3.25 in the name of "JPMorgan Chase Bank, as Paying Agent, in trust for
the registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC8,
Interest Reserve Account," into which the amounts set forth in Section 3.25
shall be deposited directly and which must be an Eligible Account or subaccount
of the Distribution Account.
"Interest Reserve Loan": Each Mortgage Loan that is an Actual/360
Mortgage Loan.
"Interested Person": The Depositor, the Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any Holder
of a Certificate, each Companion Holder (but only with respect to the related AB
Mortgage Loan) or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"Late Collections": With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon prior to the related Determination Date,
whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
or otherwise, which represent late payments or collections of principal or
interest due in respect of such Mortgage Loan or Companion Loan (without regard
to any acceleration of amounts due thereunder by reason of default) on a Due
Date prior to the immediately preceding Determination Date and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property prior to the related Determination Date, whether as
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of principal or interest due or
deemed due in respect of such REO Loan or the predecessor Mortgage Loan or
Companion Loan (without regard to any acceleration of amounts due under the
predecessor Mortgage Loan or Companion Loan by reason of default) on a Due Date
prior to the immediately preceding Determination Date and not previously
recovered. The term "Late Collections" shall specifically exclude Penalty
Charges.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 6
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Controlling Class Option Holder or the Special Servicer
pursuant to Section 3.18(b); (v) such Mortgage Loan is purchased by the
Companion Holder pursuant to Section 3.18(d); (vi) such Mortgage Loan is
purchased by any mezzanine lender pursuant to Section 3.18(e); (vii) such
Mortgage Loan is purchased by the Special Servicer, the Servicer, the Holders of
the Controlling Class or the Holders of the Class LR Certificates pursuant to
Section 9.01; or (viii) such Mortgage Loan is purchased by the applicable Forum
Shops Companion Loan Noteholder pursuant to the Forum Shops Intercreditor
Agreement. 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 Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates pursuant to Section 9.01; or (iii) such REO Property
Mortgage Loan is purchased by the applicable Companion Holder pursuant to
Section 3.18(d).
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with the liquidation of any Specially Serviced Mortgage Loan or REO Property
pursuant to Section 3.18 (including, without limitation, legal fees and
expenses, committee or referee fees and, if applicable, brokerage commissions
and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan as to which the Special
Servicer receives a full or discounted payoff (or an unscheduled partial payment
to the extent such prepayment is required by the Special Servicer as a condition
to a modification of the terms of the related Mortgage Loan and Companion Loan,
if applicable) with respect thereto from the related Mortgagor or any
Liquidation Proceeds or Insurance and Condemnation Proceeds with respect to the
related Mortgage Loan and Companion Loan, if applicable (in any case, other than
amounts for which a Workout Fee has been paid, or will be payable), equal to the
product of the Liquidation Fee Rate and the proceeds of such full or discounted
payoff or the Liquidation Proceeds or Insurance and Condemnation Proceeds (net
of the related costs and expenses associated with the related liquidation)
related to such liquidated Specially Serviced Mortgage Loan, as the case may be;
provided, however, that no Liquidation Fee shall be payable with respect to (x)
the proceeds identified in clause (iii)(A) (except for purchases by (1) the
Majority Controlling Class Certificateholder or its assignee after the first 90
days after the Special Servicer's determination of the fair value of such
Specially Serviced Mortgage Loan, or (2) an unaffiliated assignee of the Special
Servicer which purchases such Specially Serviced Mortgage Loan more than 90 days
following the Special Servicer's determination of the fair value of such
Specially Serviced Mortgage Loan), clause (iii)(C) and clause (iii)(D) (except
to the extent provided in Section 3.18(e)) of the definition of "Liquidation
Proceeds," (y) clause (iv) of the definition of "Liquidation Proceeds" if such
repurchase occurs within the time parameters set forth in this Agreement and in
the related Mortgage Loan Purchase Agreement or, if such repurchase occurs after
such time period, the Mortgage Loan Seller was acting in good faith to resolve
such breach or defect, or (z) clause (v) of the definition of "Liquidation
Proceeds".
"Liquidation Fee Rate": A rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts received by or paid to the
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a Defaulted
Mortgage Loan, through a trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and the terms and conditions
of the related Mortgage Note and Mortgage; (ii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iii) (A) the purchase of a
Defaulted Mortgage Loan by the Majority Controlling Class Certificateholder, the
Special Servicer or the Servicer or any of their assignees pursuant to Section
3.18(a) or Section 3.18(f), as applicable or (B) any other sale thereof pursuant
to Section 3.18(b); (C) the purchase of the AB Mortgage Loan by the related
Companion Holder pursuant to Section 3.18(d); or (D) the purchase of a Mortgage
Loan by any mezzanine lender pursuant to Section 3.18(e); (iv) the repurchase of
a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to Section 6 of
the related Mortgage Loan Purchase Agreement; (v) the purchase of a Mortgage
Loan or REO Property by the Holders of the Controlling Class, the Special
Servicer, the Servicer or the Holders of the Class LR Certificates pursuant to
Section 9.01; (vi) in the case of the Forum Shops Mortgage Loan, if such
Mortgage Loan is purchased by a Forum Shops Companion Loan Noteholder or its
designee pursuant to the Forum Shops Intercreditor Agreement and the Forum Shops
Pooling Agreement; or (vii) in the case of the Xxxxx Town Center Loan, if such
Mortgage Loan is purchased by CIBC Inc. pursuant to Section 3.18(g).
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 1 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 1 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 1; provided, that
the Loan Group 1 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 paid or reimbursed from
principal collections on the Group 1 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
1 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 1 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 1 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 2 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 2 Principal Distribution Amount" had the aggregate
amount available for distribution of principal with respect to Loan Group 2 been
sufficient to make such reimbursements in full, over (B) the aggregate amount
available for distribution of principal with respect to Loan Group 2 (prior to
giving effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 2
Principal Distribution Amount") for that Distribution Date (provided, further,
that, with respect to the amounts identified in clauses (i), (ii) and (iii)
above, if any of such amounts that were reimbursed from principal collections on
the Group 1 Mortgage Loans are subsequently recovered on the related Mortgage
Loan, such recovery will be applied to increase the Loan Group 1 Principal
Distribution Amount for the Distribution Date related to the period in which
such recovery occurs).
"Loan Group 1 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 1
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1, Class A-2, Class A-3 and Class A-4
Certificates, exceeds (2) the aggregate amount distributed in respect of
principal on the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates on
the prior Distribution Date. There will be no Loan Group 1 Principal Shortfall
on the first Distribution Date.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 2 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 2 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 2; provided, that
the Loan Group 2 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 paid or reimbursed from
principal collections on the Group 2 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
2 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 2 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 2 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 1 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 1 Principal Distribution Amount" had the aggregate
amount available for distribution of principal with respect to Loan Group 1 been
sufficient to make such reimbursements in full, over (B) the aggregate amount
available for distribution of principal with respect to Loan Group 1 (prior to
giving effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 1
Principal Distribution Amount") for that Distribution Date (provided, further,
that, with respect to the amounts identified in clauses (i), (ii) and (iii)
above, if any of such amounts that were reimbursed from principal collections on
the Group 2 Mortgage Loans are subsequently recovered on the related Mortgage
Loan, such recovery will be applied to increase the Loan Group 2 Principal
Distribution Amount for the Distribution Date related to the period in which
such recovery occurs).
"Loan Group 2 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 2
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1A Certificates, exceeds (2) the aggregate
amount distributed in respect of principal on the Class A-1A Certificates on the
prior Distribution Date. There will be no Loan Group 2 Principal Shortfall on
the first Distribution Date.
"Loan Pair": Collectively, a Companion Loan and the related AB
Mortgage Loan.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Paying Agent pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "JPMorgan
Chase Bank, as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8, Lower-Tier Distribution Account." Any such
account, accounts or sub-accounts shall be an Eligible Account.
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)), and in the case of the Class LA-1-1, Class
LA-1-2, Class LA-1-3, Class LA-1A-1, Class LA-1A-2, Class LA-1A-3, Class
LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class
LA-2-1, Class LA-2-2, Class LA-2-3, Class LA-2-4, Class LA-2-5, Class LA-4-1,
Class LA-4-2, Class LE-1, Class LE-2, Class LF-1, Class LF-2, Class LG-1, Class
LG-2, Class LH-1, Class LH-2, Class LK-1 and Class LK-2 Uncertificated
Interests, as set forth in Section 4.01(b).
"Lower-Tier Regular Distribution Amount": As defined in Section
4.01(b).
"Lower-Tier REMIC": One of two separate REMICs comprising the Trust
Fund, the assets of which consist of the Mortgage Loans (exclusive of Excess
Interest), any REO Property with respect thereto (or an allocable portion
thereof, in the case of the AB Mortgage Loans) or the Trust Fund's beneficial
interest in the REO Property with respect to the Forum Shops Whole Loan, such
amounts as shall from time to time be held in the Certificate Account, the REO
Account, if any, the Interest Reserve Account, the Gain-on-Sale Reserve Account
and the Lower-Tier Distribution Account with respect thereto, and all other
property included in the Trust Fund that is not in the Upper-Tier REMIC or the
Grantor Trust.
"LTV Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the scheduled principal balance of such Mortgage Loan as of such date (assuming
no defaults or prepayments on such Mortgage Loan prior to that date), and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"MAI": Member of the Appraisal Institute.
"Majority Controlling Class Certificateholder": As of any date, the
Controlling Class Certificateholder owning a majority of the Percentage
Interests in the Controlling Class.
"Xxxxxxxx Apartments AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 92.
"Xxxxxxxx Apartments Companion Loan": That certain loan evidenced by
a promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the Xxxxxxxx Apartments AB Mortgage Loan.
"Xxxxxxxx Apartments Intercreditor Agreement": That certain
Intercreditor Agreement Among Noteholders, dated as of December 19, 2003,
between CIBC Inc., as Note A Holder, and CBA Mezzanine Capital Finance, LLC, as
Note B Holder. The Xxxxxxxx Apartments Intercreditor Agreement relates to the
Xxxxxxxx Apartments AB Mortgage Loan.
"Maturity Date": With respect to any Mortgage Loan or Companion Loan
as of any date of determination, the date on which the last payment of principal
is due and payable under the related Mortgage Note, after taking into account
all Principal Prepayments received prior to such date of determination, but
without giving effect to (i) any acceleration of the principal of such Mortgage
Loan or Companion Loan by reason of default thereunder or (ii) any grace period
permitted by the related Mortgage Note.
"Mezzanine Lenders": The Harbor Plaza Mezzanine Lender and the PHH
Vehicle Management Services Mezzanine Lender.
"Mezzanine Intercreditor Agreements": The Harbor Plaza Intercreditor
Agreement and the PHH Vehicle Management Services Intercreditor Agreement, as of
the Closing Date and, thereafter, mezzanine intercreditor agreements that are
entered into for those Mortgage Loans that permit mezzanine debt by the pledging
of general partnership and managing member equity interests in a Mortgagor.
"Monthly Additional Report on Recoveries and Reimbursements": With
respect to the one-month period immediately prior to the related Determination
Date, a report, in a format reasonably acceptable to the Servicer, the Special
Servicer, the Paying Agent and the Trustee that identifies the following with
respect to such 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 Servicer, the Special Servicer or the Trustee 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 on the related Mortgage Loan received during such
period as contemplated by subsections (iii) and (iv) of Section 3.05(a),
(iii) the extent to which any reimbursement of a Workout-Delayed
Reimbursement Amount made during such period was made from principal
collections on the remainder of the Mortgage Loans received during such
period as contemplated by subsections (iii) and (iv) of Section 3.05(a)
and (iv) the amount of any related Unliquidated Advances;
(c) (i) 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 the one-month period
immediately prior to the related Determination Date and (ii) the extent to
which any such recovery constitutes an amount described by the proviso in
parenthesis in the definition of "Principal Distribution Amount," "Loan
Group 1 Principal Distribution Amount" and/or "Loan Group 2 Principal
Distribution Amount";
(d) (i) the amount of any Unliquidated Advance that became a
Nonrecoverable Advance in the one-month period immediately prior to the
related Determination Date, and (ii) the amount of any Workout-Delayed
Reimbursement Amount that arose in a prior such period, and was not
reimbursed to the Servicer, the Special Servicer or the Trustee in the
one-month period immediately prior to the related Determination Date or a
prior such period (and therefore had not become an Unliquidated Advance)
but which has become a Nonrecoverable Advance in the one-month period
immediately prior to the related Determination Date;
(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 one-month period immediately prior to
the related Determination Date;
(f) (i) the amount of any Nonrecoverable Advance (and accrued and
unpaid interest thereon) that was reimbursed to the Servicer, the Special
Servicer or the Trustee during the one-month period immediately prior to
the related Determination Date, and (ii) the extent (if any) to which any
reimbursement of a Nonrecoverable Advance (and accrued and interest
thereon) was made from principal collections on the Mortgage Loans
received during such period as contemplated by subsection (v) of Section
3.05(a);
(g) (i) the amount of any Advance reimbursed to the Servicer, the
Special Servicer or the Trustee as a Nonrecoverable Advance in a one-month
period immediately prior to the related Determination Date 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 the one-month
period immediately prior to the related Determination Date
(notwithstanding that it was previously determined to constitute a
Nonrecoverable Advance) and (ii) the extent to which any such amount is an
amount described by the proviso in parenthesis in the definition of
"Principal Distribution Amount," "Loan Group 1 Principal Distribution
Amount" and/or "Loan Group 2 Principal Distribution Amount"; and
(h) a reconciliation of interest on Advances accrued on any
Workout-Delayed Reimbursement Amount or any Nonrecoverable Advance, any
Penalty Charges collected during the related one-month period immediately
prior to the related Determination Date and the amount of Penalty Charges
that were applied to pay such interest on Advances.
The preparation of each Monthly Additional Report on Recoveries and
Reimbursements shall constitute a responsibility of the Servicer and shall not
constitute a responsibility of any other party. Each CMSA Loan Periodic Update
File prepared by the Servicer shall be accompanied by a Monthly Additional
Report on Recoveries and Reimbursements; provided that the Servicer shall not be
responsible for the failure to properly prepare such report to the extent that
such failure is the result of the Special Servicer's failure to provide
information required to be provided by the Special Servicer hereunder.
"Monthly Payment": With respect to any Mortgage Loan or Companion
Loan, the scheduled monthly payment of principal and/or interest (other than
Excess Interest) on such Mortgage Loan or Companion Loan, including any Balloon
Payment, which is payable (as the terms of the applicable Mortgage Loan or
Companion Loan may be changed or modified in connection with a bankruptcy or
similar proceedings involving the related Mortgagor or by reason of a
modification, extension, waiver or amendment granted or agreed to pursuant to
the terms hereof) by a Mortgagor from time to time under the related Mortgage
Note and applicable law, without regard to any acceleration of principal of such
Mortgage Loan or Companion Loan by reason of default thereunder and without
respect to any Excess Interest.
"Moody's": Xxxxx'x Investors Service, Inc. If neither Moody's nor
any successor remains in existence, "Moody's" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Servicer, the Paying Agent and the Special Servicer, and specific
ratings of Moody's herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee and/or leasehold interest in the related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to any Mortgage Loan, but subject to
Section 2.01, collectively the following documents:
(i) the original executed Mortgage Note bearing, or
accompanied by, all prior and intervening endorsements, assignments
or allonge showing a complete chain of endorsement or assignment
from the originator of the Mortgage Loan to the most recent
endorsee, and further endorsed (at the direction of the Depositor
given pursuant to the applicable Mortgage Loan Purchase Agreement),
on its face or by allonge attached thereto, without recourse,
representation or warranty, express or implied, to the order of the
Trustee in the following form: "Pay to the order of Xxxxx Fargo
Bank, N.A., as Trustee for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC8; provided that the
requirements of this clause (i) will be satisfied by delivery of a
signed lost note affidavit and indemnity properly assigned or
endorsed to the Trustee as described above, with a copy of the
Mortgage Note attached to it;
(ii) the original Mortgage (or a certified or other copy
thereof from the applicable recording office) and originals (or
certified or other copies from the applicable recording office) of
any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most
recent mortgagee of record, in each case with evidence of recording
indicated thereon;
(iii) an original assignment of the Mortgage, in complete and
recordable form, executed by the most recent assignee of record
thereof prior to the Trustee, or if none, by the originator to
"Xxxxx Fargo Bank, N.A., as Trustee for the registered holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC8";
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record, in each case with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage and to the
extent not already assigned pursuant to preceding clause (iii)), in
recordable form, executed by the applicable assignee of record to
"Xxxxx Fargo Bank, N.A., as Trustee for the registered holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC8";
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in complete
form, executed by the applicable Mortgage Loan Seller to "Xxxxx
Fargo Bank, N.A., as Trustee for the registered holders of X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC8";
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon (where appropriate) in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee or
leasehold interest in the Mortgaged Property, or if the policy has
not yet been issued, an original or copy of a "marked-up" written
commitment, escrow instructions or the pro forma or specimen title
insurance policy (marked as binding and in all cases countersigned
by the title insurer or its authorized agent) in connection with the
related Mortgage Loan;
(x) the original or copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan and any intervening
assignments;
(xi) all UCC Financing Statements, assignments and
continuation statements or copies thereof, as filed or recorded, or
in form that is complete and suitable for filing or recording
(according to Revised Article 9 of the Uniform Commercial Code), as
appropriate, or other evidence of filing or recording sufficient to
perfect (and maintain the perfection of) the security interest held
by the originator of the Mortgage Loan (and each assignee of record
prior to the Trustee) in and to the personalty of the Mortgagor at
the Mortgaged Property (in each case with evidence of filing or
recording thereon), and to transfer such security interest to the
Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional
Debt, a co-lender agreement, subordination agreement or
intercreditor agreement, pursuant to which such Additional Debt will
be fully subordinated to such Mortgage Loan;
(xiv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a Ground
Lease, the related Ground Lease or a certified copy thereof;
(xvi) a copy of any letter of credit securing such Mortgage
Loan and, within thirty (30) days of the Closing Date, a copy of the
appropriate transfer or assignment documents for such letter of
credit;
(xvii) a copy of any Environmental Indemnity Agreement,
together with a copy of any environmental insurance policy;
(xviii) copies of any loan agreement(s) or escrow
agreement(s);
(xix) a copy of any franchise agreements and comfort letters
related thereto;
(xx) a copy of any lock box or cash management agreement(s);
(xxi) a list related to such Mortgage Loan indicating the
related Mortgage loan documents included in the related Mortgage
File (the "Mortgage Loan Checklist");
(xxii) with respect to each Companion Loan, all of the above
documents with respect to such Companion Loan and the related
Intercreditor Agreement; provided that a copy of each mortgage note
relating to such Companion Loan, rather than the original, shall be
provided, and no assignments shall be provided; and
(xxiii) with respect to the Forum Shops Mortgage Loan, a copy
of the Forum Shops Pooling Agreement;
provided, however, that whenever the term "Mortgage File" is used to refer to
documents held by the Trustee, or a Custodian appointed thereby, such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually received by the Trustee or a Custodian
appointed thereby; provided, further, that, if there exists with respect to any
Crossed Group only one original or certified copy of any document referred to in
the definition of "Mortgage File" covering all of the Mortgage Loans in such
Crossed Group, then the inclusion of such original or certified copy in the
Mortgage File for any of the Mortgage Loans constituting such Crossed Group
shall be deemed the inclusion of such original or certified copy in the Mortgage
File for each such Mortgage Loan.
With respect to the Forum Shops Mortgage Loan, the preceding
document delivery requirements will be met by the delivery by the applicable
Mortgage Loan Seller of copies of the documents specified above (other than the
Mortgage Note (and all intervening endorsements) evidencing the Forum Shops
Mortgage Loan, with respect to which the originals shall be required), including
a copy of the Mortgage securing the Forum Shops Mortgage Loan.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. As used in this Agreement, the term "Mortgage Loan" does
not include any Companion Loan.
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan i.d. number and loan servicing number (as
specified in Exhibit A to the Prospectus);
(ii) the Mortgagor's name;
(iii) xxx xxxxxx xxxxxxx (xxxxxxxxx xxxx, xxxxxx, xxxxx, zip
code and name) of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining
term to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xi) the applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is an Actual/360 Mortgage
Loan;
(xiii) whether such Mortgage Loan has an Anticipated Repayment
Date and if so, the Anticipated Repayment Date;
(xiv) the Revised Rate of such Mortgage Loan, if any;
(xv) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a Ground Lease;
(xvi) identifying any Mortgage Loan(s) with which such
Mortgage Loan is cross-defaulted or cross-collateralized;
(xvii) the originator of such Mortgage Loan and the Mortgage
Loan Seller;
(xviii) whether such Mortgage Loan has a guarantor;
(xix) whether such Mortgage Loan is secured by a letter of
credit;
(xx) amount of any reserve or escrowed funds;
(xxi) number of grace days for debt service payments;
(xxii) whether an operations and maintenance plan exists and,
if so, what repairs are required;
(xxiii) whether a cash management agreement or lock-box
agreement is in place;
(xxiv) the total square feet/units of the related Mortgaged
Property and the related units of measure;
(xxv) the general property type of the related Mortgaged
Property;
(xxvi) whether the Mortgage Loan permits defeasance;
(xxvii) the interest accrual period; and
(xxviii) the applicable Loan Group to which the Mortgage Loan
belongs.
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of: (1) JPMorgan Chase Bank, a New York
banking corporation, or its successor in interest and (2) CIBC Inc., a Delaware
corporation, or its successor in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Companion
Loan on or prior to its Maturity Date, the annual rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan or
Companion Loan from time to time in accordance with the related Mortgage Note
and applicable law, exclusive of the Excess Rate; (ii) any Mortgage Loan or
Companion Loan after its Maturity Date, the annual rate described in clause (i)
above determined without regard to the passage of such Maturity Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Due Period,
exceeds (b) the aggregate amount deposited by the Servicer in the Certificate
Account for such Distribution Date pursuant to Section 3.19 in connection with
such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to any of the Certificate
Account, the Servicing Accounts or the REO Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date, the amount, if
any, by which the aggregate of all interest and other income realized during
such period on funds relating to the Trust Fund held in such account, exceeds
the aggregate of all losses, if any, incurred during such period in connection
with the investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any of the Certificate
Account, the Servicing Accounts or the REO Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date, the amount by
which the aggregate of all losses, if any, incurred during such period in
connection with the investment of funds relating to the Trust Fund held in such
account in accordance with Section 3.06, exceeds the aggregate of all interest
and other income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan
as of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the Administrative Cost Rate; provided, that for
purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any
Mortgage Loan will be determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the Servicer,
Special Servicer or resulting from a bankruptcy, insolvency or similar
proceeding involving the Mortgagor; provided, further, that if any Mortgage Loan
does not accrue interest on the basis of a 360-day year consisting of twelve
30-day months, then, solely for purposes of calculating Pass-Through Rates, the
Net Mortgage Rate of such Mortgage Loan for any one-month period preceding a
related Due Date will be the annualized rate at which interest would have to
accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued (exclusive of Default Interest or Excess Interest) in
respect of such Mortgage Loan during such one-month period at the related Net
Mortgage Rate; provided, further, that with respect to each Interest Reserve
Loan, the Net Mortgage Rate for the one month period (A) preceding the Due Dates
that occur in January and February in any year which is not a leap year or
preceding the Due Date that occurs in February in any year which is a leap year,
and (B) preceding the Due Date in March, will be the per annum rate stated in
the related Mortgage Note less the related Administrative Cost Rate. With
respect to any REO Loan, the Net Mortgage Rate shall be calculated as described
above, determined as if the predecessor Mortgage Loan had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" endorsed and
put forth by CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Lower-Tier REMIC, including any lease
renewed, modified or extended on behalf of the Lower-Tier REMIC, if the Special
Server has the right to renegotiate the terms of such lease on behalf of the
Lower-Tier REMIC.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the Servicer or the Trustee, as applicable, will not be
ultimately recoverable, together with any accrued and unpaid interest thereon at
the Reimbursement Rate, from Late Collections or any other recovery on or in
respect of such Mortgage Loan or REO Loan; provided, however, that the Special
Servicer may, at its option, make a determination in accordance with the
Servicing Standards, that any P&I Advance previously made or proposed to be made
is a Nonrecoverable P&I Advance and shall deliver to the Servicer and the
Trustee (and with respect to the Forum Shops Mortgage Loan, to any Other
Servicer of the Forum Shops Companion Notes) notice of such determination. Any
such determination shall be conclusive and binding on the Servicer and the
Trustee. Any determination made by the Forum Shops Special Servicer that a P&I
Advance on the Forum Shops Whole Loan is a Nonrecoverable P&I Advance shall be
conclusive and binding on the Servicer and the Trustee. In making such
determination of recoverability, such Person will be entitled to consider (among
other things) only the obligations of the Mortgagor under the terms of the
related Mortgage Loan as it may have been modified, to consider (among other
things) the related Mortgaged Properties in their "as is" or then current
conditions and occupancies, as modified by such party's assumptions (consistent
with the Servicing Standards in the case of the Servicer) regarding the
possibility and effects of future adverse change with respect to such Mortgaged
Properties, to estimate and consider (among other things) future expenses and to
estimate and consider (consistent with the Servicing Standards in the case of
the Servicer) (among other things) the timing of recoveries. In addition, any
such Person may update or change its determinations of recoverability at any
time (but not reverse any other Person's determination that a P&I Advance is a
Nonrecoverable Advance) and, consistent with the Servicing Standards in the case
of the Servicer, may obtain from the Special Servicer any reasonably required
analysis, Appraisals or market value estimates or other information in the
Special Servicer's possession for such purposes. Absent bad faith, the
Servicer's, Special Servicer's or Trustee's determination as to the
recoverability of any P&I Advance shall be conclusive and binding on the
Certificateholders. The determination by the Servicer, the Special Servicer or
the Trustee, as applicable, that it has made a Nonrecoverable P&I Advance or
that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I
Advance, or any updated or changed determination of recoverability, shall be
evidenced by an Officer's Certificate delivered by the Servicer or the Special
Servicer to the Trustee, the Servicer, the Special Servicer, the Directing
Certificateholder, the Paying Agent and the Depositor, as applicable, or by the
Trustee to the Depositor, the Servicer, the Special Servicer, the Paying Agent
and the Directing Certificateholder, as applicable. The Officer's Certificate
shall set forth such determination of nonrecoverability and the considerations
of the Servicer, the Special Servicer or the Trustee, as applicable, forming the
basis of such determination (which shall be accompanied by, to the extent
available, income and expense statements, rent rolls, occupancy status, property
inspections and any other information used by the Servicer, the Special Servicer
or the Trustee, as applicable, to make such determination and shall include any
existing Appraisal of the related Mortgage Loan or Mortgaged Property). The
Trustee and the Servicer shall be entitled to conclusively rely on the
Servicer's or the Special Servicer's determination that a P&I Advance is or
would be nonrecoverable. In the case of a cross-collateralized Mortgage Loan,
such recoverability determination shall take into account the
cross-collateralization of the related cross-collateralized Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan (other than the Forum
Shops Mortgage Loan) or REO Property which, in the reasonable judgment of the
Servicer, the Special Servicer or the Trustee, as the case may be, will not be
ultimately recoverable, together with any accrued and unpaid interest thereon,
at the Reimbursement Rate, from Late Collections or any other recovery on or in
respect of such Mortgage Loan or REO Property. In making such determination of
recoverability, such Person will be entitled to consider (among other things)
only the obligations of the Mortgagor under the terms of the related Mortgage
Loan as it may have been modified, to consider (among other things) the related
Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions (consistent with the
Servicing Standards in the case of the Servicer) regarding the possibility and
effects of future adverse change with respect to such Mortgaged Properties, to
estimate and consider (consistent with the Servicing Standards in the case of
the Servicer) (among other things) future expenses and to estimate and consider
(among other things) the timing of recoveries. In addition, any such Person may
update or change its determinations of recoverability at any time (but not
reverse any other Person's determination that a Servicing Advance is a
Nonrecoverable Advance) and, consistent with the Servicing Standards in the case
of the Servicer, may obtain from the Special Servicer any reasonably required
analysis, Appraisals or market value estimates or other information in the
Special Servicer's possession for such purposes. The determination by the
Servicer, the Special Servicer or the Trustee, as the case may be, that it has
made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance,
if made, would constitute a Nonrecoverable Servicing Advance, or any updated or
changed recoverability determination, shall be evidenced by an Officer's
Certificate delivered by either of the Special Servicer or Servicer to the other
and to the Trustee, the Directing Certificateholder, the Paying Agent and the
Depositor, or by the Trustee to the Depositor, the Servicer, the Special
Servicer, the Paying Agent and the Directing Certificateholder, as applicable;
provided, however, that the Special Servicer may, at its option, make a
determination in accordance with the Servicing Standards, that any Servicing
Advance previously made or proposed to be made is a Nonrecoverable Servicing
Advance and shall deliver to the Servicer and the Trustee notice of such
determination. Any such determination shall be conclusive and binding on the
Servicer and the Trustee. The Officer's Certificate shall set forth such
determination of nonrecoverability and the considerations of the Servicer, the
Special Servicer or the Trustee, as applicable, forming the basis of such
determination (which shall be accompanied by, to the extent available, such as
related income and expense statements, rent rolls, occupancy status and property
inspections, and shall include an Appraisal of the related Mortgage Loan or
Mortgaged Property). The Special Servicer shall promptly furnish any party
required to make Servicing Advances hereunder with any information in its
possession regarding the Specially Serviced Mortgage Loans and REO Properties as
such party required to make Servicing Advances may reasonably request for
purposes of making recoverability determinations. The Trustee and the Servicer
will be entitled to conclusively rely on the Servicer's or Special Servicer's,
as the case may be, determination that a Servicing Advance is or would be
nonrecoverable. In the case of a cross-collateralized Mortgage Loan, such
recoverability determination shall take into account the cross-collateralization
of the related cross-collateralized Mortgage Loan. The determination as to the
recoverability of any servicing advance previously made or proposed to be made
in respect of the Forum Shops Whole Loan shall be made by the Forum Shops
Primary Servicer, the Forum Shops Special Servicer or the Forum Shops Trustee,
as the case may be, pursuant to the Forum Shops Pooling Agreement. Any such
determination made by the Forum Shops Primary Servicer, the Forum Shops Special
Servicer or the Forum Shops Trustee, as the case may be, shall be conclusive and
binding on the Certificateholders and may, in all cases, be conclusively relied
upon by the Servicer and the Trustee.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X-1, Class X-2, Class A-1A, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class NR, Class R or Class
LR Certificate.
"Non-Specially Serviced Mortgage Loan": Any Mortgage Loan other than
a Specially Serviced Mortgage Loan.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes. A Person
shall be treated as a Non-U.S. Person, (A) notwithstanding clause (i) of the
preceding sentence, if it is a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is
owned, directly or indirectly, through one more partnerships, trusts or other
pass-through entities by a Non-U.S. Person or (B) such Person is a U.S. Person
with respect to whom income from a Residual Certificate is attributable to a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other U.S. Person.
"Notional Amount": In the case of the Class X-1 Certificates, the
Class X-1 Notional Amount. In the case of the Class X-2 Certificates, the Class
X-2 Notional Amount. In the case of each Component, the amount set forth in the
applicable definition thereof.
"Offered Certificates": The Class A-1, Class A-2, Class A-3, Class
A-4, Class B, Class C, Class D and Class E Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Servicer or the Special Servicer, as the case may be, or a Responsible
Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Servicer or the Special
Servicer, acceptable in form and delivered to the Paying Agent and the Trustee,
except that any opinion of counsel relating to (a) the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, (b) compliance with the
REMIC Provisions, (c) qualification of the Grantor Trust as a grantor trust
under subpart E, Part I of subchapter J of the Code for federal income tax
purposes or (d) the resignation of the Servicer, the Special Servicer or the
Depositor pursuant to Section 6.04, must be an opinion of counsel who is in fact
Independent of the Depositor, the Servicer or the Special Servicer, as
applicable.
"Option Price": As defined in Section 3.18(a).
"Original Certificate Balance": With respect to any Class of
Certificates (other than the Class X Certificates and the Residual
Certificates), the initial aggregate principal amount thereof as of the Closing
Date, in each case as specified in the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X-1 Notional
Amount and Class X-2 Notional Amount, the initial Notional Amount thereof as of
the Closing Date, as specified in the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property based
upon the Appraisal conducted in connection with the origination of the related
Mortgage Loan.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Other Pooling and Servicing Agreement": Any of the pooling and
servicing agreements that create a trust fund whose assets include a Pari Passu
Serviced Companion Loan.
"Other Servicer": Any servicer under an Other Pooling and Servicing
Agreement.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Servicer or the Trustee, as applicable, pursuant to Section 4.03 or
Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the Business Day prior to the P&I Advance Date.
"Pari Passu Loan": The Forum Shops Mortgage Loan.
"Pari Passu Serviced Companion Loan": Any of the Forum Shops
Companion Notes.
"Parkwood Apartments AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 10.
"Parkwood Apartments Companion Loan": That certain loan evidenced by
a promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the Parkwood Apartments AB Mortgage Loan.
"Parkwood Apartments Intercreditor Agreement": That certain
Intercreditor Agreement Among Noteholders, dated as of March 8, 2004, between
CIBC Inc., as Note A Holder, and CBA Mezzanine Capital Finance, LLC, as Note B
Holder. The Parkwood Apartments Intercreditor Agreement relates to the Parkwood
Apartments AB Mortgage Loan.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-2 Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class A-4
Pass-Through Rate, the Class A-1A Pass-Through Rate, the Class B Pass-Through
Rate, the Class C Pass-Through Rate, the Class D Pass-Through Rate, the Class E
Pass-Through Rate, the Class F Pass-Through Rate, the Class G Pass-Through Rate,
the Class H Pass-Through Rate, the Class J Pass-Through Rate, the Class K
Pass-Through Rate, the Class L Pass-Through Rate, the Class M Pass-Through Rate,
the Class N Pass-Through Rate, the Class P Pass-Through Rate, the Class NR
Pass-Through Rate, the Class X-1 Pass-Through Rate or the Class X-2 Pass-Through
Rate.
"Paying Agent": JPMorgan Chase Bank, a New York banking corporation,
or any successor appointed thereto pursuant to Section 5.06 or any successor
paying agent appointed hereunder.
"Paying Agent Fee": The portion of the Trustee Fee payable to the
Paying Agent pursuant to the terms hereof calculated at the Paying Agent Fee
Rate.
"Paying Agent Fee Rate": 0.0007% per annum.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan), any amounts actually collected thereon from the Mortgagor that
represent late payment charges and/or Default Interest, other than a Yield
Maintenance Charge or Excess Interest.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the initial
Certificate Balance or Notional Amount, as applicable, of such Class of
Certificates as of the Closing Date. With respect to a Residual Certificate, the
percentage interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Paying
Agent if otherwise qualifying hereunder), regardless whether issued by the
Depositor, the Servicer, the Special Servicer, the Trustee or any of their
respective Affiliates and having the required ratings, if any, provided for in
this definition and which shall not be subject to liquidation prior to maturity:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America, Xxxxxx Xxx, Xxxxxxx Mac or any agency or instrumentality of
the United States of America, the obligations of which are backed by
the full faith and credit of the United States of America that
mature in one (1) year or less from the date of acquisition;
provided that any obligation of, or guarantee by, Xxxxxx Mae or
Xxxxxxx Mac, other than an unsecured senior debt obligation of
Xxxxxx Mae or Xxxxxxx Mac, shall be a Permitted Investment only if
such investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Certificate as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in one (1) year or less after the
date of issuance and are issued or held by any depository
institution or trust company (including the Trustee) incorporated or
organized under the laws of the United States of America or any
State thereof and subject to supervision and examination by federal
or state banking authorities, so long as the commercial paper or
other short-term debt obligations of such depository institution or
trust company are rated in the highest rating categories of each
Rating Agency or such other rating as would not result in the
downgrading, withdrawal or qualification of the then-current rating
assigned by each Rating Agency to any Certificate, as evidenced in
writing;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or
trust company (acting as principal) described in clause (ii) above;
(iv) debt obligations bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which mature in one (1) year
or less from the date of acquisition, which debt obligations are
rated in the highest rating categories of each Rating Agency or such
other rating as would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Certificate as specified in writing by each of the
Rating Agencies; provided, however, that securities issued by any
particular corporation will not be Permitted Investments to the
extent that investment therein will cause the then-outstanding
principal amount of securities issued by such corporation and held
in the accounts established hereunder to exceed 10% of the sum of
the aggregate principal balance and the aggregate principal amount
of all Permitted Investments in such accounts;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations) of any
corporation or other entity organized under the laws of the United
States or any state thereof payable on demand or on a specified date
maturing in one (1) year or less from the date of acquisition
thereof and which is rated in the highest rating category of each
Rating Agency (or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating
Agencies);
(vi) money market funds, rated in the highest rating
categories of each Rating Agency; and
(vii) any other demand, money market or time deposit,
obligation, security or investment, (a) with respect to which each
Rating Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of the
then-current rating of the Certificates that are currently being
rated by such Rating Agency and (b) which qualifies as a "cash flow
investment" pursuant to Section 860G(a)(6) of the Code;
provided, however, that in each case if the investment is rated by S&P, (a) it
shall not have an "r" highlighter affixed to its rating from S&P, (b) it shall
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change and (c) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any, and move proportionately with such index; and
provided, further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; and provided, further, however, that no amount
beneficially owned by the Upper-Tier REMIC or the Lower-Tier REMIC (even if not
yet deposited in the Trust) may be invested in investments (other than money
market funds) treated as equity interests for federal income tax purposes,
unless the Servicer receives an Opinion of Counsel, at its own expense, to the
effect that such investment will not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC under the Code or result in
imposition of a tax on the Upper-Tier REMIC or the Lower-Tier REMIC. Permitted
Investments that are subject to prepayment or call may not be purchased at a
price in excess of par.
"Permitted Transferee": Any Person who is a Qualified Institutional
Buyer.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PHH Vehicle Management Services Intercreditor Agreement": With
respect to the PHH Vehicle Management Services Mortgage Loan, that certain
Intercreditor Agreement, dated as of March 9, 2004, between CIBC Inc., as senior
lender, and National City Bank, as mezzanine lender.
"PHH Vehicle Management Services Mortgage Loan": The Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 8.
"PHH Vehicle Management Services Mezzanine Lender": With respect to
the PHH Vehicle Management Services Mortgage Loan, National City Bank.
"Plan": As defined in Section 5.02(c).
"Xxxxx Xxxxx-Up Payment": As defined in Section 45 of Exhibit B of
the Mortgage Loan Purchase Agreement, between CIBC Inc. and the Depositor.
"Xxxxx Town Center Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule as loan number 11.
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization of premium, if any, on the Certificates for federal income
tax purposes; provided, it is assumed that each Mortgage Loan with an
Anticipated Repayment Date prepays on such date.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Due Date and prior to the following
Determination Date, the amount of interest (net of the related Servicing Fees
(and with respect to the Forum Shops Mortgage Loan, the Forum Shops Primary
Servicing Fees) and Excess Interest), to the extent collected from the related
Mortgagor (without regard to any Prepayment Premium or Yield Maintenance Charge
actually collected), that would have accrued at a rate per annum equal to the
sum of (x) the related Net Mortgage Rate for such Mortgage Loan and (y) the
Trustee Fee Rate, on the amount of such Principal Prepayment from and after such
Due Date and ending on the date of such prepayment.
"Prepayment Interest Shortfall": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Determination Date (or, with respect to
each Mortgage Loan with a Due Date occurring after the related Determination
Date, the related Due Date) and prior to the following Due Date, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any Prepayment Premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
such Due Date.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Primary Servicing Fee": The monthly fee payable by the Servicer
from the Servicing Fee to each Initial Sub-Servicer, which monthly fee accrues
at the rate per annum specified as such in the Sub-Servicing Agreement with such
Initial Sub-Servicer.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of the New York city edition of The Wall Street Journal (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Paying Agent in its reasonable discretion) as may be in
effect from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Paying Agent in its reasonable discretion)
as may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date and any Class of Regular Certificates, an amount equal to the sum of (a)
the Principal Shortfall for such Distribution Date, (b) the Scheduled Principal
Distribution Amount for such Distribution Date and (c) the Unscheduled Principal
Distribution Amount for such Distribution Date; provided, 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 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
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": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date with respect to the Mortgage Loans, the amount, if any, by
which (a) the related Principal Distribution Amount for the preceding
Distribution Date, exceeds (b) the aggregate amount distributed in respect of
principal on the Class A, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class P and Class NR
Certificates for such preceding Distribution Date pursuant to Section 4.01(a) on
such preceding Distribution Date. The Principal Shortfall for the initial
Distribution Date will be zero.
"Privileged Person": Each Rating Agency, any of the Holders of each
Class of Certificates, each Underwriter, the Initial Purchaser, each Mortgage
Loan Seller, certain financial market publishers (which initially shall be
Bloomberg, L.P., Xxxxx, LLC, Intex and Standard & Poor's Conquest), each
Companion Holder (but only with respect to the related Companion Loan) each
party to this Agreement, the Directing Certificateholder, (the Forum Shops
Companion Loan Noteholders, but only with respect to the Forum Shops Mortgage
Loan) any designee of the Depositor, the Paying Agent and any other Person who
shall have provided the Paying Agent with a certificate, using the forms
attached hereto as Exhibit V-1 or Exhibit V-2, as applicable, certifying that
such person is a Certificateholder, a beneficial owner or a prospective
purchaser of a Certificate.
"Prospectus": The Prospectus dated March 25, 2004, as supplemented
by the Prospectus Supplement dated March 25, 2004, relating to the offering of
the Offered Certificates.
"Puerto Rico Tax Legislation": As defined in Section 21 of the
Mortgage Loan Purchase Agreement, between CIBC Inc. and the Depositor.
"Purchase Option Notice": As defined in Section 3.18(a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan) to
be purchased by a Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement, by the Majority Controlling Class
Certificateholder, the Special Servicer or the Servicer pursuant to Section
3.18(b), or by the Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates pursuant to
Section 9.01 or to be otherwise sold pursuant to Section 3.18(c) or Section
3.18(g), a price equal to:
(i) the outstanding principal balance of such Mortgage Loan
(or related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or
the related REO Loan) at the related Mortgage Rate in effect from
time to time (exclusive of Excess Interest) to but not including the
Due Date immediately preceding the Determination Date for the
related Due Period in which such Purchase Price is included in the
Available Distribution Amount; plus
(iii) all related Servicing Advances that are unreimbursed out
of collections from the Mortgage Loan and accrued and unpaid
interest on related Advances at the Reimbursement Rate, and any
Special Servicing Fees whether paid or then owing allocable to such
Mortgage Loan (or the related REO Loan); plus
(iv) any other additional expenses of the Trust Fund relating
to such Mortgage Loan (or REO Loan); plus
(v) if such Mortgage Loan (or REO Loan) is being purchased by
a Mortgage Loan Seller pursuant to Section 6 of the applicable
Mortgage Loan Purchase Agreement, to the extent not otherwise
included pursuant to clauses (iii) and (iv) hereof, all reasonable
out-of-pocket expenses reasonably incurred or to be incurred by the
Servicer, the Special Servicer, the Depositor or the Trustee in
respect of the Breach or Defect giving rise to the repurchase
obligation, including any expenses arising out of the enforcement of
the repurchase obligation, including, without limitation, legal fees
and expenses relating to the enforcement of such repurchase
obligation; plus
(vi) Liquidation Fees, if any, payable with respect to such
Mortgage Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional buyer"
as defined in Rule 144A under the Act.
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with a
minimum claims paying ability rating of at least "A3" by Xxxxx'x and "A-" by S&P
and (ii) with respect to the fidelity bond and errors and omissions Insurance
Policy required to be maintained pursuant to Section 3.07(c), except as set
forth in Section 3.07(c), an insurance company that has a claims paying ability
rated no lower than two ratings below the rating assigned to the then highest
rated outstanding Certificate, but in no event lower than "A3" by Xxxxx'x and
"A-" by S&P (or, if not rated by one of such Rating Agencies, then at least "A-"
by two other nationally recognized statistical rating organizations (which may
include the other Rating Agency)) or, in the case of clauses (i) and (ii), such
other rating as each Rating Agency shall have confirmed in writing will not
cause such Rating Agency to downgrade, qualify or withdraw the then-current
rating assigned to any of the Certificates that are then currently being rated
by such Rating Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, whether or not received, not in excess of
the Stated Principal Balance of the deleted Mortgage Loan as of the Due Date in
the calendar month during which the substitution occurs; (ii) have a Mortgage
Rate not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have
the same Due Date as and grace period no longer than that of the deleted
Mortgage Loan; (iv) accrue interest on the same basis as the deleted Mortgage
Loan (for example, on the basis of a 360-day year consisting of twelve 30-day
months); (v) have a remaining term to stated maturity not greater than, and not
more than two years less than, the remaining term to stated maturity of the
deleted Mortgage Loan; (vi) have a then current loan-to-value ratio not higher
than that of the deleted Mortgage Loan as of the Closing Date and a current
loan-to-value ratio not higher than the then current loan-to-value ratio of the
deleted Mortgage Loan, in each case using the "value" as determined using an MAI
appraisal; (vii) comply in all material respects with all of the representations
and warranties set forth in the applicable Mortgage Loan Purchase Agreement;
(viii) have an environmental report with respect to the related Mortgaged
Property and which will be delivered as a part of the related Servicing File and
discloses no material environmental issues; (ix) have a then current debt
service coverage ratio of not less than the original debt service coverage ratio
of the deleted Mortgage Loan as of origination and a current debt service
coverage ratio of not less than the current debt service coverage ratio of the
deleted Mortgage Loan; (x) constitute a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code as evidenced by an Opinion of
Counsel (provided at the applicable Mortgage Loan Seller's expense); (xi) not
have a maturity date occurring or an amortization schedule ending after the date
that is two years prior to the Rated Final Distribution Date; (xii) have
comparable prepayment restrictions to those of the Deleted Mortgage Loan; (xiii)
not be substituted for a deleted Mortgage Loan unless the Trustee has received
prior confirmation in writing by each Rating Agency that such substitution will
not result in the withdrawal, downgrade, or qualification of the then current
rating assigned by the Rating Agency to any Class of Certificates then rated by
the Rating Agency (the cost, if any, of obtaining such confirmation to be paid
by the applicable Mortgage Loan Seller); (xiv) have been approved by the
Directing Certificateholder; (xv) prohibit defeasance within two years of the
Closing Date, (xvi) not be substituted for a deleted Mortgage Loan if it would
result in the termination of the REMIC status of either of the REMICs
established under this Agreement or the imposition of tax on any of such REMICs
other than a tax on income expressly permitted or contemplated to be imposed by
the terms of this Agreement, as determined by an Opinion of Counsel; (xvii)
become a part of the same Loan Group as the deleted Mortgage Loan and (xviii)
have an engineering report with respect to the related Mortgaged Property which
will be delivered as a part of the related Servicing File. In the event that
more than one mortgage loan is substituted for a deleted Mortgage Loan, then the
amounts described in clause (i) shall be determined on the basis of aggregate
Stated Principal Balances and each such proposed Qualified Substitute Mortgage
Loan shall individually satisfy each of the requirements specified in (ii)
through (xviii), except that the rates described in clause (ii) above and the
remaining term to stated maturity referred to in clause (v) above shall be
determined on a weighted average basis; provided, that any individual Mortgage
Rate, less the Administrative Cost Rate, shall not be less than the Pass-Through
Rate of the Class A-3 Certificates, if the Class A-3 Certificates are then
outstanding. When a Qualified Substitute Mortgage Loan is substituted for a
deleted Mortgage Loan, the applicable Mortgage Loan Seller shall certify that
the Mortgage Loan meets all of the requirements of the above definition and
shall send such certification to the Trustee and the Directing
Certificateholder. A Qualified Substitute Mortgage Loan may not be substituted
for the Forum Shops Mortgage Loan.
"Rated Final Distribution Date": As to each Class of Certificates,
January 12, 2039, the first Distribution Date after the 24th month following the
end of the amortization term for the Mortgage Loan that, as of the Cut-off Date,
has the longest remaining amortization term.
"Rating Agency": Each of Xxxxx'x and S&P or their successors in
interest. If neither such rating agency nor any successor remains in existence,
"Rating Agency" shall be deemed to refer to such nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Servicer, and specific ratings of Xxxxx'x and S&P herein referenced shall be
deemed to refer to the equivalent ratings of the party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Regular Certificate": Any of the Class A, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class P, Class NR and Class X Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Book-Entry Certificates": The Regular Certificates
sold in offshore transactions in reliance on Regulation S and represented by one
or more Book-Entry Certificates deposited with the Paying Agent as custodian for
the Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate and shall be compounded annually.
"Related Certificates," "Related Uncertificated Lower-Tier
Interests," and "Related Components of Class X Certificates": For each of the
following Classes of Uncertificated Lower-Tier Interests, the related Class of
Certificates and the related Components of Class X Certificates set forth below;
for the following Components of the Class X Certificates, the related Class of
Uncertificated Lower-Tier Interests and the related Class of Certificates set
forth below, and for the following Classes of Uncertificated Lower-Tier
Interests, the related Components of the Class X Certificates and the related
Class of Certificates set forth below:
Related Uncertificated Related Components of
Related Certificates Lower-Tier Interest Class X Certificates
--------------------------------------------------------------------------------
Class A-1 Certificates Class LA-1-1 Uncertificated XA-1-1
Interest
Class LA-1-2 Uncertificated XA-1-2
Interest
Class LA-1-3 Uncertificated XA-1-3
Interest
Class A-2 Certificates Class LA-2-1 Uncertificated XA-2-1
Interest
Class LA-2-2 Uncertificated XA-2-2
Interest
Class LA-2-3 Uncertificated XA-2-3
Interest
Class LA-2-4 Uncertificated XA-2-4
Interest
Class LA-2-5 Uncertificated XA-2-5
Interest
Class A-3 Certificates Class LA-3 Uncertificated XA-3
Interest
Class A-4 Certificates Class LA-4-1 Uncertificated XA-4-1
Interest
Class LA-4-2 Uncertificated XA-4-2
Interest
Class A-1A Certificates Class LA-1A-1 XA-1A-1
Uncertificated Interest
Class LA-1A-2 XA-1A-2
Uncertificated Interest
Class LA-1A-3 XA-1A-3
Uncertificated Interest
Class LA-1A-4 XA-1A-4
Uncertificated Interest
Class LA-1A-5 XA-1A-5
Uncertificated Interest
Class LA-1A-6 XA-1A-6
Uncertificated Interest
Class LA-1A-7 XA-1A-7
Uncertificated Interest
Class LA-1A-8 XA-1A-8
Uncertificated Interest
Class B Certificates Class LB Uncertificated XB
Interest
Class C Certificates Class LC Uncertificated XC
Interest
Class D Certificates Class LD Uncertificated XD
Interest
Class E Certificates Class LE-1 Uncertificated XE-1
Interest
Class LE-2 Uncertificated XE-2
Interest
Class F Certificates Class LF-1 Uncertificated XF-1
Interest
Class LF-2 Uncertificated XF-2
Interest
Class G Certificates Class LG-1 Uncertificated XG-1
Interest
Class LG-2 Uncertificated XG-2
Interest
Class H Certificates Class LH-1 Uncertificated XH-1
Interest
Class LH-2 Uncertificated XH-2
Interest
Class J Certificates Class LJ Uncertificated XJ
Interest
Class K Certificates Class LK-1 Uncertificated XK-1
Interest
Class LK-2 Uncertificated XK-2
Interest
Class L Certificates Class LL Uncertificated XL
Interest
Class M Certificates Class LM Uncertificated XM
Interest
Class N Certificates Class LN Uncertificated XN
Interest
Class P Certificates Class LP Uncertificated XP
Interest
Class NR Certificates Class LNR Uncertificated XNR
Interest
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Paying Agent or any REMIC administrator
appointed pursuant to Section 10.04.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury Regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "Midland
Loan Services, Inc., or the applicable successor Special Servicer, as Special
Servicer, for the benefit of Xxxxx Fargo Bank, N.A., as trustee, in trust for
registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC8, REO Account."
Any such account or accounts shall be an Eligible Account.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of the Trust
Fund and provides for Assumed Scheduled Payments on each Due Date therefor, and
otherwise has the same terms and conditions as its predecessor Mortgage Loan,
including, without limitation, with respect to the calculation of the Mortgage
Rate in effect from time to time (such terms and conditions to be applied
without regard to the default on such predecessor Mortgage Loan). Each REO Loan
shall be deemed to have an initial outstanding principal balance and Stated
Principal Balance equal to the outstanding principal balance and Stated
Principal Balance, respectively, of its predecessor Mortgage Loan as of the date
of the related REO Acquisition. All amounts due and owing in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, accrued and unpaid interest, shall continue to be
due and owing in respect of a REO Loan. All amounts payable or reimbursable to
the Servicer, the Special Servicer or the Trustee, as applicable, in respect of
the predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, any unpaid Special Servicing Fees and Servicing
Fees, additional Trust Fund expenses and any unreimbursed Advances, together
with any interest accrued and payable to the Servicer or the Trustee, as
applicable, in respect of such Advances in accordance with Section 3.03(d) or
Section 4.03(d), shall continue to be payable or reimbursable to the Servicer or
the Trustee in respect of an REO Loan. In addition, Workout-Delayed
Reimbursement Amounts and Nonrecoverable Advances with respect to such REO Loan,
in each case, that were paid from collections on the Mortgage Loans and resulted
in principal distributed to the Certificateholders being reduced as a result of
the first proviso in the definition of "Principal Distribution Amount," "Loan
Group 1 Principal Distribution Amount" and/or "Loan Group 2 Principal
Distribution Amount" shall be deemed outstanding until recovered. Collections in
respect of each REO Loan (exclusive of the amounts to be applied to the payment
of, or to be reimbursed to the Trust Fund, the Servicer or the Special Servicer
for the payment of the costs of operating, managing, selling, leasing and
maintaining the related REO Property) shall be treated: first, as a recovery of
Workout-Delayed Reimbursement Amounts and Nonrecoverable Advances with respect
to such REO Loan, in each case, that were paid from collections on the Mortgage
Loans and resulted in principal distributed to the Certificateholders being
reduced as a result of the first proviso in the definition of "Principal
Distribution Amount," "Loan Group 1 Principal Distribution Amount" and/or "Loan
Group 2 Principal Distribution Amount;" second, as a recovery of accrued and
unpaid interest on such REO Loan at the related Mortgage Rate in effect from
time to time to, but not including, the Due Date in the Due Period of receipt
(exclusive of any portion that constitutes Excess Interest); third, as a
recovery of principal of such REO Loan to the extent of its entire unpaid
principal balance and fourth, in accordance with the Servicing Standards of the
Servicer, as a recovery of any other amounts due and owing in respect of such
REO Loan, including, without limitation, (i) Yield Maintenance Charges and
Penalty Charges and (ii) Excess Interest and other amounts, in that order;
provided, that if the Forum Shops Mortgage Loan and Forum Shops Companion Notes
comprising the Forum Shops Whole Loan become REO Loans, the treatment of the
foregoing amounts with respect to the Forum Shops Whole Loan shall be subject to
the terms of the Forum Shops Intercreditor Agreement and the Forum Shops Pooling
Agreement.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for
the benefit of the Certificateholders (subject to the related Intercreditor
Agreement with respect to a Mortgaged Property securing a Loan Pair) and the
Trustee (as holder of the Uncertificated Lower-Tier Interests) (and also
including, if applicable, the Trust Fund's beneficial interest in the Forum
Shops Mortgaged Property acquired by the Forum Shops Special Servicer on behalf
of, and in the name of, the Forum Shops Trustee or a nominee thereof for the
benefit of the certificateholders under the Forum Shops Trust) through
foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan. References herein to the Special Servicer acquiring,
maintaining, managing, inspecting, selling, reporting or Appraisal Reductions
and Final Recovery Determinations with respect to, an "REO Property", shall not
include the Trust Fund's beneficial interest in the Forum Shops Mortgaged
Property.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Request for Release": A release signed by a Servicing Officer of
the Servicer or the Special Servicer, as applicable, in the form of Exhibit E
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to each of the initial
Trustee, Paying Agent, any Vice President, Assistant Vice President, Assistant
Secretary, corporate trust officer or assistant corporate trust officer in the
corporate trust department of the Trustee or the Institutional Trust
Services-Global Debt of the Paying Agent, and with respect to any successor
Trustee or Paying Agent, any officer or assistant officer in the corporate trust
department of the Trustee or Paying Agent, any other officer of the Trustee or
Paying Agent customarily performing functions similar to those performed by any
of the above designated officers to whom a particular matter is referred by the
Trustee or Paying Agent because of such officer's knowledge of and familiarity
with the particular subject.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Initial Purchaser and any other distributor
(as such term is defined in Regulation S) of the Certificates and (b) the
Closing Date.
"Revised Rate": With respect to those Mortgage Loans on the Mortgage
Loan Schedule indicated as having a revised rate, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors in interest. If S&P nor any
successor remains in existence, "S&P" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Paying Agent, the Servicer and the Special Servicer, and specific
ratings of S&P herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of the principal
portions of (a) all Monthly Payments (excluding Balloon Payments and Excess
Interest) due in respect of such Mortgage Loans during or, if and to the extent
not previously received or advanced pursuant to Section 4.03 in respect of a
preceding Distribution Date, prior to, the related Due Period, and all Assumed
Scheduled Payments for the related Due Period, in each case to the extent either
(i) paid by the Mortgagor as of the Business Day preceding the related P&I
Advance Date (or, with respect to each Mortgage Loan with a Due Date occurring
or a grace period ending after the related Determination Date, the related Due
Date or last day of such grace period, as applicable, to the extent received by
the Servicer as of the Business Day preceding the related P&I Advance Date) (and
not previously distributed to Certificateholders) or (ii) advanced by the
Servicer or the Trustee, as applicable, pursuant to Section 4.03 in respect of
such Distribution Date, and (b) all Balloon Payments to the extent received
during the related Due Period (including any applicable grace periods) (or, with
respect to each Mortgage Loan with a Due Date occurring or a grace period ending
after the related Determination Date, the related Due Date or last day of such
grace period, as applicable, to the extent received by the Servicer as of the
related P&I Advance Date, and to the extent not included in clause (a) above).
"Securities Act": The Securities Act of 1933, as it may be amended
from time to time.
"Security Agreement": With respect to any Mortgage Loan (or
Companion Loan), any security agreement or equivalent instrument, whether
contained in the related Mortgage or executed separately, creating in favor of
the holder of such Mortgage a security interest in the personal property
constituting security for repayment of such Mortgage Loan (or Companion Loan).
"Servicer": GMAC Commercial Mortgage Corporation, a California
corporation, and its successors in interest and assigns, or any successor
Servicer appointed as herein provided.
"Servicer Servicing Standard": As defined in Section 3.01(a)(i).
"Servicer Watch List": As of each Determination Date a report,
including and identifying each Mortgage Loan that is not a Specially Serviced
Mortgage Loan, satisfying the "CMSA Servicer Watch List" criteria approved from
time to time by the CMSA and containing the information called for therein.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the Servicer, Special Servicer or the
Trustee, as applicable, in connection with the servicing and administering of
(a) a Mortgage Loan (other than the Forum Shops Mortgage Loan) (and in the case
of the AB Mortgage Loan, including the related Companion Loan) in respect of
which a default, delinquency or other unanticipated event has occurred or as to
which a default is reasonably foreseeable or (b) an REO Property, including, (in
the case of each of such clause (a) and clause (b) but not limited to (x) the
cost of (i) compliance with the Servicer's obligations set forth in Section
3.03(c), (ii) the preservation, restoration and protection of a Mortgaged
Property, (iii) obtaining any Insurance and Condemnation Proceeds or any
Liquidation Proceeds of the nature described in clauses (i)-(iv) of the
definition of "Liquidation Proceeds," (iv) any enforcement or judicial
proceedings with respect to a Mortgaged Property, including foreclosures and (v)
the operation, leasing, management, maintenance and liquidation of any REO
Property and (y) any other item specifically payable as a Servicing Advance
pursuant to this Agreement. Notwithstanding anything to the contrary, "Servicing
Advances" shall not include allocable overhead of the Servicer or the Special
Servicer, such as costs for office space, office equipment, supplies and related
expenses, employee salaries and related expenses and similar internal costs and
expenses or costs and expenses incurred by any such party in connection with its
purchase of a Mortgage Loan or REO Property.
"Servicing Fee": With respect to each Mortgage Loan, Companion Loan
and REO Loan, the fee payable to the Servicer pursuant to the first paragraph of
Section 3.11(a).
"Servicing Fee Amount": With respect to each Sub-Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan serviced by such Sub-Servicer, (a) the Stated Principal
Balance of such Mortgage Loan as of the end of the immediately preceding Due
Period and (b) the servicing fee rate specified in the related Sub-Servicing
Agreement for such Mortgage Loan. With respect to the Servicer and any date of
determination, the aggregate of the products obtained by multiplying, for each
Mortgage Loan (a) the Stated Principal Balance of such Mortgage Loan as of the
end of the immediately preceding Due Period and (b) the difference between the
Servicing Fee Rate for such Mortgage Loan over the servicing fee rate (if any)
applicable to such Mortgage Loan as specified in any Sub-Servicing Agreement
related to such Mortgage Loan.
"Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan (and with respect to the Forum Shops Mortgage Loan, solely for purposes of
calculating the Administrative Cost Rate under this Agreement and not for
calculating the Servicing Fee), a rate equal to the per annum rate set forth on
the Mortgage Loan Schedule under the heading "Servicing Fee Rate." With respect
to each Companion Loan, the rate payable to the Servicer with respect to the
related Mortgage Loan in accordance with the related Intercreditor Agreement.
Other than for purposes of calculating the Administrative Cost Rate under this
Agreement, the "Servicing Fee Rate" with respect to the Forum Shops Mortgage
Loan is 0.02% per annum.
"Servicing File": Shall mean a photocopy of all items required to be
included in the Mortgage File, together with each of the following, to the
extent such items were actually delivered to the related Mortgage Loan Seller
with respect to a Mortgage Loan and (to the extent that the identified documents
existed on or before the Closing Date and the applicable reference to Servicing
File relates to any period after the Closing Date) delivered by the related
Mortgage Loan Seller to the Servicer: (i) a copy of any appraisals, engineering
reports, environmental reports or property condition reports; (ii) other than
with respect to a hotel property, copies of a rent roll and, for any office,
retail, industrial or warehouse property, a copy of all leases delivered to the
Mortgage Loan Seller; (iii) copies of related financial statements or operating
statements; (iv) all legal opinions, Mortgagor's Certificates and certificates
of hazard insurance and/or hazard insurance policies delivered in connection
with the closing of the Mortgage Loan; (v) copies of any lockbox agreement or
other cash management agreement, (vi) copies of any franchise agreements and
comfort letters related thereto and (vii) copies of any letters of credit to the
extent the original thereof is not held by the Servicer.
"Servicing Officer": Any officer and/or employee of the Servicer or
the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, (and in the case of the AB Mortgage Loan, the
Companion Loan) whose name and specimen signature appear on a list of servicing
officers furnished by the Servicer and the Special Servicer to the Paying Agent,
the Trustee and the Depositor on the Closing Date as such list may be amended
from time to time thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standards": With respect to the Servicer, the Servicer
Servicing Standard and with respect to the Special Servicer, the Special
Servicer Servicing Standard.
"Servicing Transfer Event": With respect to any Mortgage Loan (other
than the Forum Shops Mortgage Loan), the occurrence of any of the following
events:
(i) with respect to a Mortgage Loan that is not a Balloon
Mortgage Loan, (a) a payment default shall have occurred at its
original maturity date, or (b) if the original maturity date of such
Mortgage Loan has been extended, a payment default shall have
occurred at such extended maturity date; or
(ii) with respect to each Balloon Mortgage Loan, a Balloon
Payment is delinquent and the related Mortgagor has not provided the
Servicer on the related maturity date with a bona fide written
commitment for refinancing, reasonably satisfactory in form and
substance to the Servicer, which provides that such refinancing will
occur within 90 days, provided that if such refinancing does not
occur, the related Mortgage Loan will become a Specially Serviced
Mortgage Loan at the end of a 90-day period (or for such shorter
period beyond the date on which that balloon payment was due within
which the refinancing is scheduled to occur); or
(iii) any Monthly Payment (other than a Balloon Payment) or
any cure payment (in lieu of such Monthly Payment) made by a
Mezzanine Lender or Forum Shops B Noteholder, as the case may be, is
more than 60 days delinquent; provided, however, with respect to the
Harbor Plaza Mortgage Loan, if the Harbor Plaza Mezzanine Lender
makes 5 consecutive cure payments under the Harbor Plaza
Intercreditor Agreement, a Servicing Transfer Event shall occur upon
the making of the fifth such cure payment; provided, further, with
respect to the Xxxxx Town Center Loan and after the enactment of the
Puerto Rico Tax Legislation, if with respect to any Due Date on such
Mortgage Loan, the Mortgagor fails to make any Xxxxx Xxxxx-Up
Payment that is required to be made under the loan agreement for
such Mortgage Loan, but CIBC Inc. elects to remit to the Trust such
Xxxxx Xxxxx-Up Payment pursuant to Section 3.33(a) within 60 days
after such Xxxxx Xxxxx-Up Payment is due, no Servicing Transfer
Event shall occur solely as a result of the Mortgagor failing to
make such Xxxxx Xxxxx-Up Payment on such Due Date, so long as CIBC
Inc. remits such Xxxxx Xxxxx-Up Payment to the Trust within 60 days
after such Xxxxx Xxxxx-Up Payment is due; or
(iv) determination by the Servicer or receipt by the Servicer
of a written determination of the Special Servicer that a payment
default is imminent and is not likely to be cured by the related
Mortgagor within 60 days; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law, or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, is entered against the related
Mortgagor; provided, that if such decree or order is discharged or
stayed within 60 days of being entered, or if, as to a bankruptcy,
the automatic stay is lifted within 60 days of a filing for relief
or the case is dismissed, upon such discharge, stay, lifting or
dismissal such Mortgage Loan shall no longer be a Specially Serviced
Mortgage Loan (and no Special Servicing Fees, Workout Fees or
Liquidation Fees will be payable with respect thereto and any such
fees actually paid shall be reimbursed by the Special Servicer); or
(vi) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vii) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(viii) a default of which the Servicer has notice (other than
a failure by such Mortgagor to pay principal or interest) and which
in the opinion of the Servicer materially and adversely affects the
interests of the Certificateholders or the holders of the related
Companion Loan, if applicable, has occurred and remained unremedied
for the applicable grace period specified in the related Mortgage
Loan documents, other than the failure to maintain terrorism
insurance if it is not required to be maintained pursuant to Section
3.07 as determined by the Special Servicer (or if no grace period is
specified for those defaults which are capable of cure, 60 days); or
(ix) the Servicer has received notice of the foreclosure or
proposed foreclosure of any lien on the related Mortgaged Property;
or
(x) if any Companion Loan becomes a Specially Serviced
Mortgage Loan, the corresponding AB Mortgage Loan shall also become
a Specially Serviced Mortgage Loan. If any AB Mortgage Loan becomes
a Specially Serviced Mortgage Loan, the corresponding Companion Loan
shall become a Specially Serviced Mortgage Loan. If any Mortgage
Loan in a Crossed Group becomes a Specially Serviced Mortgage Loan,
each other Mortgage Loan in such Crossed Group shall also become a
Specially Serviced Mortgage Loan.
With respect to the Forum Shops Mortgage Loan, the occurrence of a "Servicing
Transfer Event" as defined in the Forum Shops Pooling Agreement.
"Similar Law": As defined in Section 5.02(c).
"Special Servicer": Midland Loan Services, Inc., a Delaware
corporation, and its successors and assigns, or any successor Special Servicer
appointed as herein provided.
"Special Servicer Servicing Standard": As defined in Section
3.01(a)(ii).
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer pursuant to
the first paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan (other than the Forum Shops Mortgage
Loan), 0.25% per annum computed on the basis of the Stated Principal Balance of
the related Mortgage Loan in the same manner as interest is calculated on the
Specially Serviced Mortgage Loans.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan, plus (y) any Mortgage Deferred Interest added to
the principal balance of such Mortgage Loan on or before the end of the
immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date, to the extent received from
the Mortgagor or advanced by the Servicer;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date;
(iii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan) and Liquidation Proceeds received with respect to
such Mortgage Loan after the Cut-off Date; and
(iv) any reduction in the outstanding principal balance of
such Mortgage Loan resulting from a Deficient Valuation that
occurred prior to the end of the Due Period for the most recent
Distribution Date.
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to the predecessor Mortgage Loan on or after the date of the related
REO Acquisition; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan), Liquidation Proceeds and REO Revenues received with
respect to such REO Loan.
A Mortgage Loan or a REO Loan shall be deemed to be part of the
Trust Fund and to have an outstanding Stated Principal Balance until the
Distribution Date on which the payments or other proceeds, if any, received in
connection with a Liquidation Event in respect thereof are to be (or, if no such
payments or other proceeds are received in connection with such Liquidation
Event, would have been) distributed to Certificateholders.
With respect to any Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P
or Class NR Certificate.
"Sub-Servicer": Any Person with which the Servicer has entered into
a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Servicer
or the Special Servicer, as the case may be, and any Sub-Servicer relating to
servicing and administration of Mortgage Loans as provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the outstanding principal balance of the related Qualified
Substitute Mortgage Loan after application of all scheduled payments of
principal and interest due during or prior to the month of substitution, whether
or not received. In the event that one or more Qualified Substitute Mortgage
Loans are substituted (at the same time by the same Mortgage Loan Seller) for
one or more deleted Mortgage Loans, the Substitution Shortfall Amount shall be
determined as provided in the preceding sentence on the basis of the aggregate
Purchase Prices of the Mortgage Loan or Mortgage Loans being replaced and the
aggregate outstanding principal balance of the related Qualified Substitute
Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Returns": The federal income tax returns 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 of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions, and the
applicable federal income tax returns to be filed on behalf of the Grantor
Trust, together with any and all other information, reports or returns that may
be required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal tax law or Applicable State and Local Tax Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(c).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(c).
"Trust": The trust created hereby and to be administered hereunder.
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-Off Date (or with respect to a Qualified
Substitute Mortgage Loan, the date of substitution); (iii) any REO Property (to
the extent of the Trust Fund's interest therein) or beneficial interest in the
Mortgaged Property securing the Forum Shops Whole Loan acquired under the Forum
Shops Pooling Agreement; (iv) all revenues received in respect of any REO
Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to this Agreement and any proceeds thereof (to the extent of the Trust Fund's
interest therein); (vi) any Assignments of Leases and any security agreements
(to the extent of the Trust Fund's interest therein); (vii) any letters of
credit, indemnities, guaranties or lease enhancement policies given as
additional security for any Mortgage Loans (to the extent of the Trust Fund's
interest therein); (viii) all assets deposited in the Servicing Accounts (to the
extent of the Trust Fund's interest therein), amounts on deposit in the
Certificate Account, the Distribution Account, the Gain-on-Sale Reserve Account,
the Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Excess Interest Distribution Account, the Interest Reserve Account and any REO
Account (to the extent of the Trust Fund's interest in such REO Account),
including any reinvestment income, as applicable; (ix) any Environmental
Indemnity Agreements (to the extent of the Trust Fund's interest therein); (x)
the rights and remedies of the Depositor under each Mortgage Loan Purchase
Agreement; (xi) the Uncertificated Lower-Tier Interests; and (xii) the proceeds
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Mortgagor).
"Trustee": Xxxxx Fargo Bank, N.A., a national banking association,
in its capacity as trustee and its successors in interest, or any successor
trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(b).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement. The Trustee Fee includes the
Paying Agent Fee.
"Trustee Fee Rate": A rate equal to 0.0015% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan (and in
the same manner as interest is calculated on the related Mortgage Loan) as of
the preceding Distribution Date. The Trustee Fee Rate includes the Paying Agent
Fee Rate.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1-1,
Class LA-1-2, Class LA-1-3, Class LA-2-1, Class LA-2-2, Class LA-2-3, Class
LA-2-4, Class XX-0-0, Xxxxx XX-0, Class LA-4-1, Class LA-4-2, Class LA-1A-1,
Class LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class
LA-1A-7, Class LA-1A-8, Class LB, Class LC, Class LD, Class LE-1, Class LE-2,
Class LF-1, Class LF-2, Class LG-1, Class LG-2, Class LH-1, Class LH-2, Class
LJ, Class LK-1, Class LK-2, Class LL, Class LM, Class LN, Class LP, and Class
LNR Uncertificated Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., CIBC World Markets
Corp., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Wachovia Capital
Markets, LLC.
"Underwritten Debt Service Coverage Ratio": With respect to any
Mortgage Loan, the ratio of (i) Underwritten Net Cash Flow produced by the
related Mortgaged Property to (ii) the aggregate amount of the Monthly Payments
due for the 12-month period immediately following the Cut-off Date, except with
respect to those Mortgage Loans identified on Schedule 2 where Monthly Payments
pay interest only for a specified period of time set forth in the related
Mortgage Loan documents and then pay principal and interest, but for purposes of
this definition only, shall be assumed to include interest and principal (based
upon the amortization schedule length indicated on Schedule 2).
"Underwritten Net Cash Flow": With respect to any Mortgaged
Property, the estimated annual revenue derived from the use and operation of
such Mortgaged Property, less estimated annual expenses, including operating
expenses (such as utilities, administrative expenses, repairs and maintenance,
tenant improvement costs, leasing commissions, management fees and advertising),
fixed expenses (such as insurance, real estate taxes and, if applicable, ground
lease payments) and replacement reserves and an allowance for vacancies and
credit losses. In calculating Underwritten Net Cash Flow, certain non-operating
items such as depreciation, amortization, partnership distributions, financing
fees and capital expenditures other than applicable reserves, are not included
as expenses.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unliquidated Advance": 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 or Nonrecoverable Advance pursuant to
subsections (iii) and (iv) of Section 3.05(a) but that has not been recovered
from the Mortgagor or otherwise from collections on or the proceeds of the
Mortgage Loan or REO Property in respect of which the Advance was made.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of (a) all Principal
Prepayments received on such Mortgage Loans as of the second Business Day prior
to the related Distribution Date and (b) the principal portions of all
Liquidation Proceeds, Insurance and Condemnation Proceeds (net of Special
Servicing Fees, Liquidation Fees, accrued interest on Advances and other
additional Trust Fund expenses incurred in connection with the related Mortgage
Loan) and, if applicable, REO Revenues received with respect to such Mortgage
Loans and any REO Loans as of the second Business Day prior to the related
Distribution Date, but in each case only to the extent that such principal
portion represents a recovery of principal for which no advance was previously
made pursuant to Section 4.03 in respect of a preceding Distribution Date.
"Updated Collection Report": A report available each month on the
P&I Advance Date, setting forth each Mortgage Loan or REO Loan with respect to
which the Servicer received a Monthly Payment after the Determination Date and
before the P&I Advance Date for the related month.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Paying Agent pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "JPMorgan Chase Bank, as Paying
Agent, in trust for the registered Holders of X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8, Upper-Tier Distribution Account." Any such account or accounts shall
be an Eligible Account (or a subaccount of the Distribution Account).
"Upper-Tier REMIC": One of the 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.
"U.S. Dollars": Lawful money of the United States of America.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States, any State thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates (allocated pro rata between the Class X-1 and Class X-2
Certificates based upon their Class Notional Amounts), and (ii) in the case of
any other Class of Regular Certificates a percentage equal to the product of 96%
and a fraction, the numerator of which is equal to the aggregate Certificate
Balance of such Class, in each case, determined as of the Distribution Date
immediately preceding such time, and the denominator of which is equal to the
aggregate Certificate Balance of the Regular Certificates (other than the Class
X-1 and the Class X-2 Certificates), each determined as of the Distribution Date
immediately preceding such time. None of the Class R Certificates or the Class
LR Certificates will be entitled to any Voting Rights. Voting Rights allocated
to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests evidenced by their
respective Certificates. Appraisal Reductions shall not result in a change to a
Class' Voting Rights.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans as of the first day of the related Due Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Due Period (after giving effect to any payments received during any
applicable grace period).
"Withheld Amounts": As defined in Section 3.25(a).
"Workout Delayed Reimbursement Amounts": 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 Mortgage 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 Mortgage Loan and (ii) the amount of such
Advance becomes capitalized, thereby increasing the principal amount due under
the related modified loan documents. That any amount constitutes all or a
portion of any Workout Delayed Reimbursement Amount shall not in any manner
limit the right of any Person hereunder to determine in the future that such
amount instead constitutes a Nonrecoverable Advance.
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan (other than with respect to the Forum Shops
Mortgage Loan).
"Workout Fee Rate": A fee of 1.00% of each collection (other than
Excess Interest, Penalty Charges and Default Interest) of interest and principal
(other than any amount for which a Liquidation Fee would be paid), including (i)
Monthly Payments, (ii) Balloon Payments and (iii) payments (other than those
included in clause (i) or (ii) of this definition) at maturity, received on each
Corrected Mortgage Loan for so long as it remains a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations.
Unless otherwise specified herein, for purposes of determining
amounts with respect to the Certificates and the rights and obligations of the
parties hereto, the following provisions shall apply:
(i) All calculations of interest (other than as provided in
the Mortgage Loan documents) provided for herein shall be made on
the basis of a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the
date such payment is actually received by the Servicer, the Paying
Agent or the Special Servicer; provided, however, that for purposes
of calculating distributions on the Certificates, Principal
Prepayments with respect to any Mortgage Loan are deemed to be
received on the date they are applied in accordance with the
Servicing Standards consistent with the terms of the related
Mortgage Note and Mortgage to reduce the outstanding principal
balance of such Mortgage Loan on which interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates on such
Distribution Date after giving effect to (a) any distributions made
on such Distribution Date pursuant to Section 4.01(a), (b) any
Collateral Support Deficit allocated to such Class on such
Distribution Date pursuant to Section 4.04 and (c) the addition of
any Certificate Deferred Interest allocated to such Class and added
to such Certificate Balance pursuant to Section 4.05(b) and (d) any
recoveries on the related Mortgage Loan of Nonrecoverable Advances
(plus interest thereon) that were previously reimbursed from
principal collections on the Mortgage Loans that resulted in a
reduction of the Principal Distribution Amount, Loan Group 1
Principal Distribution Amount and/or Loan Group 2 Principal
Distribution Amount, which recoveries are allocated to such Class
and added to the Certificate Balance pursuant to Section 4.04(a).
(iv) For purposes of calculations required herein, Excess
Interest shall not be added to the outstanding principal balance of
the Mortgage Loans notwithstanding that the related Loan Documents
may provide otherwise.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish a trust, appoint the Trustee as trustee of the
trust, assign, sell, transfer and convey to the Trustee, in trust, without
recourse, for the benefit of the Certificateholders and the Trustee (as holder
of the Uncertificated Lower-Tier Interests) all the right, title and interest of
the Depositor, including any security interest therein for the benefit of the
Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage
Loan Schedule, (ii) Sections 1, 2, 3, 4, 5, 6(a) (excluding clause (viii) of
Section 6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 7, 11, 12, 14, 15, 16, 18, and 20
of each of the Mortgage Loan Purchase Agreements, (iii) all other assets
included or to be included in the Trust Fund and (iv) any rights of the
Depositor, as assignee of JPMorgan Chase Bank or CIBC Inc. under the applicable
Intercreditor Agreements. Such assignment includes all interest and principal
received or receivable on or with respect to the Mortgage Loans (other than
payments of principal and interest due and payable on the Mortgage Loans on or
before the Cut-off Date and prepayments of principal collected on or before the
Cut-off Date). Such assignment of the Forum Shops Mortgage Loan, and, the right
to service such Mortgage Loan, are further subject to the terms and conditions
of the Forum Shops Pooling Agreement and the Forum Shops Intercreditor
Agreement. The transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and, notwithstanding Section 11.07, is
intended by the parties to constitute a sale. In connection with the assignment
to the Trustee of Sections 1, 2, 3, 4, 5, 6(a), 6(c), 6(d), 6(e), 6(f), 6(g), 7,
11, 12, 14, 15, 16, 18, and 20 of each of the Mortgage Loan Purchase Agreements,
it is intended that the Trustee get the benefit of Sections 11, 12 and 15
thereof in connection with any exercise of rights under the assigned Sections,
and the Depositor shall use its best efforts to make available to the Trustee
the benefits of Sections 11, 12 and 15 in connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, with copies to the Servicer. If the applicable
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original Mortgage Note, the delivery requirements of the
applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be
deemed to have been satisfied, provided such Mortgage Loan Seller shall deliver
a copy or duplicate original of such Mortgage Note, together with an affidavit
certifying that the original thereof has been lost or destroyed and indemnifying
the Trustee. If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (ii), (iv), (vi), (viii), (xi), (xii) and (xv) of the
definition of "Mortgage File," with evidence of filing or recording thereon (if
intended to be recorded or filed), solely because of a delay caused by the
public filing or recording office where such document or instrument has been
delivered for filing or recordation, the delivery requirements of the applicable
Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to
have been satisfied on a provisional basis as of the Closing Date as to such
non-delivered document or instrument, and such non-delivered document or
instrument shall be deemed to have been included in the Mortgage File, provided
that a photocopy of such non-delivered document or instrument (certified by the
applicable public filing or recording office, the applicable title insurance
company or the applicable Mortgage Loan Seller to be a true and complete copy of
the original thereof submitted for filing or recording) is delivered to the
Trustee or a Custodian appointed thereby on or before the Closing Date, and
either the original of such non-delivered document or instrument, or a photocopy
thereof (certified by the appropriate county recorder's office, in the case of
the documents and/or instruments referred to in clause (ii) of the definition of
"Mortgage File," to be a true and complete copy of the original thereof
submitted for recording), with evidence of filing or recording thereon, is
delivered to the Trustee or such Custodian within 180 days after the Closing
Date (or within such longer period, not to exceed 18 months, after the Closing
Date as the Trustee may consent to, which consent shall not be unreasonably
withheld so long as the applicable Mortgage Loan Seller is, as certified in
writing to the Trustee no less often than every 90 days, attempting in good
faith to obtain from the appropriate public filing office or county recorder's
office such original or photocopy). If the applicable Mortgage Loan Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the
documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi) and
(xx) of the definition of "Mortgage File," with evidence of filing or recording
thereon, for any other reason, including, without limitation, that such
non-delivered document or instrument has been lost or destroyed, the delivery
requirements of the applicable Mortgage Loan Purchase Agreement and this Section
2.01(b) shall be deemed to have been satisfied as to such non-delivered document
or instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (with evidence of filing or recording
thereon and certified in the case of the documents and/or instruments referred
to in clause (ii) of the definition of "Mortgage File" by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording) is delivered to the Trustee or a Custodian appointed
thereby on or before the Closing Date. Neither the Trustee nor any Custodian
shall in any way be liable for any failure by any Mortgage Loan Seller or the
Depositor to comply with the delivery requirements of the related Mortgage Loan
Purchase Agreement and this Section 2.01(b). If, on the Closing Date as to any
Mortgage Loan, the applicable Mortgage Loan Seller cannot deliver in complete
and recordable form (or form suitable for filing or recording, if applicable)
any one of the assignments in favor of the Trustee referred to in clauses (iii),
(v) or (xi) of the definition of "Mortgage File" solely because of the
unavailability of filing or recording information as to any existing document or
instrument and/or because such assignments are assignments in blank and have not
been completed in favor of the Trustee as specified in the related clause(s) of
the definition of "Mortgage File," such Mortgage Loan Seller may provisionally
satisfy the delivery requirements of the related Mortgage Loan Purchase
Agreement and this Section 2.01(b) by delivering with respect to such Mortgage
Loan on the Closing Date an omnibus assignment of such Mortgage Loan
substantially in the form of Exhibit H; provided that all required original
assignments with respect to such Mortgage Loan, in fully complete and recordable
form (or form suitable for filing, if applicable), are delivered to the Trustee
or its Custodian within 180 days of the Closing Date (or within such longer
period, not to exceed 18 months, as the Trustee in its discretion may consent
to, which consent shall not be unreasonably withheld so long as the applicable
Mortgage Loan Seller is, as certified in writing to the Trustee no less often
than every 90 days, attempting in good faith to obtain from the appropriate
public filing office or county recorder's office the applicable filing or
recording information as to the related document or instrument). Notwithstanding
anything herein to the contrary, with respect to letters of credit, the
applicable Mortgage Loan Seller shall deliver to the Servicer and the Servicer
shall hold the original (or copy, if such original has been submitted by the
applicable Mortgage Loan Seller to the issuing bank to effect an assignment or
amendment of such letter of credit that may be required in order for the
Servicer to draw on such letter of credit on behalf of the Trustee in accordance
with the applicable terms thereof and/or of the related Mortgage Loan documents)
and the applicable Mortgage Loan Seller shall be deemed to have satisfied the
delivery requirements of the related Mortgage Loan Purchase Agreement and this
Section 2.01(b) by delivering with respect to any letter(s) of credit a copy
thereof to the Trustee together with an officer's certificate of the Mortgage
Loan Seller certifying that such document has been delivered to the Servicer or
an officer's certificate from the Servicer certifying that it holds the
letter(s) of credit pursuant to this Section 2.01(b), one of which shall be
delivered to the Trustee on the Closing Date. If a letter of credit referred to
in the previous sentence is not in a form that would allow the Servicer to draw
on such letter of credit in accordance with the applicable terms thereof and/or
of the related Mortgage Loan documents, the applicable Mortgage Loan Seller
shall deliver the appropriate assignment or amendment documents (or copies of
such assignment or amendment documents if the related Mortgage Loan Seller has
submitted the originals to the related issuer of such letter of credit for
processing) to the Servicer within 30 days of the Closing Date and pay any costs
of assignment or amendment of such letter(s) of credit required in order for the
Servicer to draw on such letter(s) of credit on behalf of the Trustee in
accordance with the applicable terms thereof and/or of the related Mortgage Loan
documents.
(c) Pursuant to each Mortgage Loan Purchase Agreement, each Mortgage
Loan Seller is required at its sole cost and expense, to itself, or to engage a
third party to, put each assignment of Mortgage, each assignment of Assignment
of Leases and each assignment of each UCC Financing Statement ("Assignments"
and, individually, "Assignment") relating to the Mortgage Loans conveyed by it
under the applicable Mortgage Loan Purchase Agreement in proper form for filing
or recording, as applicable, in accordance with Revised Article 9 of the UCC or
other applicable law and to submit such Assignments for filing or recording, as
the case may be, in the applicable public filing or recording office, and on the
Closing Date, such Mortgage Loan Seller will be required to deliver the omnibus
assignment of such Mortgage Loans to the Trustee or its Custodian as provided in
Section 2.01(b). Except under the circumstances provided for in the last
sentence of this subsection (c), each Mortgage Loan Seller will itself, or a
third party at such Mortgage Loan Seller's expense will, promptly (and in any
event within 120 days after the later of the Closing Date and the Trustee's
actual receipt of the related documents) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, as appropriate, each assignment to the
Trustee referred to in clauses (iii) and (v) of the definition of "Mortgage
File" and each UCC assignment to the Trustee referred to in clause (xi) of the
definition of "Mortgage File." Each such Assignment submitted for recording
shall reflect that it should be returned by the public recording office to the
Trustee or its designee following recording (or it shall be delivered to the
Mortgage Loan Seller or its designee and such party shall deliver the original
to the Trustee or its designee), and each such UCC assignment submitted for
recording or filing shall reflect that the file copy thereof should be returned
to the Trustee or its designee following recording or filing (or it shall be
delivered to the Mortgage Loan Seller or its designee and such party shall
deliver the original to the Trustee or its designee). If any such document or
instrument is determined to be incomplete or not to meet the recording or filing
requirements of the jurisdiction in which it is to be recorded or filed, or is
lost by the public office or returned unrecorded or unfiled, as the case may be,
because of a defect therein, on or about 180 days after the Closing Date, the
related Mortgage Loan Seller or its designee shall prepare, at such Mortgage
Loan Seller's expense, a substitute therefor or cure such defect, as the case
may be, and thereafter the Trustee shall upon receipt thereof cause the same to
be duly recorded or filed, as appropriate. If, by the first anniversary of the
Closing Date, the Trustee has not received confirmation of the recording or
filing as the case may be, of any such Assignment, it shall so advise the
related Mortgage Loan Seller who may then pursue such confirmation itself or
request that the Trustee pursue such confirmation at the related Mortgage Loan
Seller's expense, and upon such a request and provision for payment of such
expenses satisfactory to the Trustee, the Trustee, at the expense of the
applicable Mortgage Loan Seller, shall cause a search of the land records of
each applicable jurisdiction or of the records of the offices of the applicable
Secretary of State for confirmation that the Assignment appears in such records
and retain a copy of such confirmation in the related Mortgage File. In the
event that confirmation of the recording or filing of an Assignment cannot be
obtained, the Trustee or the related Mortgage Loan Seller, as applicable, shall
promptly inform the other and the Trustee shall provide such Mortgage Loan
Seller with a copy of the Assignment and request the preparation of a new
Assignment. A Mortgage Loan Seller shall pay the expenses for the preparation of
replacement Assignments for any Assignments which, having been properly
submitted for filing or recording to the appropriate governmental office by the
Trustee, fail to appear of record and must be resubmitted. Notwithstanding the
foregoing, there shall be no requirement to record any assignment to the Trustee
referred to in clause (iii) or (v) of the definition of "Mortgage File," or to
file any UCC-3 to the Trustee referred to in clause (xi) of the definition of
"Mortgage File," in those jurisdictions where, in the written opinion of local
counsel (which opinion shall be an expense of the related Mortgage Loan Seller)
acceptable to the Depositor and the Trustee, such recordation and/or filing is
not required to protect the Trustee's interest in the related Mortgage Loans
against sale, further assignment, satisfaction or discharge by the related
Mortgage Loan Seller, the Servicer, the Special Servicer, any Sub-Servicer or
the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
appraisals, financial statements, operating statements and any other information
provided by the respective Mortgagor from time to time, but excluding documents
prepared by the applicable Mortgage Loan Seller or any of its Affiliates solely
for internal communication, draft documents, privileged communications and
credit underwriting or due diligence analyses or data) that (i) are not required
to be a part of a Mortgage File in accordance with the definition thereof and
(ii) are reasonably necessary for the servicing of each such Mortgage Loan,
together with copies of all documents in each Mortgage File, shall be delivered
by the Depositor or the applicable Mortgage Loan Seller to the Servicer within 5
business Days after the Closing Date and shall be held by the Servicer on behalf
of the Trustee in trust for the benefit of the Certificateholders (and as holder
of the Uncertificated Lower-Tier Interests).
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Servicer, on or before
the Closing Date, a fully executed original counterpart of each of the Mortgage
Loan Purchase Agreements, as in full force and effect, without amendment or
modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Mortgage Loans
transferred by such Mortgage Loan Seller, whether such accounts are held in the
name of the applicable Mortgage Loan Seller or any other name, be transferred to
the Servicer (or a Sub-Servicer) for deposit into Servicing Accounts.
(g) The Paying Agent hereby acknowledges the receipt by it of the
Closing Date Deposit Amount. The Paying Agent shall hold such Closing Date
Deposit Amount in the Distribution Account and shall include the Closing Date
Deposit Amount in the Available Distribution Account for the initial
Distribution Date.
Section 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement (1)
acknowledges receipt by it or a Custodian on its behalf, subject to the
provisions of Section 2.01 and the further review provided for in this Section
2.02 and to any exceptions noted on the Trustee Exception Report attached to the
certificate in the form of Exhibit S hereto given by the Trustee, in good faith
and without notice of any adverse claim, of the applicable documents specified
in clause (i) of the definition of "Mortgage File" with respect to each Mortgage
Loan, of a fully executed original counterpart of each of the Mortgage Loan
Purchase Agreements, and of all other assets included in the Trust Fund and (2)
declares (a) that it or a Custodian on its behalf holds and will hold such
documents and the other documents delivered or caused to be delivered by the
Mortgage Loan Sellers that constitute the Mortgage Files, and (b) that it holds
and will hold such other assets included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders (and as
holder of the Uncertificated Lower-Tier Interests) and with respect to any
original document in the Mortgage File for a Loan Pair or the Forum Shops Whole
Loan, any present or future Companion Holder or the Forum Shops Companion
Noteholders, as applicable. If any Mortgage Loan Seller is unable to deliver or
cause the delivery of any original Mortgage Note, such Mortgage Loan Seller may
deliver a copy of such Mortgage Note, together with a signed lost note affidavit
and appropriate indemnity and shall thereby be deemed to have satisfied the
document delivery requirements of Sections 2.01 and 2.02.
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf, shall review the Mortgage Loan documents delivered or caused to
be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall provide a certificate in the form of Exhibit T
hereto to each of the Rating Agencies, the Depositor, the Servicer, the Special
Servicer, the Directing Certificateholder (provided it shall have identified
itself, and furnished to the Trustee a notice address for the delivery of such
certificate) and the Mortgage Loan Sellers that, as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full) and
except as specifically identified in any exception report annexed to such
writing (the "Trustee Exception Report"), (i) all documents specified in clauses
(i) through (v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi),
a copy of such letter of credit and an officer's certificate as contemplated by
the penultimate sentence of Section 2.01(b) hereof), if any, of the definition
of "Mortgage File," as applicable, and all documents specified in clauses (vi),
(viii), (xiii) through (xv) and (xvii) through (xx) to the extent the Mortgage
Loan Checklist indicates that such items are part of the Mortgage File are in
its possession, (ii) the foregoing documents delivered or caused to be delivered
by the Mortgage Loan Sellers have been reviewed by it or by a Custodian on its
behalf and appear regular on their face and appear to be executed and to relate
to such Mortgage Loan, and (iii) based on such examination and only as to the
foregoing documents, the information set forth in the Mortgage Loan Schedule
with respect to the items specified in clauses (iv), (vi) and (viii)(c) in the
definition of "Mortgage Loan Schedule" is correct. With respect to each Mortgage
Loan listed on the Trustee Exception Report, the Trustee shall specifically
identify such Mortgage Loan together with the nature of such exception (in the
form reasonably acceptable to the Trustee and the related Mortgage Loan Seller
and separating items required to be in the Mortgage File but never delivered
from items which were delivered by the related Mortgage Loan Seller but are out
for filing or recording and have not been returned by the filing office or the
recorder's office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall certify in
writing to each of the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder and the applicable Mortgage Loan Seller that, as to
each Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage
Loan as to which a Liquidation Event has occurred) or any Mortgage Loan
specifically identified in any exception report annexed to such writing (i) all
documents specified in clauses (i) through (v), (ix) through (xii) and (xvi)
(or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by the penultimate sentence of Section
2.01(b) hereof), if any, of the definition of "Mortgage File," as applicable,
and all documents specified in clauses (vi), (viii), (xiii) through (xv) and
(xvii) through (xx) to the extent the Mortgage Loan Checklist indicates that
such items are part of the Mortgage File are in its possession, (ii) the
foregoing documents delivered or caused to be delivered by the Mortgage Loan
Sellers have been reviewed by it or by a Custodian on its behalf and appear
regular on their face, appear to be executed and relate to such Mortgage Loan,
and (iii) based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage
Loan Schedule" is correct.
(d) Notwithstanding anything contained in this Section 2.02 and
Section 2.03(b) to the contrary, in the case of a deficiency in any of the
documents specified in clauses (ii) through (iv), (ix) and (xi) in the
definition of "Mortgage File," resulting solely from a delay in the return of
the related documents from the applicable filing or recording office, which
deficiency (i) is continuing for (a) in the case of any Mortgage Loan that is
not a Specially Serviced Mortgage Loan, more than eighteen (18) months following
the Closing Date or (b) in the case of any Specially Serviced Mortgage Loan,
thirty (30) days following a Servicing Transfer Event, and (ii) impairs or
prohibits in any material way the Servicer's or Special Servicer's ability to
act upon, or enforce, any of the Trust Fund's rights and remedies under the
related Mortgage Loan, or Specially Serviced Mortgage Loan, as applicable, at
the time the Servicer or Special Servicer attempts to act upon, or enforce, any
such right or remedy, the Directing Certificateholder, in its sole judgment, may
permit the related Mortgage Loan Seller, in lieu of repurchasing or substituting
for the related Mortgage Loan, to deposit with the Trustee an amount, to be held
in trust in a segregated Eligible Account, equal to 25% of the Stated Principal
Balance of the related Mortgage Loan (in the alternative, the related Mortgage
Loan Seller may deliver to the Trustee a letter of credit in such amount). Such
funds or letter of credit, as applicable, shall be held by the Trustee (i) until
the date on which the Servicer certifies to the Trustee that such document
deficiency has been cured or the related Mortgage Loan is no long part of the
Trust Fund, at which time the Trustee shall return such funds (or letter of
credit) to the related Mortgage Loan Seller, or (ii) if the related Mortgage
Loan is or becomes a Specially Serviced Mortgage Loan, until the date on which
the Special Servicer certifies to the Trustee that it has determined in the
exercise of its reasonable judgment that the document with respect to which such
document deficiency exists is required in connection with an imminent
enforcement of the mortgagee's rights or remedies under the related Mortgage
Loan, defending any claim asserted by any Mortgagor or third party with respect
to the related Mortgage Loan, establishing the validity or priority of any lien
on collateral securing the Mortgage Loan or for any immediate significant
servicing obligation, the related Mortgage Loan Seller shall be required to
repurchase or substitute for the related Mortgage Loan in accordance with the
terms and conditions of Section 2.03(b) or Section 6 of the related Mortgage
Loan Purchase Agreement; provided, however, that such Mortgage Loan Seller shall
not be required to repurchase the Mortgage Loan for a period of ninety (90) days
after receipt of a notice to repurchase (together with any applicable extension
period) if it is attempting to recover the document from the applicable
recording office and provides an officer's certificate setting forth what
actions such Mortgage Loan Seller is pursuing in connection with such recovery.
In the event of a repurchase or substitution, upon such date, the Trustee shall
deposit, or cause the Servicer to deposit, such funds, or shall draw upon the
letter of credit and deposit the proceeds of such draw, into the Certificate
Account to be applied to the Purchase Price (or the Substitution Shortfall
Amount, if applicable) in accordance with Section 2.03(b). All such funds
deposited with the Trustee shall be invested in Permitted Investments, at the
direction and for the benefit of the related Mortgage Loan Seller. Such funds or
letter of credit shall be treated as an "outside reserve fund" under the REMIC
Provisions, beneficially owned by the related Mortgage Loan Seller for federal
income tax purposes, which Mortgage Loan Seller shall remain liable for any
taxes payable on income or gain with respect thereto (until such funds are
applied pursuant to the preceding sentence).
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii) and (xiii) through (xx) of
the definition of "Mortgage File" exist or are required to be delivered by the
Depositor, the Mortgage Loan Sellers or any other Person (unless identified on
the Mortgage Loan Checklist) or (ii) to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are genuine, enforceable,
sufficient to perfect and maintain the perfection of a security interest or
appropriate for the represented purpose or that they are other than what they
purport to be on their face and, with respect to the documents specified in
clause (ix), whether the insurance is effective as of the date of the
recordation, whether all endorsements or riders issued are included in the file
or if the policy has not been issued whether any acceptable replacement document
has been dated the date of the related Mortgage Loan funding. Further, with
respect to the UCC financing statements referenced in the Mortgage File, absent
actual knowledge to the contrary or copies of UCC financing statements delivered
to the Trustee as part of the Mortgage File indicating otherwise, the Trustee
may assume, for the purposes of the filings and the certification to be
delivered in accordance with this Section 2.02 that the related Mortgage File
should include one state level UCC financing statement filing for each Mortgaged
Property (or with respect to any Mortgage Loan that has two or more Mortgagors,
for each Mortgagor), or if the Trustee has received notice that a particular UCC
financing statement was filed as a fixture filing, that the related Mortgage
File should include only a local UCC financing statement filing for each
Mortgaged Property (or with respect to any Mortgage Loan that has two or more
Mortgagors, for each Mortgagor). The assignments of the UCC's to be assigned to
the Trust will be delivered on the new national forms (or on such other form as
may be acceptable for filing in the applicable jurisdiction) and in recordable
format and will be filed in the jurisdiction(s) where such UCC financing
statements were originally filed, as indicated in the documents provided, and in
accordance with then current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed or
(2) subject to Section 2.01(b), not to have been delivered, (3) to contain
information that does not conform in any material respect with the corresponding
information set forth in the Mortgage Loan Schedule or (4) to be defective on
its face (each, a "Defect" in the related Mortgage File), the Trustee shall
promptly so notify the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder and the applicable Mortgage Loan Seller (and in no
event later than 90 days after the Closing Date and every quarter thereafter,
commencing with the quarter ending June 31, 2004 until June 31, 2007, by
providing a Trustee Exception Report setting forth for each affected Mortgage
Loan, with particularity, the nature of such Defect (in a form reasonably
acceptable to the Trustee and such Mortgage Loan Seller and separating items
required to be in the Mortgage File but never delivered from items which were
delivered by such Mortgage Loan Seller but are out for recording and have not
been returned by the recorder's office).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
(b) If any Certificateholder, the Servicer, the Special Servicer,
the Paying Agent or the Trustee discovers or receives notice of a Defect in any
Mortgage File or a breach of any representation or warranty with respect to a
Mortgage Loan set forth in, or required to be made with respect to, a Mortgage
Loan by the applicable Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase Agreement (a "Breach"), which Defect or Breach, as the case may
be, materially and adversely affects the value of such Mortgage Loan, the
related Mortgaged Property or the interests of any Certificateholder therein,
such Certificateholder, the Servicer, the Special Servicer, the Paying Agent or
the Trustee, as applicable, shall give prompt written notice of such Defect or
Breach, as the case may be, to the Depositor, the Servicer, the Special
Servicer, the applicable Mortgage Loan Seller, the Paying Agent, the Trustee and
the Directing Certificateholder and shall request in writing that the applicable
Mortgage Loan Seller, not later than 90 days after the earlier of the applicable
Mortgage Loan Seller's receipt of such notice or, in the case of a Breach
relating to a Mortgage Loan not being a "qualified mortgage" within the meaning
of the REMIC Provisions, such Mortgage Loan Seller's discovery of such Defect or
Breach, (i) cure such Defect or Breach (the "Initial Cure Period"), as the case
may be, in all material respects, (ii) repurchase the affected Mortgage Loan or
REO Loan at the applicable Purchase Price and in conformity with the applicable
Mortgage Loan Purchase Agreement or (iii) substitute a Qualified Substitute
Mortgage Loan (other than with respect to the Forum Shops Mortgage Loan for
which no substitution will be permitted) for such affected Mortgage Loan or REO
Loan (provided that in no event shall any such substitution occur later than the
second anniversary of the Closing Date) and pay the Servicer for deposit into
the Certificate Account, any Substitution Shortfall Amount in connection
therewith and in conformity with the applicable Mortgage Loan Purchase
Agreement; provided, however, that if such Breach and Defect is capable of being
cured but is not cured within the Initial Cure Period, and the applicable
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such Breach or Defect within the Initial Cure Period, the applicable Mortgage
Loan Seller shall have an additional 90 days commencing immediately upon the
expiration of the Initial Cure Period (such additional 90-day period, the
"Extended Cure Period") to complete such cure (or, failing such cure, to
repurchase the related Mortgage Loan or REO Loan or substitute a Qualified
Substitute Mortgage Loan (other than with respect to the Forum Shops Mortgage
Loan for which no substitution will be permitted)) and provided, further, that
with respect to such Extended Cure Period the applicable Mortgage Loan Seller
shall have delivered an officer's certificate to the Rating Agencies, the
Servicer, the Trustee and the Directing Certificateholder, setting forth the
reason such Breach or Defect is not capable of being cured within the Initial
Cure 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 Breach or Defect will be cured within the Extended
Cure Period. Notwithstanding the foregoing, any Defect or Breach which causes
any Mortgage Loan not to be a "qualified mortgage" (within the meaning of
Section 860G(a)(3) of the Code, but without regard to the rule of Treasury
Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be
treated as a qualified mortgage) shall be deemed to materially and adversely
affect the interests of Certificateholders therein, and such Mortgage Loan shall
be repurchased or substituted for without regard to the extended cure period
described in the preceding sentence. If the affected Mortgage Loan is to be
repurchased, the funds in the amount of the Purchase Price remitted by the
applicable Mortgage Loan Seller are to be deposited by wire transfer in the
Certificate Account. Monthly Payments due with respect to each Qualified
Substitute Mortgage Loan (if any) after the related date of substitution, and
Monthly Payments due with respect to each corresponding replaced Mortgage Loan
(if any) after the related Cut-off Date and received by the Servicer or the
Special Servicer on behalf of the Trust on or prior to the related date of
substitution, shall be part of the Trust Fund. Monthly Payments due with respect
to each Qualified Substitute Mortgage Loan (if any) on or prior to the related
date of substitution, and Monthly Payments due with respect to each
corresponding replaced Mortgage Loan (if any) and received by the Servicer or
the Special Servicer on behalf of the Trust after the related date of
substitution, shall not be part of the Trust Fund and are to be remitted by the
Servicer to the Mortgage Loan Seller effecting the related substitution promptly
following receipt.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interest of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage (including any related assignments) that appears to be regular on its
face, unless there is included in the Mortgage File a certified copy of the
Mortgage and a certificate stating that the original signed Mortgage was sent
for recordation; (c) the absence from the Mortgage File of the item called for
by paragraph (ix) of the definition of "Mortgage File;" (d) the absence from the
Mortgage File of any required letter of credit; (e) with respect to any
leasehold Mortgage Loan, the absence from the related Mortgage File of a copy
(or an original, if available) of the related Ground Lease; or (f) the absence
from the Mortgage File of any intervening assignments required to create a
complete chain of assignments to the Trustee on behalf of the Trust, unless
there is included in the Mortgage File a certified copy of the intervening
assignment and a certificate stating that the original intervening assignments
were sent for recordation; provided, however, that no Defect (except a Defect
previously described in clauses (a) through (f) above) shall be considered to
materially and adversely affect the value of the related Mortgage Loan, the
related Mortgaged Property or the interests of the Trustee or Certificateholders
unless the document with respect to which the Defect exists is required in
connection with an imminent enforcement of the mortgagee's rights or remedies
under the related Mortgage Loan, defending any claim asserted by any Mortgagor
or third party with respect to the Mortgage Loan, establishing the validity or
priority of any lien on any collateral securing the Mortgage Loan or for any
immediate significant servicing obligation. Notwithstanding the foregoing, the
delivery of executed escrow instructions or a commitment to issue a lender's
title insurance policy, as provided in clause (ix) of the definition of
"Mortgage File," in lieu of the delivery of the actual policy of lender's title
insurance, shall not be considered a Defect or Breach with respect to any
Mortgage File if such actual policy is delivered to the Trustee or a Custodian
on its behalf not later than 18 months following the Closing Date.
(c) In connection with any repurchase of, or substitution of a
Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by this
Section 2.03, the Trustee, the Servicer and the Special Servicer shall each
tender to the applicable Mortgage Loan Seller, upon delivery to each of the
Trustee, the Servicer and the Special Servicer of a trust receipt executed by
the applicable Mortgage Loan Seller evidencing such repurchase or substitution,
all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by each of the Trustee, the Servicer and the Special
Servicer, and each document that constitutes a part of the Mortgage File that
was endorsed or assigned to the Trustee shall be endorsed or assigned, as the
case may be, to the applicable Mortgage Loan Seller in the same manner as
provided in Section 6 of the related Mortgage Loan Purchase Agreement, so as to
vest in such Mortgage Loan Seller the legal and beneficial ownership of such
repurchased or substituted for Mortgage Loan (including property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan documents.
(d) Section 6(e) of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders, or the Trustee on
behalf of the Certificateholders, with respect to any Defect in a Mortgage File
or any Breach of any representation or warranty with respect to a Mortgage Loan
set forth in or required to be made by the applicable Mortgage Loan Seller
pursuant to Section 6 of the applicable Mortgage Loan Purchase Agreement.
(e) The Servicer and the Special Servicer (in the case of Specially
Serviced Mortgage Loans) shall, for the benefit of the Certificateholders and
the Trustee (as holder of the Uncertificated Lower-Tier Interests), enforce the
obligations of the applicable Mortgage Loan Seller under the applicable Mortgage
Loan Purchase Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, if any shall be carried out in such form, to such
extent and at such time as the Servicer or the Special Servicer, as the case may
be, would require were it, in its individual capacity, the owner of the affected
Mortgage Loan(s). Any costs incurred by the Servicer with respect to the
enforcement of the obligations of the applicable Mortgage Loan Seller under the
applicable Mortgage Loan Purchase Agreement shall be deemed to be Servicing
Advances to the extent not otherwise provided herein. The Servicer and the
Special Servicer, as the case may be, shall be reimbursed for the reasonable
costs of such enforcement: first, from a specific recovery, if any, of costs,
expenses or attorneys' fees against the applicable Mortgage Loan Seller; second,
pursuant to Section 3.05(a)(vii) herein out of the related Purchase Price, to
the extent that such expenses are a specific component thereof; and third, if at
the conclusion of such enforcement action it is determined that the amounts
described in clauses first and second are insufficient, then pursuant to Section
3.05(a)(viii) herein out of general collections on the Mortgage Loans on deposit
in the Certificate Account.
(f) If a Mortgage Loan Seller incurs any expense in connection with
the curing of a Breach which also constitutes a default under the related
Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall
have a right, and shall be subrogated to the rights of the Trustee and the Trust
Fund under the Mortgage Loan, to recover the amount of such expenses from the
related Mortgagor; provided, however, that such Mortgage Loan Seller's rights
pursuant to this Section 2.03(f) shall be junior, subject and subordinate to the
rights of the Trustee, the Trust Fund, the Servicer and the Special Servicer to
recover amounts owed by the related Mortgagor under the terms of such Mortgage
Loan, including, without limitation, the rights to recover unreimbursed
Advances, accrued and unpaid interest on Advances at the Reimbursement Rate and
unpaid or unreimbursed expenses of the Trustee, the Trust Fund, the Servicer or
the Special Servicer allocable to such Mortgage Loan. The Servicer or, with
respect to a Specially Serviced Mortgage Loan, the Special Servicer, shall use
reasonable efforts to recover such expenses for such Mortgage Loan Seller to the
extent consistent with the Servicing Standards, but taking into account the
subordinate nature of the reimbursement to the Mortgage Loan Seller; provided,
however, that the Servicer or, with respect to a Specially Serviced Mortgage
Loan, the Special Servicer determines in the exercise of its sole discretion
consistent with the Servicing Standards that such actions by it will not impair
the Servicer's and/or the Special Servicer's collection or recovery of
principal, interest and other sums due with respect to the related Mortgage Loan
which would otherwise be payable to the Servicer, the Special Servicer, the
Trustee and the Certificateholders pursuant to the terms of this Agreement;
provided, further, that the Special Servicer may waive the collection of amounts
due on behalf of the Mortgage Loan Seller in its sole discretion in accordance
with the Servicing Standards.
(g) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in the first paragraph of Section
2.03(b), (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable
Defect or Breach does not constitute a Defect or Breach, as the case may be, as
to any other Crossed Loan in such Crossed Group (without regard to this
paragraph), then the applicable Defect or Breach, as the case may be, will be
deemed to constitute a Defect or Breach, as the case may be, as to any other
Crossed Loan in the Crossed Group for purposes of this paragraph, and the
related Mortgage Loan Seller will be required to repurchase or substitute for
such other Crossed Loan(s) in the related Crossed Group as provided in Section
2.03(b) unless such other Crossed Loans satisfy the Crossed Loan Repurchase
Criteria and satisfy all other criteria for substitution and repurchase of
Mortgage Loans set forth herein. In the event that the remaining Crossed Loans
in such Crossed Group satisfy the aforementioned criteria, the Mortgage Loan
Seller may elect either to repurchase or substitute for only the affected
Crossed Loan as to which the related Breach or Defect exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Group. Any
reserve or other cash collateral or letters of credit securing the Crossed Loans
shall be allocated between such Mortgage Loans in accordance with the related
Mortgage Loan documents. Except as provided in Section 2.03(h), all other terms
of the Mortgage Loans shall remain in full force and effect without any
modification thereof.
(h) With respect to any Crossed Loan, to the extent that the
applicable Mortgage Loan Seller is required to repurchase or substitute for such
Mortgage Loan in the manner prescribed in Section 2.03(g) while the Trustee
continues to hold any other Crossed Loans in the related Crossed Group, the
applicable Mortgage Loan Seller and the Depositor shall, as set forth in the
related Mortgage Loan Purchase Agreement, forbear from enforcing any remedies
against the other's Primary Collateral but each will be permitted to exercise
remedies against the Primary Collateral securing its respective Mortgage Loans,
including with respect to the Trustee, the Primary Collateral securing Mortgage
Loans still held by the Trustee, so long as such exercise does not impair the
ability of the other party to exercise its remedies against its Primary
Collateral. If the exercise of remedies by one party would impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loans held by such party, then both parties have agreed in
the related Mortgage Loan Purchase Agreement to forbear from exercising such
remedies until the loan documents evidencing and securing the relevant Mortgage
Loans can be modified in a manner that complies with the Mortgage Loan Purchase
Agreement to remove the threat of impairment as a result of the exercise of
remedies.
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.
The Trustee hereby acknowledges the assignment to it of the Mortgage
Loans and, subject to Sections 2.01 and 2.02, the delivery to it, or a Custodian
on its behalf, of the Mortgage Files and a fully executed original counterpart
of each of the Mortgage Loan Purchase Agreements, together with the assignment
to it of all of the other assets included in the Lower-Tier REMIC. Concurrently
with such assignment and delivery, and in exchange therefor, the Trustee (i)
acknowledges the issuance of the Uncertificated Lower-Tier Interests by the
Paying Agent to the Depositor and the authentication and delivery of the Class
LR Certificates by the Paying Agent to or upon the order of the Depositor, in
exchange for the Mortgage Loans (other than Excess Interest thereon) receipt of
which is hereby acknowledged, (ii) acknowledges the assignments to it of the
Uncertificated Lower-Tier Interests and the other assets comprising the
Upper-Tier REMIC and (iii) immediately thereafter, acknowledges that it has
caused the Certificate Registrar to execute and caused the Authenticating Agent
to authenticate and to deliver to or upon the order of the Depositor, in
exchange for the Uncertificated Lower-Tier Interests, the Regular Certificates
(other than the portion of the Class NR Certificates evidencing portion of the
Trust Fund consisting of the Excess Interest and the Excess Interest
Distribution Account) and the Class R Certificates, and the Depositor hereby
acknowledges the receipt by it or its designees, of such Certificates in
authorized Denominations evidencing the entire beneficial ownership of the
Upper-Tier REMIC.
Section 2.05 Grantor Trust Designations.
The Trustee hereby acknowledges the assignment to it of the Excess
Interest and, concurrently with such assignment, acknowledges the issuance of
the Class NR Certificates, exclusive of the portion thereof representing a
"regular interest" in the Upper-Tier REMIC, which are hereby designated as
undivided beneficial interests in the portion of the Trust Fund consisting of
Excess Interest and the Excess Interest Distribution Account, which portion
shall be treated as part of a grantor trust within the meaning of subpart E,
Part I of subchapter J of the Code.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act
as Special Servicer; Administration of the Mortgage Loans.
(a) (i) The Servicer shall service and administer the Mortgage Loans
(other than the Forum Shops Mortgage Loan, which will be serviced pursuant to
the Forum Shops Pooling Agreement) and the Companion Loans it is obligated to
service pursuant to this Agreement as an independent contractor on behalf of the
Trust and in the best interests of and for the benefit of the Certificateholders
and, in the case of the Companion Loans, the Companion Holders and the Trustee
(as holder of the Uncertificated Lower-Tier Interests) as a collective whole,
taking into account the subordination of the Companion Loans (as determined by
the Servicer in its reasonable judgment) in accordance with applicable law, the
terms of this Agreement (and with respect to a Loan Pair, the related
Intercreditor Agreement) and the terms of the respective Mortgage Loans and, if
applicable, the Companion Loans, and to the extent consistent with the
foregoing, in accordance with the higher of the following standards of care: (1)
with the same care, skill and diligence as is normal and usual in its mortgage
servicing activities on behalf of third-parties or on behalf of itself,
whichever is higher, with respect to mortgage loans that are comparable to the
Mortgage Loans, (2) with a view to the timely collection of all principal and
interest under the Mortgage Loans or, if applicable, the Companion Loans and the
AB Mortgage Loans as a collective whole, taking into account the subordination
of the Companion Loans, as applicable, and (3) without regard to: (A) any
relationship that the Servicer or any Affiliate of the Servicer may have with
any Mortgagor; (B) the ownership of any Certificate by the Servicer or any
Affiliate of the Servicer; (C) the Servicer's obligation to make Advances and
(D) the Servicer's right to receive compensation payable to it and reimbursement
for its costs hereunder or with respect to any particular transaction (the
foregoing, collectively referred to as the "Servicer Servicing Standard"). With
respect to a Loan Pair, in the event of a conflict between this Agreement and
the related Intercreditor Agreement, the Intercreditor Agreement shall control;
provided, that neither the Servicer nor the Special Servicer shall be required
to violate the REMIC Provisions or the Servicer Servicing Standard. Pursuant to
the terms of the Intercreditor Agreements relating to the AB Mortgage Loans, it
is contemplated that the Mortgagor under each AB Mortgage Loan and its related
Companion Loan will remit payments on the AB Mortgage Loan to the Servicer
hereunder, and for each Companion Loan that has been securitized and for each
Companion Loan that is securitized in the future, the related Mortgagor will
remit payments on such Companion Loans directly to the servicer for such
securitizations (as of the Closing Date, with respect to the Central Park Office
Companion Loan, the Grandview Xxxxxxx Companion Loan and the Xxxxxxxx Apartments
Companion Loan, the related Mortgagor will remit payments on such loans to
Wachovia Bank, National Association, the servicer under the Mezz Cap Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates Series 2004-C1);
provided, however, that under the circumstances identified in the related
Intercreditor Agreements, the Mortgagor under each Companion Loan (even after
such Companion Loan has been securitized) will be required to remit payments on
such Companion Loan directly to the Servicer under this Agreement.
(ii) The Special Servicer shall diligently service and administer
the Specially Serviced Mortgage Loans (other than the Forum Shops Mortgage
Loan, which will be serviced pursuant to the Forum Shops Pooling
Agreement) (and the Companion Loans) it is obligated to service pursuant
to this Agreement on behalf of the Trust and in the best interests of and
for the benefit of the Certificateholders and, in the case of the
Companion Loans, the related Companion Holders and the Trustee (as holder
of the Uncertificated Lower-Tier Interests) (as determined by the Special
Servicer in its reasonable judgment) in accordance with applicable law,
the terms of this Agreement (and, with respect to each Loan Pair, the
related Intercreditor Agreement) and the terms of the respective Specially
Serviced Mortgage Loans and, if applicable, the related Companion Loan,
taking into account the subordinate nature of the Companion Loans. With
respect to the Loan Pairs, in the event of a conflict between this
Agreement and the related Intercreditor Agreement, the related
Intercreditor Agreement shall control; provided, in no event shall the
Special Servicer take any action or omit to take any action in accordance
with the terms of any Intercreditor Agreement that would cause such
servicer to violate the Special Servicer Servicing Standards. To the
extent consistent with the foregoing, the Special Servicer shall service
the Specially Serviced Mortgage Loans in accordance with the higher of the
following standards of care: (1) in the same manner in which, and with the
same care, skill, prudence and diligence with which the Special Servicer
services and administers similar mortgage loans for other third-party
portfolios and (2) the same care, skill, prudence and diligence with which
the Special Servicer services and administers similar mortgage loans owned
by the Special Servicer, in either case, with a view to the maximization
of timely recovery of principal and interest on a net present value basis
on the Mortgage Loans, the Companion Loans or the Specially Serviced
Mortgage Loans, as applicable, and the best interests of the Trust, the
Companion Holders and the Certificateholders, as determined by the Special
Servicer in its reasonable judgment, in either case, giving due
consideration to the customary and usual standards of practice of prudent
institutional, multifamily and commercial mortgage lenders, loan servicers
and asset managers, but without regard to: (i) any relationship that the
Special Servicer or any Affiliate of the Special Servicer may have with
any Mortgagor, any Mortgage Loan Seller, or any other parties to this
Agreement; (ii) the ownership of any Certificate or other interest in any
Mortgage Loan or any Forum Shops Companion Loan Securities by the Special
Servicer or any Affiliate of the Special Servicer, as applicable; (iii)
the Special Servicer's (at its option) obligation to make Advances; (iv)
the adequacy of the Special Servicer's, right to receive compensation for
its services and reimbursement for its costs hereunder or with respect to
any particular transaction; (v) the ownership, servicing or management for
others of any other mortgage loans or mortgaged properties by the Special
Servicer (the foregoing, collectively referred to as the "Special Servicer
Servicing Standard").
Without limiting the foregoing, subject to Section 3.21, the Special
Servicer shall be obligated to service and administer (i) any Mortgage Loans
(other than the Forum Shops Mortgage Loan) (and the Companion Loans) as to which
a Servicing Transfer Event has occurred and is continuing (the "Specially
Serviced Mortgage Loans") and (ii) any REO Properties; provided that the
Servicer shall continue to receive payments and make all calculations, and
prepare, or cause to be prepared, all reports, required hereunder with respect
to the Specially Serviced Mortgage Loans, except for the reports specified
herein as prepared by the Special Servicer, as if no Servicing Transfer Event
had occurred and with respect to the REO Properties (and the related REO Loans)
as if no REO Acquisition had occurred, and to render such services with respect
to such Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein; provided, further, however, that the Servicer shall not be
liable for failure to comply with such duties insofar as such failure results
from a failure of the Special Servicer to provide sufficient information to the
Servicer to comply with such duties or failure by the Special Servicer to
otherwise comply with its obligations hereunder. Each Mortgage Loan or Companion
Loan that becomes a Specially Serviced Mortgage Loan shall continue as such
until satisfaction of the conditions specified in Section 3.21(a). Without
limiting the foregoing, subject to Section 3.21, the Servicer shall be obligated
to service and administer all Mortgage Loans (and the Companion Loans) which are
not Specially Serviced Mortgage Loans (other than the Forum Shops Mortgage
Loan); provided that the Special Servicer shall make the inspections, use its
reasonable efforts to collect the statements and forward to the Servicer to
prepare the reports in respect of the related Mortgaged Properties with respect
to Specially Serviced Mortgage Loans in accordance with Section 3.12; and
provided further, that after notification to the Servicer, the Special Servicer
may coordinate with the Servicer to contact the Mortgagor of any Non-Specially
Serviced Mortgage Loan if efforts by the Servicer to collect required financial
information have been unsuccessful or any other issues remain unresolved. The
Special Servicer's actions shall be coordinated through and with the cooperation
of the Servicer.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and the Companion Loans and any
applicable Intercreditor Agreements (and intercreditor agreements entered into
after the Closing Date with respect to any Mortgage Loan in connection with
mezzanine debt permitted under the related loan documents), and applicable law,
the Servicer and the Special Servicer each shall have full power and authority,
acting alone or in the case of the Servicer, subject to Section 3.22, through
one or more Sub-Servicers, to do or cause to be done any and all things in
connection with such servicing and administration for which it is responsible
which it may deem necessary or desirable. Without limiting the generality of the
foregoing, each of the Servicer and the Special Servicer, in its own name (or,
subject to the last sentence of this Section 3.01(b), in the name of the Trustee
and, if applicable, the Companion Holder), is hereby authorized and empowered by
the Trustee and obligated to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, with respect to each Mortgage
Loan (and, with respect to each Companion Loan, the applicable Companion Holder)
it is obligated to service under this Agreement: (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by the related Mortgage or other security document
in the related Mortgage File on the related Mortgaged Property and related
collateral; (ii) subject to Section 3.08 and Section 3.20, any and all
modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, pledge agreements and other
documents in connection with a defeasance, or of partial or full release or
discharge, and all other comparable instruments. Subject to Section 3.10, the
Trustee shall furnish, or cause to be furnished, to the Servicer or the Special
Servicer any powers of attorney and other documents necessary or appropriate to
enable the Servicer or the Special Servicer, as the case may be, to carry out
its servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any negligence with respect to, or misuse
of, any such power of attorney by the Servicer or the Special Servicer.
Notwithstanding anything contained herein to the contrary, the Servicer shall
not without the Trustee's written consent: (i) initiate any action, suit or
proceeding solely under the Trustee's name without indicating the Servicer's
representative capacity or (ii) take any action with the intent to cause, or
which is reasonably likely to cause, the Trustee to be registered to do business
in any state.
(c) To the extent the Servicer is permitted pursuant to the terms of
the related Mortgage Loan documents or Companion Loan documents (including the
related Intercreditor Agreement) to exercise its discretion with respect to any
action which requires a confirmation of the Rating Agencies that such action
will not result in the downgrade, withdrawal or qualification of the ratings of
any Class of Certificates, the Servicer shall require the costs of such written
confirmation to be borne by the related Mortgagor. To the extent the terms of
the related Mortgage Loan documents or Companion Loan documents require the
Mortgagor to bear the costs of any confirmation of the Rating Agencies that an
action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates, the Servicer shall not waive the
requirement that such costs and expenses be borne by the related Mortgagor. To
the extent that the terms of the related Mortgage Loan documents or Companion
Loan documents are silent as to who bears the costs of any confirmation of the
Rating Agencies that an action will not result in the downgrade, withdrawal or
qualification of the ratings of any Class of Certificates, the Servicer shall
use reasonable efforts to have the Mortgagor bear such costs and expenses. The
Servicer shall not be responsible for the payment of such costs and expenses out
of pocket.
(d) The relationship of each of the Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(e) The Servicer shall, to the extent permitted by the related
Mortgage Loan documents or Companion Loan documents and consistent with the
Servicing Standards, permit Escrow Payments to be invested only in Permitted
Investments.
(f) Within 60 days after the Closing Date, the Servicer shall notify
(i) each provider of a letter of credit for each Mortgage Loan identified as
having a letter of credit on the Mortgage Loan Schedule, that the Trustee (in
care of the Servicer) for the benefit of the Certificateholders and any related
Companion Loan Holders shall be the beneficiary under each such letter of credit
and (ii) each lessor under a Ground Lease for each Mortgage Loan identified as
subject to a leasehold interest on the Mortgage Loan Schedule, that the Servicer
or the Special Servicer shall service such Mortgage Loan for the benefit of the
Certificateholders. If the Mortgage Loan documents do not require the related
Mortgagor to pay any costs and expenses relating to any modifications to the
related letter of credit, then the applicable Mortgage Loan Seller shall pay
such costs and expenses. If the Mortgage Loan documents require the related
Mortgagor to pay any costs and expenses relating to any modifications to the
related letter of credit, and such Mortgagor fails to pay such costs and
expenses after the Servicer has exercised reasonable efforts to collect such
costs and expenses from such Mortgagor, then the Servicer shall give the
applicable Mortgage Loan Seller notice of such failure and the amount of costs
and expenses, and such Mortgage Loan Seller shall pay such costs and expenses.
The costs and expenses of any modifications to Ground Leases shall be paid by
the related Mortgagor. Neither the Servicer or the Special Servicer shall have
any liability for the failure of any Mortgage Loan Seller to perform its
obligations under the related Mortgage Loan Purchase Agreement.
(g) Notwithstanding anything herein to the contrary, in no event
shall the Servicer make a Servicing Advance with respect to any Companion Loan
to the extent the related AB Mortgage Loan has been paid in full or is no longer
included in the Trust Fund.
(h) Servicing and administration of each Companion Loan shall
continue hereunder for so long as the corresponding AB Mortgage Loan or any
related REO Property is part of the Trust Fund or for such longer period as any
amounts payable by the related Companion Holder to or for the benefit of the
Trust or any party hereto in accordance with the related Intercreditor Agreement
remain due and owing.
(i) The Special Servicer agrees that it shall enforce, on behalf of
the Trust, subject to the Servicing Standards and to the extent the Special
Servicer determines such action is in the best interests of the Trust Fund, all
rights conveyed to the Trustee pursuant to the related Intercreditor Agreement.
The costs and expenses incurred by the Special Servicer in connection with such
enforcement shall be paid as a Servicing Advance.
(j) The Servicer agrees that it shall pay the annual surveillance
fees to the Rating Agencies.
(k) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Servicer's obligations and
responsibilities hereunder and the Servicer's authority with respect to the
Forum Shops Mortgage Loan are limited by and subject to the terms of the Forum
Shops Intercreditor Agreement and the rights of the Forum Shops Primary Servicer
and the Forum Shops Special Servicer with respect thereto under the Forum Shops
Pooling Agreement. The Servicer (or, with respect to any Specially Serviced
Loan, the Special Servicer) shall use reasonable best efforts consistent with
the Servicing Standards to enforce the rights of the Trustee (as holder of the
Forum Shops Mortgage Loan) under the Forum Shops Intercreditor Agreement and the
Forum Shops Pooling Agreement. The Servicer shall take such actions as it shall
deem reasonably necessary to facilitate the servicing of the Forum Shops
Mortgage Loan by the Forum Shops Primary Servicer and the Forum Shops Special
Servicer including, but not limited to, delivering appropriate requests for
release to the Trustee and custodian (if any) in order to deliver any portion of
the related Mortgage File to the Forum Shops Primary Servicer or Forum Shops
Special Servicer under the Forum Shops Pooling Agreement.
(l) The parties hereto acknowledge that the Forum Shops Mortgage
Loan is subject to the terms and conditions of the Forum Shops Intercreditor
Agreement and further acknowledge that, pursuant to the Forum Shops
Intercreditor Agreement, (i) the Forum Shops Mortgage Loan is to be serviced and
administered by the Forum Shops Primary Servicer in accordance with the Forum
Shops Pooling Agreement, and (ii) in the event that (A) the Forum Shops A-1 Note
is no longer part of the trust fund created by the Forum Shops Pooling Agreement
and (B) the Forum Shops Mortgage Loan is included in the Trust Fund, then, as
set forth in the Forum Shops Intercreditor Agreement, the Forum Shops Whole Loan
shall be serviced in accordance with the applicable provisions of the Forum
Shops Pooling Agreement as if such agreement was still in full force and effect
with respect to the Forum Shops Whole Loan, until such time as a new servicing
agreement has been agreed to by the parties to the Forum Shops Intercreditor
Agreement in accordance with the provisions of such agreement and confirmation
has been obtained from the Rating Agencies that such new servicing agreement
would not result in a downgrade, qualification or withdrawal of the then current
ratings of any Class of Certificates then outstanding.
Section 3.02 Collection of Mortgage Loan Payments.
(a) Each of the Servicer and the Special Servicer (with respect to
the Specially Serviced Mortgage Loans) shall make reasonable efforts to collect
all payments called for under the terms and provisions of the Mortgage Loans and
Companion Loans (subject to the right of each Companion Holder to receive
payments directly from the related Mortgagor pursuant to the related
Intercreditor Agreement) it is obligated to service hereunder, and shall follow
such collection procedures as are consistent with this Agreement (including,
without limitation, the Servicing Standards), provided that with respect to the
Mortgage Loans that have Anticipated Repayment Dates, so long as the related
Mortgagor is in compliance with each provision of the related Mortgage Loan
documents, the Servicer and Special Servicer, shall not take any enforcement
action with respect to the failure of the related Mortgagor to make any payment
of Excess Interest, other than requests for collection, until the maturity date
of the related Mortgage Loan or the outstanding principal balance of such
Mortgage Loan has been paid in full; provided that the Servicer or Special
Servicer, as the case may be, may take action to enforce the Trust Fund's right
to apply excess cash flow to principal in accordance with the terms of the
Mortgage Loan documents. The Servicer (with respect to the Non-Specially
Serviced Mortgage Loans) or the Special Servicer (with respect to the Specially
Serviced Mortgage Loans) each may in its discretion waive any Penalty Charge in
connection with any delinquent payment on a Mortgage Loan or Companion Loan it
is obligated to service hereunder two times during any period of twenty-four
consecutive months with respect to any Mortgage Loan or Companion Loan;
provided, however, neither the Servicer nor the Special Servicer shall waive any
Default Interest payable under the Harbor Plaza Mortgage Loan. Any additional
waivers during such 24 month period with respect to such Mortgage Loan may be
made only after the applicable Servicer or Special Servicer has given notice of
a proposed waiver to the Directing Certificateholder, and the Directing
Certificateholder has consented to such additional waiver (provided that if the
applicable Servicer or Special Servicer fails to receive a response to such
notice from the Directing Certificateholder in writing within five (5) days of
giving such notice, then the Directing Certificateholder shall be deemed to have
consented to such proposed waiver).
(b) All amounts collected on any Mortgage Loan or Companion Loan in
the form of payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including, without limitation, for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Note and Mortgage (and, with respect to each Loan Pair, the
related Intercreditor Agreement) and, in the absence of such express provisions,
shall be applied (after reimbursement first to the Trustee, and second to the
Servicer or Special Servicer, as applicable, for any related Servicing Advances
and interest thereon as provided herein and unpaid servicing compensation and
other related additional Trust Fund expenses): first, in connection with
Insurance and Condemnation Proceeds or Liquidation Proceeds, as a recovery of
any Workout-Delayed Reimbursement Amounts or Nonrecoverable Advances, in each
case, that were paid from collections on the Mortgage Loans and resulted in
principal distributed to the Certificateholders being reduced as a result of the
first proviso in the definition of "Principal Distribution Amount," "Loan Group
1 Principal Distribution Amount" and/or "Loan Group 2 Principal Distribution
Amount"; second, as a recovery of accrued and unpaid interest on such Mortgage
Loan or Companion Loan, as applicable, at the related Mortgage Rate in effect
from time to time to but not including the Due Date in the Due Period of
receipt; third, as a recovery of principal of such Mortgage Loan then due and
owing; fourth, in accordance with the Servicing Standards, as a recovery of any
other amounts due and owing on such Mortgage Loan or Companion Loan, as
applicable, including, without limitation, Penalty Charges, Yield Maintenance
Charges and Excess Interest (in that order); and fifth, as a recovery of
principal of such Mortgage Loan or Companion Loan, as applicable, to the extent
of its entire unpaid principal balance. Notwithstanding the preceding, such
provisions shall not be deemed to affect the priority of distributions of
payments. To the extent that such amounts are paid by a party other than a
Mortgagor, such amounts shall be deemed to have been paid in respect of a
purchase of all or part of the Mortgaged Property (in the case of Insurance and
Condemnation Proceeds or Liquidation Proceeds) and then paid by the Mortgagor
under the Mortgage Loan and Companion Loan, as applicable, in accordance with
the preceding sentence. Amounts collected on any REO Loan shall be deemed to be
applied in accordance with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
(and, with respect to each Loan Pair, the related Companion Loan and
Intercreditor Agreement) and applicable law, the Servicer shall apply all
Insurance and Condemnation Proceeds it receives on a day other than the Due Date
to amounts due and owing under the related Mortgage Loan as if such Insurance
and Condemnation Proceeds were received on the Due Date immediately succeeding
the month in which such Insurance and Condemnation Proceeds were received.
(d) In the event that the Servicer or Special Servicer receives
Excess Interest prior to the Determination Date for any Due Period, or receives
notice from the related Mortgagor that the Servicer or Special Servicer will be
receiving Excess Interest prior to the Determination Date for any Due Period,
the Servicer or Special Servicer, as applicable, will promptly notify the Paying
Agent. Subject to the provisions of Section 3.02(a) hereof, none of the
Servicer, the Special Servicer or the Paying Agent shall be responsible for any
such Excess Interest not collected after notice from the related Mortgagor.
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the Servicer shall, to the extent consistent with the Servicing
Standards, hold such escrows, letters of credit and proceeds thereof as
additional collateral and not apply such items to reduce the principal balance
of such Mortgage Loan unless otherwise required to do so pursuant to the
applicable Mortgage Loan documents.
(f) Promptly following the Closing Date, the Trustee shall send
written notice (in the form attached hereto as Exhibit R) to the Forum Shops
Primary Servicer stating that, as of the Closing Date, the Trustee is the holder
of the Forum Shops Mortgage Loan and directing the Forum Shops Primary Servicer
to remit to the Servicer all amounts payable to, and to forward, deliver or
otherwise make available, as the case may be, to the Servicer all reports,
statements, documents, communications and other information that are to be
forwarded, delivered or otherwise made available to, the holder of the Forum
Shops Mortgage Loan under the Forum Shops Intercreditor Agreement and the Forum
Shops Pooling Agreement. The Servicer shall, within one Business Day of receipt,
deposit into the Certificate Account all amounts received with respect to the
Forum Shops Mortgage Loan, the Forum Shops Mortgaged Property or any related REO
Property.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
(a) The Servicer shall establish and maintain one or more accounts
(the "Servicing Accounts"), into which all Escrow Payments shall be deposited
and retained, and shall administer such Servicing Accounts in accordance with
the Mortgage Loan (other than the Forum Shops Mortgage Loan) documents and
Companion Loan documents. Amounts on deposit in Servicing Accounts may only be
invested in accordance with the terms of the related Mortgage Loan documents or
in Permitted Investments in accordance with the provisions of Section 3.06.
Servicing Accounts shall be Eligible Accounts unless not permitted by the terms
of the related Mortgage Loan documents. Withdrawals of amounts so deposited from
a Servicing Account may be made only to: (i) effect payment of items for which
Escrow Payments were collected and comparable items; (ii) reimburse the Trustee
and then the Servicer or Special Servicer for any Servicing Advances; (iii)
refund to Mortgagors any sums as may be determined to be overages; (iv) pay
interest to Mortgagors on balances in the Servicing Account, if required by
applicable law or the terms of the related Mortgage Loan or Companion Loan and
as described below or, if not so required, to the Servicer; (v) withdraw amounts
deposited in error, (vi) pay Penalty Charges to the extent permitted by the
related Mortgage Loan documents, or (vii) clear and terminate the Servicing
Account at the termination of this Agreement in accordance with Section 9.01. As
part of its servicing duties, the Servicer shall pay or cause to be paid to the
Mortgagors interest on funds in Servicing Accounts, to the extent required by
law or the terms of the related Mortgage Loan; provided, however, that in no
event shall the Servicer be required to remit to any Mortgagor any amounts in
excess of actual net investment income or funds in the related Servicing
Account. If allowed by the related Mortgage Loan documents and applicable law,
the Servicer may charge the related Mortgagor an administrative fee for
maintenance of the Servicing Accounts.
(b) The Special Servicer, in the case of REO Loans (other than any
REO Loan succeeding the Forum Shops Mortgage Loan), and the Servicer, in the
case of all other Mortgage Loans (other than the Forum Shops Mortgage Loan) (and
each Companion Loan), shall maintain accurate records with respect to each
related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect
thereof. The Special Servicer, in the case of REO Loans (other than any REO Loan
succeeding the Forum Shops Mortgage Loan), and the Servicer, in the case of all
other Mortgage Loans (other than the Forum Shops Mortgage Loan) (and each
Companion Loan), shall use reasonable efforts consistent with the Servicing
Standards to obtain, from time to time, all bills for the payment of such items
(including renewal premiums) and shall effect payment thereof from the related
REO Account (with respect to REO Loans, to the extent of funds available
therefrom) or by the Servicer as Servicing Advances prior to the applicable
penalty or termination date and, in any event, prior to the institution of
foreclosure or similar proceedings with respect to the related Mortgaged
Property for nonpayment of such items, employing for such purpose Escrow
Payments (which shall be so applied by the Servicer at the written direction of
the Special Servicer in the case of REO Loans) as allowed under the terms of the
related Mortgage Loan (other than the Forum Shops Mortgage Loan) or Companion
Loan. The Servicer shall service and administer any reserve accounts (including
monitoring, maintaining or changing the amounts of required escrows) in
accordance with the terms of such Mortgage Loan and the Servicing Standards. To
the extent that a Mortgage Loan (other than the Forum Shops Mortgage Loan) or a
Companion Loan does not require a Mortgagor to escrow for the payment of real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items, the Servicer shall use reasonable efforts consistent with the
Servicing Standards to enforce the requirement of the related Mortgage that the
Mortgagor make payments in respect of such items at the time they first become
due and, in any event, prior to the institution of foreclosure or similar
proceedings with respect to the related Mortgaged Property for nonpayment of
such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans (other than the Forum Shops Mortgage Loan), the Servicer or, with respect
to Specially Serviced Mortgage Loans, the Special Servicer (as provided herein)
shall advance (which Servicing Advances by the Special Servicer shall be
reimbursed by the Servicer monthly on the P&I Advance Date, which reimbursement
shall constitute a Servicing Advance by the Servicer in a like amount) (for
which the Servicer may rely conclusively on the Special Servicer's determination
that such Servicing Advance shall not constitute a Nonrecoverable Servicing
Advance) with respect to each related Mortgaged Property (including any REO
Property) all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments and other similar items that are
or may become a lien thereon, (ii) ground rents (if applicable) and (iii)
premiums on Insurance Policies, in each instance if and to the extent Escrow
Payments collected from the related Mortgagor (or related REO Revenues, if
applicable) are insufficient to pay such item when due and the related Mortgagor
has failed to pay such item on a timely basis, and provided, however, that the
particular advance would not, if made, constitute a Nonrecoverable Servicing
Advance and provided, further, however, that with respect to the payment of
taxes and assessments, the Servicer shall not be required to make such advance
until the later of five Business Days after the Servicer, the Special Servicer
or the Paying Agent, as applicable, has received confirmation that such item has
not been paid or the date prior to the date after which any penalty or interest
would accrue in respect of such taxes or assessments. The Special Servicer shall
give the Servicer and the Trustee no less than five Business Days' written
(facsimile) notice before the date on which the Servicer is requested to make
any Servicing Advance with respect to a given Mortgage Loan or REO Property;
provided, however, that only two Business Days' written (facsimile) notice shall
be required in respect of Servicing Advances required to be made on an emergency
or urgent basis; provided, further, that the Special Servicer shall not be
entitled to make such a request (other than for Servicing Advances required to
be made on an urgent or emergency basis) more frequently than once per calendar
month (although such request may relate to more than one Servicing Advance). If
the Special Servicer makes more than one request for an emergency Servicing
Advance per month or if an emergency request for a Servicing Advance is made
with less than two Business Days' notice to the Servicer, then the Special
Servicer shall make such emergency Servicing Advance and the Servicer shall
reimburse the Special Servicer for the emergency Servicing Advance together with
interest on such Servicing Advance within five (5) Business Days of the Special
Servicer's written request; provided that the Servicer determines that such
Servicing Advance is not a Nonrecoverable Servicing Advance (which
Nonrecoverable Servicing Advance shall be reimbursed to the Special Servicer
pursuant to Section 3.05(a)). The Servicer may pay the aggregate amount of such
Servicing Advances listed on a monthly request to the Special Servicer, in which
case the Special Servicer shall remit such Servicing Advances to the ultimate
payees. In addition, the Special Servicer shall provide the Servicer and the
Trustee with such information in its possession as the Servicer or the Trustee,
as applicable, may reasonably request to enable the Servicer or the Trustee, as
applicable, to determine whether a requested Servicing Advance would constitute
a Nonrecoverable Advance. Any request by the Special Servicer that the Servicer
make a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing
Advance, and the Servicer shall be entitled to conclusively rely on such
determination, provided that the determination shall not be binding on the
Servicer. On the first Business Day after the Determination Date for each
Distribution Date, the Special Servicer shall report to the Servicer if the
Special Servicer determines any Servicing Advance previously made by the
Servicer with respect to a Specially Serviced Mortgage Loan or REO Loan is a
Nonrecoverable Servicing Advance. The Servicer shall be entitled to conclusively
rely on such a determination, provided that such determination shall not be
binding upon the Servicer. All such Advances shall be reimbursable in the first
instance from related collections from the Mortgagors and further as provided in
Section 3.05. No costs incurred by the Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of the Mortgaged Properties shall, for purposes
hereof, including, without limitation, the Paying Agent's (calculation)
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balances of the related Mortgage Loans or the Companion Loans,
notwithstanding that the terms of such Mortgage Loans or the Companion Loans so
permit. The failure by the Servicer to make any required Servicing Advance as
and when due (including any applicable cure periods) shall constitute an Event
of Default under Section 7.01(a)(iii) and, to the extent the Trustee has actual
knowledge of such failure, the Trustee shall make such Servicing Advance
pursuant to Section 7.05. Notwithstanding anything herein to the contrary, no
Servicing Advance shall be required hereunder if such Servicing Advance would,
if made, constitute a Nonrecoverable Servicing Advance. In addition, the
Servicer shall consider Unliquidated Advances in respect of prior Servicing
Advances for purposes of nonrecoverable determinations.
Notwithstanding anything to the contrary contained in this Section
3.03(c), the Servicer may in its good faith judgment elect (but shall not be
required) to make a Servicing Advance notwithstanding that the Servicer has
determined such Servicing Advance would be a Nonrecoverable Servicing Advance,
where making such Servicing Advance would prevent (i) the related Mortgaged
Property from being uninsured or being sold at a tax sale or (ii) any event that
would cause a loss of the priority of the lien of the related Mortgage, or the
loss of any security for the related Mortgage Loan, provided that in each
instance, the Servicer determines in accordance with the Servicing Standards (as
evidenced by an Officer's Certificate delivered to the Trustee) that making such
Servicing Advance is in the best interest of the Certificateholders (and, if
applicable, the Companion Holders, all as a collective whole). The Servicer
shall be entitled to reimbursement for such Nonrecoverable Servicing Advance in
accordance with Section 3.03(d).
The parties acknowledge that pursuant to the Forum Shops Pooling
Agreement, the Forum Shops Primary Servicer is obligated to make servicing
advances with respect to the Forum Shops Whole Loan. The Forum Shops Primary
Servicer shall be entitled to reimbursement for Nonrecoverable Servicing
Advances with respect to the Forum Shops Whole Loan (with, in each case, any
accrued and unpaid interest thereon provided for under the Forum Shops Pooling
Agreement) in the manner set forth in the Forum Shops Pooling Agreement and the
Forum Shops Intercreditor Agreement.
(d) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a), the Trustee, and then the
Servicer and then the Special Servicer, as the case may be, shall be entitled to
receive, out of any amounts then on deposit in the Certificate Account, interest
at the Reimbursement Rate in effect from time to time, accrued on the amount of
such Servicing Advance from the date made to, but not including, the date of
reimbursement. The Servicer shall reimburse itself and/or the Trustee, as the
case may be, for any outstanding Servicing Advance as soon as practically
possible after funds available for such purpose are deposited in the Certificate
Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan (other than
the Forum Shops Mortgage Loan), the Servicer shall request from the Mortgagor
written confirmation thereof within a reasonable time after the later of the
Closing Date and the date as of which such plan is required to be established or
completed. To the extent any repairs, capital improvements, actions or
remediations are required to have been taken or completed pursuant to the terms
of the Mortgage Loan (other than the Forum Shops Mortgage Loan), the Servicer
shall request from the Mortgagor written confirmation of such actions and
remediations within a reasonable time after the later of the Closing Date and
the date as of which such action or remediations are required to be or to have
been taken or completed. To the extent a Mortgagor shall fail to promptly
respond to any inquiry described in this Section 3.03(e), the Servicer shall, in
accordance with the Servicing Standards, determine whether the related Mortgagor
has failed to perform its obligations under the related Mortgage Loan and report
any such failure to the Special Servicer within a reasonable time after the
later of May 15, 2004, and the date as of which such actions or remediations are
required to be or to have been taken or completed.
Section 3.04 The Certificate Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Gain-on-Sale Reserve Account,
the Excess Interest Distribution Account and the Companion Distribution Account.
(a) The Servicer shall establish and maintain, or cause to be
established and maintained, a Certificate Account, in which the Servicer shall
deposit or cause to be deposited on a daily basis and in no event later than the
Business Day following receipt of available funds, except as otherwise
specifically provided herein, the following payments and collections received or
made by or on behalf of it subsequent to the Cut-off Date (other than in respect
of principal and interest on the Mortgage Loans or the Companion Loans due and
payable on or before the Cut-off Date, which payments shall be delivered
promptly to the appropriate Mortgage Loan Seller or its designee and other than
any amounts received from Mortgagors which are received in connection with the
purchase of defeasance collateral), or payments (other than Principal
Prepayments) received by it on or prior to the Cut-off Date but allocable to a
period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans or the Companion Loans;
(ii) all payments on account of interest on the Mortgage Loans or
the Companion Loans, including Excess Interest, Yield Maintenance Charges
and Default Interest;
(iii) Penalty Charges other than those allocable to interest to the
extent required to offset interest on Advances and additional Trust Fund
expenses (other than Special Servicing Fees, Liquidation Fees and Workout
Fees);
(iv) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of any
Mortgage Loan, the Companion Loan or REO Property (other than Liquidation
Proceeds that are received in connection with the purchase by the
Servicer, the Special Servicer, the Holders of the Controlling Class, or
the Holders of the Class LR Certificates of all of the Mortgage Loans and
any REO Properties in the Trust Fund and that are to be deposited in the
Lower-Tier Distribution Account pursuant to Section 9.01) together with
any recovery of Unliquidated Advances in respect of the related Mortgage
Loans;
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(vi) any amounts required to be deposited by the Servicer pursuant
to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Certificate Account;
(vii) any amounts required to be deposited by the Servicer or the
Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard or master single
interest policy; and
(viii) any Xxxxx Xxxxx-Up Payments remitted by CIBC Inc. in its sole
discretion to the Trust.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees or amounts collected for Mortgagor checks
returned for insufficient funds need not be deposited by the Servicer in the
Certificate Account. If the Servicer shall deposit in the Certificate Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the Certificate Account, any provision herein to the contrary
notwithstanding. Assumption, extension and modification fees actually received
from Mortgagors on Specially Serviced Mortgage Loans shall be promptly delivered
to the Special Servicer as additional servicing compensation.
Upon receipt of any of the foregoing amounts in clauses (i)-(iii)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within one (1) Business Day such amounts to the Servicer
for deposit into the Certificate Account in accordance with the first two
paragraphs of this Section 3.04(a). Any such amounts received by the Special
Servicer with respect to an REO Property shall be deposited by the Special
Servicer into the REO Account and remitted to the Servicer for deposit into the
Certificate Account pursuant to Section 3.16(c). With respect to any such
amounts paid by check to the order of the Special Servicer, the Special Servicer
shall endorse without recourse or warranty such check to the order of the
Servicer and shall promptly deliver any such check to the Servicer by overnight
courier.
The Servicer (as Companion Paying Agent) may maintain, as part of
the Certificate Account, a subaccount for the Companion Loans on behalf of and
in trust for the benefit of the related Companion Holders, into which subaccount
the Servicer shall deposit or cause to be deposited all amounts that it receives
described in the first paragraph of this Section 3.04(a) to the extent allocable
to the related Companion Loan in accordance with this Agreement and the related
Intercreditor Agreement, and out of which subaccount the Servicer may make
withdrawals to the extent withdrawals of such funds are provided for in Section
3.05(a) of this Agreement or in the related Intercreditor Agreement; provided,
it is understood that pursuant to the terms of the Intercreditor Agreement for
each Companion Loan, the related Companion Holder has the right to receive
payments on its Companion Loan directly from the related Mortgagor in certain
cases, as provided under the related Intercreditor Agreement, and in those
instances, the Servicer will not be responsible for making collections from the
related Mortgagor hereunder. Each such subaccount shall be an Eligible Account
and shall be entitled "GMAC Commercial Mortgage Corporation, as Servicer, on
behalf of and in trust for the related Companion Holder." Such subaccount shall
not be an asset of the Trust Fund or the Upper-Tier REMIC or Lower-Tier REMIC
formed hereunder.
Funds in the Certificate Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. The Servicer
shall give notice to the Trustee, the Special Servicer and the Depositor of the
new location of the Certificate Account prior to or promptly after any change
thereof.
(b) The Paying Agent, on behalf of the Trustee (as holder of
Uncertificated Lower-Tier Interests), shall establish and maintain the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account, the Interest Reserve Account and the Gain-on-Sale
Reserve Account in trust for the benefit of the Certificateholders (and the
Trustee as holder of the Uncertificated Lower-Tier Interests). The Companion
Paying Agent shall establish and maintain a trust account for distributions to
each Companion Holder (the "Companion Distribution Account") at the office of
the Companion Paying Agent to be held in trust for the benefit of the related
Companion Holder. The Companion Distribution Account shall be an Eligible
Account. The Paying Agent is hereby authorized to make deposits in and
withdrawals from the Distribution Account in accordance with the terms of this
Agreement. The Servicer shall deliver to the Paying Agent each month on or
before the P&I Advance Date therein, for deposit in the Lower-Tier Distribution
Account, that portion of the Available Distribution Amount attributable to the
Mortgage Loans (in each case, calculated without regard to clause (a)(iv),
(a)(viii) and (c) and (d) of the definition of Available Distribution Amount)
for the related Distribution Date then on deposit in the Certificate Account.
The Servicer shall deliver to the Companion Paying Agent each month
on or before 2:00 p.m. (New York City time) on the P&I Advance Date (or if not a
Business Day, the immediately preceding Business Day), for deposit in the
Companion Distribution Account, an aggregate amount of immediately available
funds that the Servicer received for such month pursuant to the terms of the
related Intercreditor Agreements and this Agreement and required to be
distributed to the Companion Holders pursuant to the related Intercreditor
Agreement and Section 4.01(k).
The Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the Interest Reserve Account may be subaccounts of a single account,
which shall be maintained as a segregated account separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account pursuant to the preceding paragraph, the
Servicer shall, as and when required hereunder, deliver to the Paying Agent for
deposit in the Lower-Tier Distribution Account:
(i) any amounts required to be deposited by the Servicer pursuant to
Section 3.19 as Compensating Interest Payments in connection with
Prepayment Interest Shortfalls;
(ii) any P&I Advances required to be made by the Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by the Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class
LR Certificates in connection with the purchase of all of the Mortgage
Loans and any REO Properties in the Trust Fund pursuant to Section 9.01
(exclusive of that portion thereof required to be deposited in the
Certificate Account pursuant to Section 9.01);
(iv) any Yield Maintenance Charges actually collected; and
(v) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
If, as of the close of business (New York City time), on any P&I
Advance Date or on such other date as any amount referred to in the foregoing
clauses (i) through (v) are required to be delivered hereunder, the Servicer
shall not have delivered to the Paying Agent for deposit in the Lower-Tier
Distribution Account and the Excess Interest Distribution Account the amounts
required to be deposited therein pursuant to the provisions of this Agreement
(including any P&I Advance pursuant to Section 4.03(a) hereof), the Servicer
shall pay the Paying Agent interest on such late payment at the Prime Rate from
the time such payment was required to be made (without regard to any grace
period provided to the Servicer) until such late payment is received by the
Paying Agent.
The Paying Agent shall, upon receipt, deposit in the Lower-Tier
Distribution Account any and all amounts received by the Paying Agent that are
required by the terms of this Agreement to be deposited therein.
Promptly on each Distribution Date, the Paying Agent shall 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 Regular Distribution Amount and the amount of any Yield
Maintenance Charges for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(b) and
4.01(d), respectively.
Funds on deposit in the Gain-on-Sale Reserve Account, the Interest
Reserve Account and the Excess Interest Distribution Account shall be held
uninvested. Funds on deposit in the Upper-Tier Distribution Account and the
Lower-Tier Distribution Account shall be held uninvested. As of the Closing
Date, the Interest Reserve Account, the Upper-Tier Distribution Account and the
Lower-Tier Distribution Account shall be located at the offices of the Paying
Agent. The Paying Agent shall give notice to the Trustee, the Servicer and the
Depositor of the location of the Interest Reserve Account, the Upper-Tier
Distribution Account and the Lower-Tier Distribution Account and, if
established, the Excess Interest Distribution Account and the Gain-on-Sale
Reserve Account, prior to any change thereof.
(c) Prior to any Determination Date during which Excess Interest is
received, and upon notification from the Servicer or Special Servicer pursuant
to Section 3.02(d), the Paying Agent, on behalf of the Certificateholders, shall
establish and maintain the Excess Interest Distribution Account in the name of
the Paying Agent in trust for the benefit of the Class NR Certificateholders.
The Excess Interest Distribution Account shall be established and maintained as
an Eligible Account. Prior to the applicable Distribution Date, the Servicer
shall remit to the Paying Agent for deposit in the Excess Interest Distribution
Account an amount equal to the Excess Interest received prior to the
Determination Date for the applicable Due Period.
Following the distribution of Excess Interest to Class NR
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Paying Agent shall terminate the Excess Interest
Distribution Account.
(d) The Paying Agent shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as a
segregated account, separate and apart from trust funds for mortgage
pass-through certificates of other series administered by the Paying Agent and
other accounts of the Paying Agent. Funds in the Gain-on-Sale Reserve Account
shall be held uninvested.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Paying Agent for deposit into the Gain-on-Sale Reserve Account.
Section 3.05 Permitted Withdrawals from the Certificate Account,
the Distribution Accounts and the Companion Distribution Account.
(a) The Servicer may, from time to time, make withdrawals from the
Certificate Account for any of the following purposes (without duplication), the
order set forth below not constituting an order of priority for such
withdrawals:
(i) no later than 2:00 p.m. New York City time on each P&I Advance
Date, to remit to the Paying Agent for deposit in the Lower-Tier
Distribution Account and the Excess Interest Distribution Account the
amounts required to be remitted pursuant to the first paragraph of Section
3.04(b) and Section 3.04(c) or that may be applied to make P&I Advances
pursuant to Section 4.03(a);
(ii) to pay (A) itself unpaid Servicing Fees in respect of each
Mortgage Loan, Companion Loan, Specially Serviced Mortgage Loan and REO
Loan as applicable, the Servicer's rights to payment of Servicing Fees
pursuant to this clause (ii)(A) with respect to any Mortgage Loan,
Companion Loan, Specially Serviced Mortgage Loan or REO Loan, as
applicable, being limited to amounts received on or in respect of such
Mortgage Loan or Companion Loan (whether in the form of payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance and Condemnation Proceeds), that are allocable as recovery of
interest thereon; (B) to pay the Special Servicer any unpaid Special
Servicing Fees, Liquidation Fees and Workout Fees in respect of each
Specially Serviced Mortgage Loan or REO Loan, as applicable, and any fees
incurred by the Special Servicer in connection with performing any
inspections pursuant to Section 3.12(a), remaining unpaid first, out of
related REO Revenues, Liquidation Proceeds and Insurance and Condemnation
Proceeds, and then out of general collections on the Mortgage Loans and
REO Properties and (C) to remit to the Companion Paying Agent for deposit
in the Companion Distribution Account the amounts required to be so
deposited pursuant to the second paragraph of Section 3.04(b);
(iii) to reimburse the Trustee, and itself, as applicable (in that
order), for xxxxxxxxxxxx X&X Advances, the Servicer's or the Trustee's
right to reimbursement pursuant to this clause (iii) being limited to
amounts received which represent Late Collections of interest (net of the
related Servicing Fees, and with respect to the Forum Shops Mortgage Loan,
Forum Shops Primary Servicing Fees) on and principal of the particular
Mortgage Loans and REO Loans with respect to which such P&I Advances were
made; provided, however, that if such P&I Advance 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 the Mortgage Loans and REO Properties on
deposit in the Certificate Account from time to time that represent
collections or recoveries of principal to the extent provided in clause
(v) below (to be allocated between the Loan Groups as set forth in the
last paragraph of Section 3.05(a)); or, in the circumstances specified in
Section 3.19(d), from general collections;
(iv) to reimburse the Trustee, itself and the Special Servicer, as
applicable (in that order), for unreimbursed Servicing Advances, the
Servicer's or the Trustee's respective rights to receive payment pursuant
to this clause (iv) with respect to any Mortgage Loan (other than the
Forum Shops Mortgage Loan), Companion Loan or REO Property being limited
to, as applicable, related payments, Liquidation Proceeds, Insurance and
Condemnation Proceeds and REO Revenues; (provided that, in case of such
reimbursement relating to an AB Mortgage Loan, such reimbursements shall
be made first, from amounts collected on the related Companion Loan and
then from the related Mortgage Loan in accordance with the terms of the
related Intercreditor Agreement); 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 the Mortgage Loans
and REO Properties on deposit in the Certificate Account from time to time
that represent collections or recoveries of principal to the extent
provided in clause (v) below (to be allocated between the Loan Groups as
set forth in the last paragraph of Section 3.05 (a)) or, in the
circumstances specified in Section 3.19(d), from general collections;
(v) to reimburse the Trustee, itself and the Special Servicer, as
applicable (in that order), (A) for Nonrecoverable Advances first, out of
REO Revenues, Liquidation Proceeds and Insurance and Condemnation Proceeds
received on the related Mortgage Loan and the Companion Loan, if
applicable, then, out of the principal portion of general collections on
the Mortgage Loans and REO Properties (to be allocated between the Loan
Groups as set forth in the last paragraph of the Section 3.05(a)), then,
to the extent the principal portion of general collections is insufficient
and with respect to such excess only, subject to any exercise of the sole
option to defer reimbursement thereof pursuant to Section 3.19(d), out of
other collections on the Mortgage Loans and REO Properties and, (B) with
respect to the Workout-Delayed Reimbursement Amounts, out of the principal
portion of the general collections on the Mortgage Loans and REO
Properties (to be allocated between the Loan Groups as set forth in the
last paragraph of Section 3.05(a)), net of such amounts being reimbursed
pursuant to (A) above (provided that, in case of such reimbursement
relating to an AB Mortgage Loan, such reimbursements shall be made first,
from amounts collected on the related Companion Loan and then from the
related Mortgage Loan in accordance with the terms of the related
Intercreditor Agreement) or to pay itself, with respect to any Mortgage
Loan and the Companion Loans, if applicable, or REO Property any related
earned Servicing Fee that remained unpaid in accordance with clause (ii)
above following a Final Recovery Determination made with respect to such
Mortgage Loan or REO Property and the deposit into the Certificate Account
of all amounts received in connection therewith;
(vi) at such time as it reimburses the Trustee, and itself, as
applicable (in that order), for (a) any xxxxxxxxxxxx X&X Advance
(including any such P&I Advance that constitutes a Workout-Delayed
Reimbursement Amount) pursuant to clause (iii) above, to pay itself or the
Trustee, as applicable, any interest accrued and payable thereon in
accordance with Sections 4.03(d) and 3.11(c), (b) any unreimbursed
Servicing Advances (including any such Servicing Advance that constitutes
a Workout-Delayed Reimbursement Amount) pursuant to clause (iv) above, to
pay itself, the Special Servicer and/or the Trustee, as the case may be,
any interest accrued and payable thereon in accordance with Sections
3.03(d) and 3.11(c) or (c) any Nonrecoverable Advances pursuant to clause
(v) above, to pay itself, the Special Servicer and/or the Trustee, as the
case may be, any interest accrued and payable thereon;
(vii) to reimburse itself, the Special Servicer, the Depositor or
the Trustee, as the case may be, for any unreimbursed expenses reasonably
incurred by such Person in respect of any Breach or Defect giving rise to
a repurchase or substitution obligation of the applicable Mortgage Loan
Seller under Section 6 of the applicable Mortgage Loan Purchase Agreement,
including, without limitation, any expenses arising out of the enforcement
of the repurchase or substitution obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan or Companion Loan being limited to that portion of the Purchase Price
or Substitution Shortfall Amount paid with respect to such Mortgage Loan
or Companion Loan that represents such expense in accordance with clause
(iv) or (v) of the definition of Purchase Price; provided that, in case of
such reimbursement relating to an AB Mortgage Loan, such reimbursements
shall be made first, from amounts collected on the related Companion Loan
and then from the related Mortgage Loan in accordance with the terms of
the related Intercreditor Agreement;
(viii) in accordance with Section 2.03(e), to reimburse itself or
the Special Servicer, as the case may be, first, out of Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties for any unreimbursed
expense reasonably incurred by such Person in connection with the
enforcement of the applicable Mortgage Loan Seller's obligations under
Section 6 of the applicable Mortgage Loan Purchase Agreement, but only to
the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise; provided that, in case of such reimbursement
relating to an AB Mortgage Loan, such reimbursements shall be made first,
from amounts collected on the related Companion Loan and then from the
related Mortgage Loan in accordance with the terms of the related
Intercreditor Agreement;
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties; provided that, in
case of such reimbursement relating to an AB Mortgage Loan, such
reimbursements shall be made first, from amounts collected on the related
Companion Loan and then from the related Mortgage Loan in accordance with
the terms of the related Intercreditor Agreement;
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) (A) interest and investment income
earned in respect of amounts relating to the Trust Fund held in the
Certificate Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to the Certificate Account for
the period from the prior P&I Advance Date to the P&I Advance Date related
to such Distribution Date) and (B) Penalty Charges on Mortgage Loans
(other than Specially Serviced Mortgage Loans), but only to the extent
collected from the related Mortgagor and to the extent that all amounts
then due and payable with respect to the related Mortgage Loan have been
paid and are not needed to pay interest on related Advances or related
costs and expenses incurred by the Trust Fund (other than Special
Servicing Fees, but including Workout Fees and Liquidation Fees with
respect to each Mortgage Loan) in accordance with Section 3.11(c); and (b)
to pay the Special Servicer, as additional servicing compensation in
accordance with the second paragraph of Section 3.11(b), Penalty Charges
on Specially Serviced Mortgage Loans (but only to the extent collected
from the related Mortgagor and to the extent that all amounts then due and
payable with respect to the related Specially Serviced Mortgage Loan have
been paid and are not needed to pay interest on related Advances or
related costs and expenses incurred by the Trust Fund in accordance with
Section 3.11(c));
(xi) to recoup any amounts deposited in the Certificate Account in
error;
(xii) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, any amounts payable to any such Person
pursuant to Section 6.03(a) or 6.03(b);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a), 3.20(d) and
10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any
Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with an amendment to this Agreement requested by the Trustee or
the Servicer, which amendment is in furtherance of the rights and
interests of Certificateholders and (c) the cost of obtaining the REO
Extension contemplated by Section 3.16(a);
(xiv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC or any of their assets or
transactions, together with all incidental costs and expenses, to the
extent that none of the Servicer, the Special Servicer, the Paying Agent
or the Trustee is liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Paying Agent out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay itself, the Special Servicer or a Mortgage Loan Seller,
as the case may be, with respect to each Mortgage Loan, if any, previously
purchased by such Person pursuant to this Agreement, all amounts received
thereon subsequent to the date of purchase relating to periods after the
date of purchase; or, in the case of the substitution for a Mortgage Loan
by a Mortgage Loan Seller pursuant to Section 2.03(b), to pay such
Mortgage Loan Seller with respect to the replaced Mortgage Loan all
amounts received thereon subsequent to the date of substitution in
accordance with the last sentence of the first paragraph of Section
2.03(b);
(xvii) to remit to the Paying Agent for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest
Reserve Account pursuant to Section 3.25;
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01; and
(xix) to remit to the Companion Paying Agent for deposit into the
Companion Distribution Account the amounts required to be deposited
pursuant to Section 3.04(b).
The Servicer shall also be entitled to make withdrawals from time to
time, from the Certificate Account of amounts necessary for the payments or
reimbursement of amounts required to be paid to the Forum Shops Master Servicer,
Forum Shops Special Servicer, Forum Shops Trustee or Forum Shops Paying Agent by
the holder of the Forum Shops Mortgage Loan pursuant to the Forum Shops
Intercreditor Agreement.
The Servicer shall keep and maintain separate accounting records, on
a loan-by-loan and property-by-property basis when appropriate, for the purpose
of justifying any withdrawal from the Certificate Account.
The Servicer shall pay to the Special Servicer or the Paying Agent
from the Certificate Account amounts permitted to be paid to it therefrom
monthly upon receipt of a certificate of a Responsible Officer of the Special
Servicer or the Paying Agent describing the item and amount to which the Special
Servicer or the Paying Agent is entitled. The Servicer may rely conclusively on
any such certificate and shall have no duty to re-calculate the amounts stated
therein. The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Mortgage Loan and REO Loan, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account, as applicable.
To the extent a Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount with respect to a Mortgage Loan is required to be
reimbursed from the principal portion of the general collections on the Mortgage
Loans pursuant to clauses (iii), (iv) or (v) of this Section 3.05(a), such
reimbursement shall be made first, from the principal collections available on
the Mortgage Loans included in the same Loan Group as such Mortgage Loan and if
the principal collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the principal collections available in the
other Loan Group (after giving effect to any reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts related to such other Loan
Group). To the extent a Nonrecoverable Advance with respect to a Mortgage Loan
is required to be reimbursed from the interest portion of the general
collections on the Mortgage Loans pursuant to clauses (iii), (iv) or (v) of this
Section 3.05(a), such reimbursement shall be made first, from the interest
collections available on the Mortgage Loans included in the same Loan Group as
such Mortgage Loan and if the interest collections in such Loan Group are not
sufficient to make such reimbursement in full, then from the interest
collections available in the other Loan Group (after giving effect to any
reimbursement of Nonrecoverable Advances related to such other Loan Group);
provided, however, that this provision shall not result in any change in the
interest distributions in the manner required under Section 4.01(a)(i) of this
Agreement.
(b) The Paying Agent on behalf of the Trustee may, from time to
time, make withdrawals from the Lower-Tier Distribution Account for any of the
following purposes:
(i) to make deposits of the Lower-Tier Regular Distribution Amount
pursuant to Section 4.01(b) and the amount of any Yield Maintenance
Charges distributable pursuant to Section 4.01(d) in the Upper-Tier
Distribution Account and to make distributions on the Class LR
Certificates pursuant to Section 4.01(b);
(ii) to pay to the Trustee, the Paying Agent or any of their
respective directors, officers, employees and agents, as the case may be,
any amounts payable or reimbursable to any such Person pursuant to Section
8.05(b);
(iii) to pay the Trustee and the Paying Agent their respective
portions of the Trustee Fee as contemplated by Section 8.05(a) hereof with
respect to the Mortgage Loans;
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee or the Paying Agent (A) as provided in clause (v) of the
definition of "Disqualified Organization," (B) as contemplated by Section
3.20(d), 8.02(ii) and 10.01(f), or (C) as contemplated by Section 11.01(a)
or 11.01(c) in connection with any amendment to this Agreement requested
by the Trustee or the Paying Agent which amendment is in furtherance of
the rights and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed on the
Lower-Tier REMIC, the Upper-Tier REMIC or on the assets or transactions of
either such REMIC, together with all incidental costs and expenses, to the
extent none of the Trustee, the Paying Agent, the REMIC Administrator, the
Servicer or the Special Servicer is liable therefor pursuant to Section
10.01(g); provided that, to the extent any of the Paying Agent, the REMIC
Administrator, the Servicer or the Special Servicer is liable therefor
pursuant to Section 10.01(g), such payment shall not prejudice the rights
of the Trustee on behalf of either the Lower-Tier REMIC or the Upper-Tier
REMIC to collect such amounts;
(vi) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(f);
(vii) to pay to the Servicer any amounts deposited by the Servicer
in the Distribution Account not required to be deposited therein; and
(viii) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Paying Agent shall, on any Distribution Date, make
withdrawals from the Excess Interest Distribution Account to the extent required
to make the distributions of Excess Interest required by Section 4.01(j).
(d) The Paying Agent on behalf of the Trustee may make withdrawals
from the Upper-Tier Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class LR Certificates) on each Distribution Date pursuant to
Section 4.01 or 9.01, as applicable; and
(ii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(e) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in the Certificate Account and the
Lower-Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee and the Paying
Agent Fee listed in Section 3.05(b)(iii), then the Trustee Fee and the Paying
Agent Fee shall be paid in full prior to the payment of any Servicing Fees
payable under Section 3.05(a)(ii) and (ii) if amounts on deposit in the
Certificate Account are not sufficient to reimburse the full amount of Advances
and interest thereon listed in Sections 3.05(a)(iii), (iv), (v) and (vi), then
reimbursements shall be paid first to the Trustee and second to the Servicer.
(f) The Companion Paying Agent may, from time to time make
withdrawals from the Companion Distribution Account to make distributions on
each Distribution Date pursuant to Section 4.01(k).
Section 3.06 Investment of Funds in the Certificate Account and the
REO Account.
(a) The Servicer may direct any depository institution maintaining
the Certificate Account or any Servicing Account (for purposes of this Section
3.06, an "Investment Account") and the Special Servicer may direct any
depository institution maintaining the 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 only in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, (i) no later than the Business Day immediately
preceding the next succeeding date on which such funds are required to be
withdrawn from such account pursuant to this Agreement, if a Person other than
the depository institution maintaining such account is the obligor thereon and
(ii) no later than the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if the depository institution
maintaining such account is the obligor thereon. All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment of funds in
an Investment Account shall be made in the name of the Trustee (in its capacity
as such). The Servicer (in the case of the Certificate Account) or the Special
Servicer (in the case of the REO Account or any Servicing Account maintained by
or for the Special Servicer), on behalf of the Trustee, shall maintain
continuous physical possession of any Permitted Investment of amounts in the
Certificate Account or REO Account that is either (i) a "certificated security,"
as such term is defined in the UCC (such that the Trustee shall have control
pursuant to Section 8-106 of the UCC) or (ii) other property in which a secured
party may perfect its security interest by physical possession under the UCC or
any other applicable law. Funds on deposit in the Distribution Accounts, if any,
shall remain uninvested. In the case of any Permitted Investment held in the
form of a "security entitlement" (within the meaning of Section 8-102(a)(17) of
the UCC), the Servicer or the Special Servicer, as applicable, shall take or
cause to be taken such action as the Trustee deems reasonably necessary to cause
the Trustee to have control over such security entitlement. In the event amounts
on deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Servicer (in the case of the Certificate
Account or any Servicing Account) or the Special Servicer (in the case of the
REO Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Servicer, the Special Servicer or the Trustee, as the
case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Interest and investment income realized on funds deposited in
the Certificate Account or any Servicing Account, to the extent of the Net
Investment Earnings, if any, with respect to such account for the period from
the prior P&I Advance Date to the P&I Advance Date related to such Distribution
Date, shall be for the sole and exclusive benefit of the Servicer to the extent
(with respect to Servicing Accounts) not required to be paid to the related
Mortgagor and shall be subject to its withdrawal, or withdrawal at its
direction, in accordance with Sections 3.03 or Section 3.05(a), as the case may
be. Interest and investment income realized on funds deposited in the REO
Account, to the extent of the Net Investment Earnings, if any, with respect to
such account for each period from any Distribution Date to the immediately
succeeding P&I Advance Date, shall be for the sole and exclusive benefit of the
Special Servicer and shall be subject to its withdrawal in accordance with
Section 3.16(c). In the event that any loss shall be incurred in respect of any
Permitted Investment (as to which the Servicer or Special Servicer, as
applicable, would have been entitled to any related Net Investment Earnings
hereunder) directed to be made by the Servicer or Special Servicer, as
applicable, and on deposit in any of the Certificate Account, any Servicing
Account or the REO Account, the Servicer (in the case of the Certificate Account
or any Servicing Account) and the Special Servicer (in the case of the REO
Account) shall deposit therein, no later than the P&I Advance Date, without
right of reimbursement, the amount of Net Investment Loss, if any, with respect
to such account for the period from the prior P&I Advance Date to the P&I
Advance Date related to such Distribution Date, provided that neither the
Servicer nor the Special Servicer shall be required to deposit any loss on an
investment of funds in an Investment Account if such loss is incurred solely as
a result of the insolvency of the federal or state chartered depository
institution or trust company that holds such Investment Account, so long as such
depository institution or trust company satisfied the qualifications set forth
in the definition of Eligible Account at the time such investment was made.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Servicer may and, upon the request of Holders of Certificates
entitled to a majority of the Voting Rights allocated to any Class shall, take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings.
Section 3.07 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Servicer shall use its efforts consistent with the Servicing
Standards to cause the Mortgagor to maintain, to the extent required by the
terms of the related Mortgage Note, or if the Mortgagor does not so maintain,
shall itself maintain, for each Mortgage Loan (other than the Forum Shops
Mortgage Loan) all insurance coverage as is required under the related Mortgage,
except to the extent that the failure of the related Mortgagor to do so is an
Acceptable Insurance Default; provided, however, that if any Mortgage permits
the holder thereof to dictate to the Mortgagor the insurance coverage to be
maintained on such Mortgaged Property, the Servicer shall impose such insurance
requirements as are consistent with the Servicing Standards, provided that, with
respect to the immediately preceding proviso, the Servicer will be obligated to
maintain insurance against property damage resulting from terrorist or similar
acts unless the Mortgagor's failure is an Acceptable Insurance Default; provided
that the Servicer shall not itself be required to maintain any insurance
coverage with respect to a Mortgaged Property that is not available at
commercially reasonable rates or as to which the Trustee, as mortgagee, does not
have an insurable interest. Subject to Section 3.17(a), the Special Servicer
shall maintain for each REO Property no less insurance coverage than was
previously required of the Mortgagor under the related Mortgage Loan, to the
extent obtainable at commercially reasonable rates. All Insurance Policies
maintained by the Servicer or the Special Servicer shall (i) contain a
"standard" mortgagee clause, with loss payable to the Servicer on behalf of the
Trustee (in the case of insurance maintained in respect of Mortgage Loans other
than REO Properties), (ii) be in the name of the Trustee (in the case of
insurance maintained in respect of REO Properties), (iii) include coverage in an
amount not less than the lesser of (x) the full replacement cost of the
improvements securing Mortgaged Property or the REO Property, as applicable, or
(y) the outstanding principal balance owing on the related Mortgage Loan or REO
Loan, as applicable, and in any event, the amount necessary to avoid the
operation of any co-insurance provisions, (iv) include a replacement cost
endorsement providing no deduction for depreciation (unless such endorsement is
not permitted under the related Mortgage Loan documents), (v) be noncancellable
without 30 days prior written notice to the insured party (except in the case of
nonpayment, in which case such policy shall not be cancelled without 10 days
prior notice) and (vi) be issued by a Qualified Insurer authorized under
applicable law to issue such Insurance Policies. Any amounts collected by the
Servicer or the Special Servicer under any such Insurance Policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Mortgagor, in
each case in accordance with the Servicing Standards and the provisions of the
related Mortgage Loan) shall be deposited in the Certificate Account, subject to
withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in
maintaining any such Insurance Policies in respect of Mortgage Loans (other than
REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall
be advanced by the Servicer as a Servicing Advance and will be charged to the
related Mortgagor and (ii) shall not, for purposes of calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
or Companion Loan so permit. Any cost incurred by the Special Servicer in
maintaining any such Insurance Policies with respect to REO Properties shall be
an expense of the Trust payable out of the related REO Account pursuant to
Section 3.16(c) or, if the amount on deposit therein is insufficient therefor,
advanced by the Servicer as a Servicing Advance.
Notwithstanding the foregoing, with respect to the Mortgage Loans
which either (x) require the Mortgagor to maintain "all risk" property insurance
(and do not expressly permit an exclusion for terrorism) or (y) contain
provisions generally requiring the applicable Mortgagor to maintain insurance in
types and against such risks as the holder of such Mortgage Loan reasonably
requires from time to time in order to protect its interests, the Servicer will
be required to (A) actively monitor whether the insurance policies for the
related Mortgaged Property contain Additional Exclusions, (B) request the
Mortgagor to either purchase insurance against the risks specified in the
Additional Exclusions or provide an explanation as to its reasons for failing to
purchase such insurance and (C) notify the Special Servicer if any insurance
policy contains Additional Exclusions or if any Mortgagor fails to purchase the
insurance requested to be purchased by the Servicer pursuant to clause (B)
above. If the Special Servicer determines that such failure is not an Acceptable
Insurance Default, the Special Servicer shall notify the Servicer and the
Servicer shall cause such insurance to be maintained. Furthermore, the Special
Servicer shall inform the Rating Agencies as to such conclusions for those
Mortgage Loans that have one of the ten (10) highest outstanding Stated
Principal Balances of all of the Mortgage Loans then included in the Trust.
During the period that the Special Servicer is evaluating the availability of
such insurance, neither the Servicer nor the Special Servicer will be liable for
any loss related to the Servicer's failure to require the Mortgagor to maintain
such insurance and will not be in default of its obligations as a result of such
failure.
(b) (i) If the Servicer or the Special Servicer shall obtain and
maintain a blanket Insurance Policy with a Qualified Insurer insuring against
fire and hazard losses on all of the Mortgage Loans or REO Properties, as the
case may be, required to be serviced and administered hereunder, then, to the
extent such Insurance Policy provides protection equivalent to the individual
policies otherwise required, the Servicer or the Special Servicer shall
conclusively be deemed to have satisfied its obligation to cause fire and hazard
insurance to be maintained on the related Mortgaged Properties or REO
Properties. Such Insurance Policy may contain a deductible clause, in which case
the Servicer or the Special Servicer shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property a fire and hazard
Insurance Policy complying with the requirements of Section 3.07(a), and there
shall have been one or more losses which would have been covered by such
Insurance Policy, promptly deposit into the Certificate Account from its own
funds the amount of such loss or losses that would have been covered under the
individual policy but are not covered under the blanket Insurance Policy because
of such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan or in the
absence of such deductible limitation, the deductible limitation which is
consistent with the Servicing Standards. In connection with its activities as
administrator and Servicer of the Mortgage Loans, the Servicer agrees to prepare
and present, on behalf of itself, the Trustee and Certificateholders, claims
under any such blanket Insurance Policy in a timely fashion in accordance with
the terms of such policy. The Special Servicer, to the extent consistent with
the Servicing Standards, may maintain, earthquake insurance on REO Properties,
provided coverage is available at commercially reasonable rates, the cost of
which shall be a Servicing Advance.
(ii) If the Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single
interest or force-placed insurance policy with a Qualified Insurer naming
the Servicer or the Special Servicer on behalf of the Trustee as the loss
payee, then to the extent such Insurance Policy provides protection
equivalent to the individual policies otherwise required, the Servicer or
the Special Servicer shall conclusively be deemed to have satisfied its
obligation to cause such insurance to be maintained on the related
Mortgage Properties and REO Properties. In the event the Servicer or the
Special Servicer shall cause any Mortgaged Property or REO Property to be
covered by such master single interest or force-placed insurance policy,
the incremental costs of such insurance applicable to such Mortgaged
Property or REO Property (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgaged Property or REO
Property is covered thereby) shall be paid by the Servicer as a Servicing
Advance. Such master single interest or force-placed policy may contain a
deductible clause, in which case the Servicer or the Special Servicer
shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy otherwise complying
with the provisions of Section 3.07(a), and there shall have been one or
more losses which would have been covered by such policy had it been
maintained, deposit into the Certificate Account from its own funds the
amount not otherwise payable under the master single or force-placed
interest policy because of such deductible clause, to the extent that any
such deductible exceeds the deductible limitation that pertained to the
related Mortgage Loan or, in the absence of any such deductible
limitation, the deductible limitation which is consistent with the
Servicing Standards.
(c) Each of the Servicer and the Special Servicer shall obtain and
maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
Insurance Policy with a Qualified Insurer covering the Servicer's and the
Special Servicer's, as applicable, officers and employees acting on behalf of
the Servicer and the Special Servicer in connection with its activities under
this Agreement. Notwithstanding the foregoing, so long as the long term debt or
the deposit obligations or claims-paying ability of the Servicer or the Special
Servicer, as applicable, is rated at xxxxx "X0" by Xxxxx'x and "A" by S&P, the
Servicer or the Special Servicer, as applicable, shall be allowed to provide
self-insurance with respect to a fidelity bond and an Errors and Omissions
Insurance Policy. The amount of coverage shall be at least equal to the coverage
that would be required by Xxxxxx Mae or Xxxxxxx Mac, whichever is greater, with
respect to the Servicer or the Special Servicer if the Servicer or the Special
Servicer, as applicable, were servicing and administering the Mortgage Loans or
Specially Serviced Mortgage Loans, as applicable, for Xxxxxx Mae or Xxxxxxx Mac.
Coverage of the Servicer or the Special Servicer under a policy or bond obtained
by an Affiliate of the Servicer or the Special Servicer and providing the
coverage required by this Section 3.07(c) shall satisfy the requirements of this
Section 3.07(c). The Special Servicer and the Servicer will promptly report in
writing to the Trustee any material changes that may occur in their respective
fidelity bonds, if any, and/or their respective errors and omissions Insurance
Policies, as the case may be, and will furnish to the Trustee copies of all
binders and policies or certificates evidencing that such bonds, if any, and
insurance policies are in full force and effect. The Servicer and the Special
Servicer shall each cause the Trustee to be an additional loss payee on any
policy currently in place or procured pursuant to the requirements of this
Section 3.07(c).
(d) At the time the Servicer determines in accordance with the
Servicing Standards that any Mortgaged Property shall be in a federally
designated special flood hazard area (and such flood insurance has been made
available), the Servicer will use efforts consistent with the Servicing
Standards to cause the related Mortgagor (in accordance with applicable law and
the terms of the Mortgage Loan documents) to maintain, and, if the related
Mortgagor shall default in its obligation to so maintain, shall itself maintain
to the extent available at commercially reasonable rates (as determined by the
Servicer in accordance with the Servicing Standards and to the extent the
Trustee, as mortgagee, has an insurable interest therein), flood insurance in
respect thereof, but only to the extent the related Mortgage Loan permits the
mortgagee to require such coverage and the maintenance of such coverage is
consistent with the Servicing Standards. Such flood insurance shall be in an
amount equal to the lesser of (i) the unpaid principal balance of the related
Mortgage Loan, and (ii) the maximum amount of insurance which is available under
the National Flood Insurance Act of 1968, as amended. If the cost of any
insurance described above is not borne by the Mortgagor, the Servicer shall
promptly make a Servicing Advance for such costs.
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Servicer as a Servicing Advance.
Section 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) As to each Mortgage Loan (other than the Forum Shops Mortgage
Loan) which contains a provision in the nature of a "due-on-sale" clause, which
by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other transfer
of an interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other
transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Special Servicer or, with respect to all Non-Specially Serviced Mortgage Loans,
the Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or waive its right to exercise provided that, (i) with respect to all
Non-Specially Serviced Mortgage Loans, the Servicer has obtained the prior
written consent of the Special Servicer, which consent shall be deemed given 15
Business Days after receipt by the Special Servicer from the Servicer of the
Servicer's analysis and recommendation with respect to such waiver together with
such other information reasonably required by the Special Servicer, (ii) with
respect to all Specially Serviced Mortgage Loans, and Non-Specially Serviced
Mortgage Loans having a Stated Principal Balance greater than or equal to
$2,500,000, the Special Servicer has obtained the prior written consent of the
Directing Certificateholder, which consent shall be deemed given 10 Business
Days after receipt by the Directing Certificateholder from the Special Servicer
of the Servicer's analysis and recommendation with respect to such waiver
together with such other information reasonably required by the Directing
Certificateholder and (iii) it has obtained confirmation from the Rating
Agencies pursuant to Section 3.08(e), if required) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon or (y) to
withhold its consent to any such sale or transfer, in a manner consistent with
the Servicing Standards.
(b) As to each Mortgage Loan (other than the Forum Shops Mortgage
Loan) which contains a provision in the nature of a "due-on-encumbrance" clause,
which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Servicer shall provide notice to the Special Servicer of any request for a
waiver thereof, and the Special Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise provided
that the Special Servicer has, (i) (a) with respect to all Specially Serviced
Mortgage Loans and (b) all Non-Specially Serviced Mortgage Loans having a Stated
Principal Balance greater than or equal to $2,500,000, obtained the consent of
the Directing Certificateholder, and (ii) obtained confirmation from the Rating
Agencies pursuant to Section 3.08(e), if required) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon or (y) to
withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standards.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(a), (b)
and (f), neither the Servicer nor the Special Servicer shall agree to modify,
waive or amend any term of any Mortgage Loan in connection with the taking of,
or the failure to take, any action pursuant to this Section 3.08.
(e) (i) Notwithstanding the foregoing, the Servicer or the Special
Servicer, as applicable, shall not waive any rights under a "due-on-encumbrance"
clause with respect to any Mortgage Loan which (together with any Mortgaged
Loans cross-collateralized with such Mortgage Loans) represents (a) one of the
top ten Stated Principal Balances as of the date of the encumbrance, or if the
applicable Mortgage Loan represents 2% or more of the Cut-off Date Principal
Balance of all Mortgage Loans and (b) a Mortgage Loan with a LTV Ratio greater
than or equal to 85% and a Debt Service Coverage Ratio less than or equal to
1.20x, unless it obtains from each Rating Agency a written confirmation that
such waiver will not cause a downgrading, qualification or withdrawal of the
then current rating assigned to any of the Certificates. The Special Servicer
shall provide copies of any such waivers to the Servicer and each Rating Agency
with respect to each Mortgage Loan. To the extent any fee charged by each Rating
Agency in connection with rendering such written confirmation is not paid by the
related Mortgagor, such fee is to be an expense of the Trust; provided that the
Servicer or Special Servicer, as applicable, shall use its reasonable best
efforts to collect such fee from the Mortgagor to the extent permitted under the
related Mortgage Loan documents.
(ii) Notwithstanding the foregoing, the Servicer or the Special
Servicer, as applicable, shall not waive any rights under a "due-on-sale"
clause with respect to any of the Mortgage Loans unless it obtains from
each Rating Agency a written confirmation that such waiver would not cause
a downgrading, qualification or withdrawal of the then current rating
assigned to any of the Certificates; provided, however, that (x) no such
confirmation shall be required for any Mortgage Loan which (together with
any Mortgaged Loans cross-collateralized with such Mortgage Loans) is a
Mortgage Loan with a Cut-off Date Principal Balance less than $20,000,000,
or if the related Mortgage Loan represents less than 5% of the Cut-off
Date Principal Balance of all Mortgage Loans. The Servicer shall use its
reasonable efforts to collect from the Mortgagor all fees charged by any
Rating Agency and, to the extent the Mortgagor is required to pay such fee
under the terms of the related Mortgage Loan documents, the Servicer shall
not waive such obligation. To the extent any fee charged by each Rating
Agency in connection with rendering such written confirmation is not paid
by the related Mortgagor, such fee is to be an expense of the Trust;
provided that the Servicer or Special Servicer, as applicable, shall use
its reasonable best efforts to collect such fee from the Mortgagor to the
extent permitted under the related Mortgage Loan documents. The Special
Servicer shall provide copies of any such waivers to the Servicer and each
Rating Agency with respect to each Mortgage Loan.
(f) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20, the Servicer may, without any Rating Agency confirmation as
provided in clause (e) above or any Directing Certificateholder approval
(provided the Servicer delivers notice thereof to the Special Servicer and
Directing Certificateholder), (i) grant waivers of non-material covenant
defaults (other than financial covenants), including late financial statements;
(ii) grant releases of non-material, non-income producing parcels of a Mortgaged
Property that do not materially affect the use or value of the Mortgaged
Property or the ability of the related Mortgagor to pay amounts due in respect
of the Mortgage Loan as and when due; (iii) approve or consent to grants of
easements or right of way for utilities, access, parking, public improvements or
another purpose or subordinations of the lien of Mortgage Loans to easements
that do not materially affect the use or value of a Mortgaged Property or a
Mortgagor's ability to make any payments with respect to the related Mortgage
Loan; (iv) grant other routine approvals, including the granting of
subordination, non-disturbance and attornment agreements and leasing consents
that affect less than the lesser of (a) 30% of the net rentable area of the
Mortgaged Property, or (b) 30,000 square feet; (v) consents to actions related
to condemnation of non-material, non-income producing parcels of the Mortgaged
Property that do not materially affect the use or value of the Mortgaged
Property or the ability of the related Mortgagor to pay amounts due in respect
of the Mortgage Loan as and when due; (vi) consents to a change in property
management relating to any Mortgage Loan with respect to Mortgage Loans with an
outstanding principal balance of less than $10,000,000; and (vii) approve of
annual operating budgets; provided that any such modification, waiver or
amendment (w) would not in any way affect a payment term of the Certificates,
(x) would not constitute a "significant modification" of such Mortgage Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise
cause either of the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a
REMIC or cause the Grantor Trust to fail to qualify as a "grantor trust" under
subpart E of Part 1 of subchapter J of the Code, (y) agreeing to such
modification, waiver or amendment would be consistent with the Servicing
Standards, and (z) agreeing to such modification, waiver or amendment shall not
violate the terms, provisions or limitations of this Agreement or any other
document contemplated hereby.
(g) Notwithstanding any other provision of this Agreement, the
Servicer may not waive its rights or grant its consent under any "due-on-sale"
or "due-on-encumbrance" clause without the consent of the Special Servicer and
the Special Servicer may not waive its rights or grant its consent under any
"due-on-sale" or "due-on-encumbrance" clause relating to a Non-Specially
Serviced Mortgage Loan having a Stated Principal Balance greater than or equal
to $2,500,000 or relating to any Specially Serviced Mortgage Loan without the
consent of the Directing Certificateholder. The Directing Certificateholder
shall have 10 Business Days after receipt of notice together with the
recommendation and analysis with respect to such waiver from the Special
Servicer of a proposed waiver or consent under any "due-on-sale" or
"due-on-encumbrance" clause in which to grant or withhold its consent (provided
that if the Special Servicer fails to receive a response to such notice from the
Directing Certificateholder in writing within such period, then the Directing
Certificateholder shall be deemed to have consented to such proposed waiver or
consent).
Section 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to subsections (b) through
(d) of this Section 3.09, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such Mortgage
Loans (other than the Forum Shops Mortgage Loan) or the Companion Loans, as come
into and continue in default as to which no satisfactory arrangements can be
made for collection of delinquent payments, and which are not released from the
Trust Fund pursuant to any other provision hereof. The foregoing is subject to
the provision that, in any case in which a Mortgaged Property shall have
suffered damage from an Uninsured Cause, the Servicer or Special Servicer shall
not be required to make a Servicing Advance and expend funds toward the
restoration of such property unless the Special Servicer has determined in its
reasonable discretion that such restoration will increase the net proceeds of
liquidation of such Mortgaged Property to Certificateholders after reimbursement
to the Servicer for such Servicing Advance, and the Servicer or Special Servicer
has determined that such Servicing Advance together with accrued and unpaid
interest thereon will be recoverable by the Servicer or Special Servicer out of
the proceeds of liquidation of such Mortgaged Property, as contemplated in
Section 3.05(a)(iv). The Special Servicer shall be responsible for all other
costs and expenses incurred by it in any such proceedings (such costs and
expenses to be advanced by the Servicer or upon request of the Special Servicer,
to the Special Servicer), provided that, in each case, such cost or expense
would not, if incurred, constitute a Nonrecoverable Servicing Advance. Nothing
contained in this Section 3.09 shall be construed so as to require the Servicer
or the Special Servicer, on behalf of the Trust, to make a bid on any Mortgaged
Property at a foreclosure sale or similar proceeding that is in excess of the
fair market value of such property, as determined by the Servicer or the Special
Servicer in its reasonable judgment taking into account the factors described in
Section 3.18(b) and the results of any Appraisal obtained pursuant to the
following sentence, all such bids to be made in a manner consistent with the
Servicing Standards. If and when the Special Servicer or the Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a Defaulted Mortgage Loan or defaulted Companion
Loan, whether for purposes of bidding at foreclosure or otherwise, the Special
Servicer or the Servicer, as the case may be, is authorized to have an Appraisal
performed with respect to such property by an Independent MAI-designated
appraiser the cost of which shall be paid by the Servicer as a Servicing
Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incidental to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be paid by the Servicer as a Servicing Advance)
to the effect that the holding of such personal property by the Trust Fund
(to the extent not allocable to a Companion Loan) will not cause the
imposition of a tax on the Upper-Tier REMIC or the Lower-Tier REMIC under
the REMIC Provisions or cause the Upper-Tier REMIC or the Lower-Tier REMIC
to fail to qualify as a REMIC at any time that any Uncertificated
Lower-Tier Interest or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Servicer shall, on behalf of the Trustee,
obtain title to a Mortgaged Property in lieu of foreclosure or otherwise, or
take any other action with respect to any Mortgaged Property, if, as a result of
any such action, the Trustee, on behalf of the Certificateholders, would be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law, unless (as evidenced by an Officer's Certificate to such
effect delivered to the Trustee) the Special Servicer has previously determined
in accordance with the Servicing Standards, based on an Environmental Assessment
of such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices in effect and obtained on behalf of the Mortgagee with respect to
the related Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Servicer as a Servicing Advance and the cost of any remedial, corrective or
other further action contemplated by clause (i) and/or clause (ii) of the
preceding sentence shall be paid by the Servicer as a Servicing Advance, unless
it is a Nonrecoverable Servicing Advance (in which case it shall be an expense
of the Trust Fund and may be withdrawn by the Servicer from the Certificate
Account at the direction of the Special Servicer); and if any such Environmental
Assessment so warrants, the Special Servicer shall, at the expense of the Trust
Fund, perform (except with respect to any Companion Loan and any related
Environmental Assessment ordered after the related AB Mortgage Loan has been
paid in full) such additional environmental testing as it deems necessary and
prudent to determine whether the conditions described in clauses (i) and (ii) of
the preceding sentence have been satisfied. With respect to Non-Specially
Serviced Mortgage Loans, the Servicer and, with respect to Specially Serviced
Mortgage Loans, the Special Servicer, shall review and be familiar with the
terms and conditions relating to enforcing claims and shall monitor the dates by
which any claim or action must be taken (including delivering any notices to the
insurer and using reasonable efforts to perform any actions required under such
policy) under each environmental insurance policy in effect and obtained on
behalf of the mortgagee to receive the maximum proceeds available under such
policy for the benefit of the Certificateholders and the Trustee (as holder of
the Uncertificated Lower-Tier Interests).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and (ii) there has been no
breach of any of the representations and warranties set forth in or required to
be made pursuant to Section 6 of each of the Mortgage Loan Purchase Agreements
for which the applicable Mortgage Loan Seller could be required to repurchase
such Defaulted Mortgage Loan pursuant to Section 6 of the applicable Mortgage
Loan Purchase Agreement, then the Special Servicer shall take such action as it
deems to be in the best economic interest of the Trust Fund (other than
proceeding to acquire title to the Mortgaged Property) and is hereby authorized
at such time as it deems appropriate to release such Mortgaged Property from the
lien of the related Mortgage, provided that, if such Mortgage Loan has a then
outstanding principal balance of greater than $1,000,000, then prior to the
release of the related Mortgaged Property from the lien of the related Mortgage,
(i) the Special Servicer shall have notified the Rating Agencies, the Trustee,
the Paying Agent, the Servicer and the Directing Certificateholder in writing of
its intention to so release such Mortgaged Property and the bases for such
intention, (ii) the Paying Agent shall have notified the Certificateholders in
writing of the Special Servicer's intention to so release such Mortgaged
Property, (iii) the Holders of Certificates entitled to a majority of the Voting
Rights shall have consented to such release within 30 days of the Paying Agent's
distributing such notice (failure to respond by the end of such 30-day period
being deemed consent) and (iv) the Special Servicer shall have received written
confirmation from each Rating Agency that such release will not cause the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates. To the extent any fee charged by each Rating Agency in
connection with rendering such written confirmation is not paid by the related
Mortgagor, such fee is to be an expense of the Trust; provided that the Servicer
or Special Servicer, as applicable, shall use its reasonable efforts to collect
such fee from the Mortgagor to the extent permitted under the related Mortgage
Loan documents.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Paying Agent, the Directing
Certificateholder, each Rating Agency and the Servicer monthly regarding any
actions taken by the Special Servicer with respect to any Mortgaged Property
securing a defaulted Mortgage Loan as to which the environmental testing
contemplated in subsection (c) above has revealed that either of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof has not been
satisfied, in each case until the earlier to occur of satisfaction of both such
conditions, repurchase of the related Mortgage Loan by the applicable Mortgage
Loan Seller or release of the lien of the related Mortgage on such Mortgaged
Property. The Paying Agent shall forward all such reports to the
Certificateholders upon request.
(f) The Special Servicer shall notify the Servicer of any abandoned
or foreclosed Mortgaged Properties (other than the Forum Shops Mortgaged
Property) which require reporting to the Internal Revenue Service and shall
provide the Servicer with all information regarding forgiveness of indebtedness
and required to be reported with respect to any Mortgage Loan which is abandoned
or foreclosed and the Servicer shall report to the Internal Revenue Service and
the related Mortgagor, in the manner required by applicable law, such
information and the Servicer shall report, via Form 1099C (or any successor
form), all forgiveness of indebtedness to the extent such information has been
provided to the Servicer by the Special Servicer. Upon request, the Servicer
shall deliver a copy of any such report to the Paying Agent and the Trustee.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan, defaulted Companion Loan or REO Property
and the basis thereof. Each Final Recovery Determination shall be evidenced by
an Officer's Certificate promptly delivered to the Trustee, the Paying Agent,
the Directing Certificateholder and the Servicer.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Servicer or the Special Servicer, as the case may be, of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer or Special Servicer, as the case may be, will immediately notify the
Trustee and request delivery of the related Mortgage File. Any such notice and
request shall be in the form of a Request for Release signed by a Servicing
Officer and shall include a statement to the effect that all amounts received or
to be received in connection with such payment that are required to be deposited
in the Certificate Account pursuant to Section 3.04(a) or remitted to the
Servicer to enable such deposit, have been or will be so deposited. Within seven
Business Days (or within such shorter period as release can reasonably be
accomplished if the Servicer notifies the Trustee of an exigency) of receipt of
such notice and request, the Trustee shall release, or cause any related
Custodian to release, the related Mortgage File to the Servicer or Special
Servicer, as the case may be. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Certificate Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan (including any related Companion Loan), the Servicer or the
Special Servicer shall deliver to the Trustee a Request for Release signed by a
Servicing Officer. Upon receipt of the foregoing, the Trustee shall deliver or
cause the related Custodian to deliver, the Mortgage File or any document
therein to the Servicer or the Special Servicer (or a designee), as the case may
be. Upon return of such Mortgage File or such document to the Trustee or the
related Custodian, or the delivery to the Trustee of a certificate of a
Servicing Officer of the Servicer or the Special Servicer, as the case may be,
stating that such Mortgage Loan was liquidated and that all amounts received or
to be received in connection with such liquidation which are required to be
deposited into the Certificate Account pursuant to Section 3.04(a) have been or
will be so deposited, or that such Mortgage Loan has become an REO Property, a
copy of the Request for Release shall be released by the Trustee to the Servicer
or the Special Servicer (or a designee), as the case may be, with the original
being released upon termination of the Trust.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note (including any note evidencing a related
Companion Loan) or Mortgage or to obtain a deficiency judgment, or to enforce
any other remedies or rights provided by the Mortgage Note or Mortgage or
otherwise available at law or in equity. The Special Servicer shall be
responsible for the preparation of all such documents and pleadings. When
submitted to the Trustee for signature, such documents or pleadings shall be
accompanied by a certificate of a Servicing Officer requesting that such
pleadings or documents be executed by the Trustee and certifying as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
(d) If, from time to time, pursuant to the terms of the Forum Shops
Intercreditor Agreement and the Forum Shops Pooling Agreement, and as
appropriate for enforcing the terms of the Forum Shops Mortgage Loan, the Forum
Shops Primary Servicer requests delivery to it of the original Mortgage Note for
the Forum Shops Mortgage Loan, then the Trustee shall release or cause the
release of such original Mortgage Note to the Forum Shops Primary Servicer or
its designee.
Section 3.11 Servicing Compensation.
(a) As compensation for its activities hereunder, the Servicer shall
be entitled to receive the Servicing Fee with respect to each Mortgage Loan,
Companion Loan and REO Loan (including Specially Serviced Mortgage Loans). As to
each Mortgage Loan, Companion Loan and REO Loan, the Servicing Fee shall accrue
from time to time at the Servicing Fee Rate and shall be computed on the basis
of the Stated Principal Balance of such Mortgage Loan or Companion Loan, as the
case may be, and in the same manner as interest is calculated on the Mortgage
Loans or Companion Loan, as the case may be, and, in connection with any partial
month interest payment, for the same period respecting which any related
interest payment due on such Mortgage Loan or Companion Loan or deemed to be due
on such REO Loan is computed. The Servicing Fee with respect to any Mortgage
Loan, Companion Loan or REO Loan shall cease to accrue if a Liquidation Event
occurs in respect thereof. The Servicing Fee shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan, Companion
Loan and REO Revenues allocable as interest on each REO Loan, and as otherwise
provided by Section 3.05(a). The Servicer shall be entitled to recover unpaid
Servicing Fees in respect of any Mortgage Loan, Companion Loan or REO Loan out
of that portion of related payments, Insurance and Condemnation Proceeds,
Liquidation Proceeds and REO Revenues (in the case of an REO Loan) allocable as
recoveries of interest, to the extent permitted by Section 3.05(a). Except as
set forth in the third paragraph of this Section 3.11(a) and Section 7.01(c),
the right to receive the Servicing Fee may not be transferred in whole or in
part. Notwithstanding the foregoing, the Servicing Fee payable to the Servicer
with respect to any Companion Loan shall be as provided for in the related
Intercreditor Agreement.
The Servicer shall be entitled to retain, and shall not be required
to deposit in the Certificate Account pursuant to Section 3.04(a), additional
servicing compensation in the form of (i) 100% of application, modification,
waiver, consent and defeasance fees pursuant to Section 3.08(f) (other than with
respect to the Forum Shops Mortgage Loan), provided the consent of the Special
Servicer is not required to take such action and (ii) 50% of all application,
assumption, modification, waiver and consent fees pursuant to Section 3.08(a) on
the Non-Specially Serviced Mortgage Loans (other than with respect to the Forum
Shops Mortgage Loan), to the extent that such fees are paid by the Mortgagor and
for which the Special Servicer's consent or approval is required on the
Non-Specially Serviced Mortgage Loans (other than with respect to the Forum
Shops Mortgage Loan) and only to the extent that all amounts then due and
payable with respect to the related Mortgage Loan have been paid. In addition,
the Servicer shall be entitled to retain as additional servicing compensation,
other than with respect to the Forum Shops Mortgage Loan, any charges for
processing Mortgagor requests, beneficiary statements or demands reasonable and
customary consent fees, fees in connection with defeasance, if any, and other
customary charges, and amounts collected for checks returned for insufficient
funds, in each case only to the extent actually paid by the related Mortgagor
and shall not be required to deposit such amounts in the Certificate Account
pursuant to Section 3.04(a). Subject to Section 3.11(c), the Servicer shall also
be entitled to additional servicing compensation in the form of: (i) Penalty
Charges accrued on Mortgage Loans (other than with respect to the Forum Shops
Mortgage Loan) and the Forum Shops Companion Notes during the period said
Mortgage Loans (or Forum Shops Companion Notes) were Non-Specially Serviced
Mortgage Loans, but only to the extent actually paid by the related Mortgagor
and to the extent that all interest on related Advances and all additional Trust
Fund expenses (other than Special Servicing Fees, but including Workout Fees and
Liquidation Fees with respect to each Mortgage Loan) payable with respect to
such Mortgage Loan have been paid since the Closing Date, (ii) interest or other
income earned on deposits relating to the Trust Fund in the Certificate Account
in accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to such account for the period from the prior P&I
Advance Date to the P&I Advance Date related to such Distribution Date), (iii)
interest or other income earned on deposits in the Servicing Account which are
not required by applicable law or the related Mortgage Loan to be paid to the
Mortgagor and (iv) the difference, if positive, between Prepayment Interest
Excess and Prepayment Shortfalls collected on the Mortgage Loans during the
related Due Period to the extent not required to be paid as Compensating
Interest Payments. The Servicer shall be required to pay out of its own funds
all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts due and owing
to any of its Sub-Servicers and the premiums for any blanket Insurance Policy
insuring against hazard losses pursuant to Section 3.07), if and to the extent
such expenses are not payable directly out of the Certificate Account, and the
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan (other than the Forum Shops
Mortgage Loan and any successor REO Loan). As to each Specially Serviced
Mortgage Loan and REO Loan (other than the Forum Shops Mortgage Loan and any
successor REO Loan), the Special Servicing Fee shall accrue from time to time at
the Special Servicing Fee Rate and shall be computed on the basis of the Stated
Principal Balance of such Specially Serviced Mortgage Loan and related REO Loan
and in the same manner as interest is calculated on the Specially Serviced
Mortgage Loans and related REO Loans and, in connection with any partial month
interest payment, for the same period respecting which any related interest
payment due on such Specially Serviced Mortgage Loan and related REO Loan or
deemed to be due on such REO Loan is computed. The Special Servicing Fee with
respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. The Special Servicing
Fee shall be payable monthly, on a loan-by-loan basis, to the extent permitted
by Section 3.05(a). The right to receive the Special Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement.
The Special Servicer shall not be entitled to any Special Servicing Fees with
respect to the Forum Shops Mortgage Loan.
Additional servicing compensation in the form of (i) 100% of all
fees with respect to application, assumption, extension, modification, waiver,
consent, earnout and defeasance fees, in each case, received on any Specially
Serviced Mortgage Loans (other than the Forum Shops Mortgage Loan and any
successor REO Loan) to the extent such fees are paid by the Mortgagor (ii) 100%
of all application, extension, waiver, consent, earnout and modification fees
(not including defeasance fees) on each Specially Serviced Mortgage Loans (other
than pursuant to Section 3.08(a) and Section 3.08(f)) and (iii) 50% of all
application, assumption, modification, waiver and consent fees pursuant to
Section 3.08(a) received with respect to all Non-Specially Serviced Mortgage
Loans and for which the Special Servicer's consent or approval is required,
shall be promptly paid to the Special Servicer by the Servicer to the extent
such fees are paid by the Mortgagor and shall not be required to be deposited in
the Certificate Account pursuant to Section 3.04(a). The Special Servicer shall
also be entitled to additional servicing compensation in the form of a Workout
Fee with respect to each Corrected Mortgage Loan at the Workout Fee Rate on such
Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Special
Servicer shall not be entitled to any Workout Fee with respect to the Forum
Shops Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan
will cease to be payable if such loan again becomes a Specially Serviced
Mortgage Loan; provided that a new Workout Fee will become payable if and when
such Specially Serviced Mortgage Loan again becomes a Corrected Mortgage Loan.
If the Special Servicer is terminated (other than for cause) or resigns, it
shall retain the right to receive any and all Workout Fees payable in respect of
Mortgage Loans that became Corrected Mortgage Loans prior to the time of that
termination or resignation except the Workout Fees will no longer be payable if
the Mortgage Loan subsequently becomes a Specially Serviced Mortgage Loan. If
the Special Servicer resigns or is terminated (other than for cause), it will
receive any Workout Fees payable on Specially Serviced Mortgage Loans for which
the resigning or terminated Special Servicer had cured the event of default
through a modification, restructuring or workout negotiated by the Special
Servicer and evidenced by a signed writing with respect to which one (1)
scheduled payment has been made, but which had not as of the time the Special
Servicer resigned or was terminated become a Corrected Mortgage Loan solely
because the Mortgagor had not had sufficient time to make three consecutive
timely Monthly Payments and which subsequently becomes a Corrected Mortgage Loan
as a result of the Mortgagor making such three consecutive timely Monthly
Payments. The Special Servicer will not be entitled to receive any Workout Fees
after a termination for cause. The successor special servicer will not be
entitled to any portion of such Workout Fees. A Liquidation Fee will be payable
with respect to each Specially Serviced Mortgage Loan (other than with respect
to the Forum Shops Whole Loan) as to which the Special Servicer receives any
Liquidation Proceeds or Insurance and Condemnation Proceeds subject to the
exceptions set forth in the definition of Liquidation Fee.
If, however, Liquidation Proceeds are received with respect to any
Corrected Mortgage Loan and the Special Servicer is properly entitled to a
Workout Fee, such Workout Fee will be payable based on and out of the portion of
such Liquidation Proceeds and Insurance and Condemnation Proceeds that
constitute principal and/or interest on such Mortgage Loan. Notwithstanding
anything herein to the contrary, the Special Servicer shall only be entitled to
receive a Liquidation Fee or a Workout Fee, but not both, with respect to
proceeds on any Mortgage Loan. Subject to clause (c) below, the Special Servicer
will also be entitled to additional fees in the form of Penalty Charges on
Specially Serviced Mortgage Loans which have accrued during such time as such
Mortgage Loan was a Specially Serviced Mortgage Loan, but only to the extent
actually collected from the related Mortgagor and to the extent that all
interest on Advances and additional Trust Fund expenses (other than Special
Servicing Fees, but including Workout Fees and Liquidation Fees with respect to
each Mortgage Loan) payable with respect to the related Mortgage Loan have been
paid since the Closing Date. The Special Servicer shall be required to pay out
of its own funds all expenses incurred by it in connection with its servicing
activities hereunder (including, without limitation, payment of any amounts,
other than management fees in respect of REO Properties, due and owing to any of
its Sub-Servicers and the premiums for any blanket Insurance Policy obtained by
it insuring against hazard losses pursuant to Section 3.07), if and to the
extent such expenses are not expressly payable directly out of the Certificate
Account or the REO Account or by the Servicer as an Advance, and the Special
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement.
(c) In determining the compensation of the Servicer or Special
Servicer, as applicable, with respect to Penalty Charges, on any Distribution
Date, the aggregate Penalty Charges collected on any Mortgage Loan since the
prior Distribution Date shall be applied (in such order) to reimburse (i) the
Servicer, the Special Servicer or the Trustee, as applicable, for interest on
Advances on such Mortgage Loan that are being reimbursed with respect to such
Distribution Date (and, in connection with the Forum Shops Mortgage Loan, the
Forum Shops Primary Servicer, the Forum Shops Special Servicer, the Forum Shops
Paying Agent or the Forum Shops Trustee for interest on the Servicing Advances
made by any such party with respect to the Forum Shops Whole Loan pursuant to
the Forum Shops Pooling Agreement, to the extent so provided in the Forum Shops
Intercreditor Agreement), (ii) the Trust Fund for all interest on Advances on
the related Mortgage Loan previously paid to the Servicer, the Special Servicer
or the Trustee pursuant to Section 3.05(a)(vi) hereof (and, in connection with
the Forum Shops Mortgage Loan, the Forum Shops Trust for all interest on
Servicing Advances reimbursed by the Forum Shops Trust to any party under the
Forum Shops Pooling Agreement, which resulted in an additional trust fund
expense for the Forum Shops Trust, to the extent so provided in the Forum Shops
Intercreditor Agreement) and (iii) the Trust Fund for costs of inspections by
the Special Servicer, all unpaid Advances and additional Trust Fund expenses
(other than Special Servicing Fees, but including Workout Fees and Liquidation
Fees with respect to each Mortgage Loan) on the related Mortgage Loan incurred
since the Closing Date. Penalty Charges (other than with respect to the Forum
Shops Mortgage Loan, which shall be payable as additional servicing compensation
under the Forum Shops Pooling Agreement) remaining thereafter shall be
distributed on a pro rata basis to the Servicer, if and to the extent accrued
while the Mortgage Loan was a Non-Specially Serviced Mortgage Loan and the
Special Servicer if and to the extent accrued on such Mortgage Loan during the
period such Mortgage Loan was a Specially Serviced Mortgage Loan.
Section 3.12 Inspections; Collection of Financial Statements.
(a) The Servicer shall perform (at its own expense), or shall cause
to be performed (at its own expense), a physical inspection of each Mortgaged
Property (other than Forum Shops Mortgaged Property) at least once every
calendar year commencing in the calendar year 2005; provided, however, that if a
physical inspection has been performed by the Special Servicer in the previous
calendar year and the Servicer has no knowledge of a material change in the
Mortgaged Property since such physical inspection, the Servicer will not be
required to perform or cause to be performed, such physical inspection;
provided, further, that if any scheduled payment becomes more than 60 days
delinquent on the related Mortgage Loan, the Special Servicer shall inspect the
related Mortgaged Property as soon as practicable after such Mortgage Loan
becomes a Specially Serviced Mortgage Loan and annually thereafter for so long
as such Mortgage Loan remains a Specially Serviced Mortgage Loan. The cost of
such inspection by the Special Servicer shall be an expense of the Trust Fund,
reimbursed first from Penalty Charges actually received from the related
Mortgagor and then from the Certificate Account pursuant to Section 3.05(a)(ii).
The Special Servicer or the Servicer, as applicable, shall prepare or cause to
be prepared a written report, in the format provided by CMSA, of each such
inspection detailing the condition of the Mortgaged Property and specifying the
existence of (i) any vacancy in the Mortgaged Property that the preparer of such
report deems material, (ii) any sale, transfer or abandonment of the Mortgaged
Property of which it has knowledge, (iii) any adverse change in the condition of
the Mortgaged Property that the preparer of such report deems material, (iv) any
visible material waste committed on the Mortgaged Property and (v) photographs
of each inspected Mortgaged Property. The Special Servicer and the Servicer
shall deliver a copy of each such report prepared by the Special Servicer and
the Servicer, respectively, to the other, and to the Directing Certificateholder
and, upon request to the Trustee, the Paying Agent and the Rating Agencies
within five (5) Business Days after such request (or if such request is received
before such report is completed, within five (5) Business Days after completion
of such report). The Paying Agent shall deliver a copy of each such report to
the Controlling Class Certificateholder upon request and to each Holder of a
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P
and Class NR Certificate, upon request (which such request may state that such
items be delivered until further notice).
(b) [Reserved].
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Servicer, in the case of any Non-Specially Serviced
Mortgage Loan (other than the Forum Shops Whole Loan) shall make reasonable
efforts to collect promptly from each related Mortgagor quarterly and annual
operating statements, budgets and rent rolls of the related Mortgaged Property,
and the quarterly and annual financial statements of such Mortgagor, whether or
not delivery of such items is required pursuant to the terms of the related
Mortgage. The Servicer shall not be required to request such statements more
than once if the related Mortgagor is not required to deliver such statements
pursuant to the terms of the Mortgage Loan documents. In addition, the Special
Servicer shall cause quarterly and annual operating statements, budgets and rent
rolls to be regularly prepared in respect of each REO Property and shall collect
all such items promptly following their preparation. The Special Servicer shall
deliver all such items to the Servicer within five (5) days of receipt and the
Servicer and the Special Servicer shall each deliver copies of all the foregoing
items collected by it to the Paying Agent and the Directing Certificateholder
and, upon request, to the Depositor and the Trustee and each other (in hard
copy, electronic format or made available on its Internet website), in each case
within 60 days of its receipt thereof, but in no event, in the case of annual
statements, later than June 30th of each year. The Paying Agent shall, upon
request, deliver copies (in hard copy, electronic format or make available on
its Internet website) of the foregoing items to the Underwriters, the Rating
Agencies, the Trustee, Controlling Class Certificateholders, the Mortgage Loan
Sellers or, to the extent the Certificate Registrar has confirmed the Ownership
Interest in Certificates held thereby, any Certificate Owner, a copy (or image
in suitable electronic media) of each such report prepared by the Servicer or
the Special Servicer.
Within 45 days after receipt by the Servicer, with respect to
Non-Specially Serviced Mortgage Loans, or the Special Servicer with respect to
Specially Serviced Mortgage Loans of any annual operating statements or rent
rolls with respect to any Mortgaged Property (other than the Forum Shops
Mortgaged Property) or REO Property, or if such date would be after June 30th of
any year, then within 30 days after receipt, the Servicer shall, based upon such
operating statements or rent rolls received, prepare (or, if previously
prepared, update) the analysis of operations and the NOI Adjustment Worksheet
and the Operating Statement Analysis Report. Upon the occurrence and
continuation of a Servicing Transfer Event, the Servicer shall provide the
Special Servicer with all prior Operating Statement Analysis Reports and NOI
Adjusted Worksheets for the related Mortgage Loan (including underwritten
figures), and the Special Servicer's obligations hereunder shall be subject to
its having received all such reports. The Servicer and Special Servicer shall
forward to the other and the Directing Certificateholder electronically monthly
all operating statements and rent rolls received from any Mortgagor from the
prior month. All Operating Statement Analysis Reports shall be maintained by the
Servicer with respect to each Mortgaged Property (other than the Forum Shops
Mortgaged Property) and REO Property, and the Servicer shall forward copies (in
hard copy, electronic format or make available on its Internet website) thereof
and the related operating statements or rent rolls (in each case, promptly
following the initial preparation and each material revision thereof) to the
Trustee (upon request), the Paying Agent, the Directing Certificateholder (and
with respect to the Forum Shops Whole Loan, the Forum Shops Representative) and,
upon written request, the Special Servicer. The Paying Agent shall, upon request
and to the extent such items have been delivered to the Paying Agent by the
Servicer, deliver to the Underwriters, the Rating Agencies, the Mortgage Loan
Sellers, any Certificateholder or, to the extent the Certificate Registrar has
confirmed the Ownership Interest in the Certificates held thereby, any
Certificate Owner, a copy of such Operating Statement Analysis (or update
thereof) and, upon written request, the related operating statement or rent
rolls. The Servicer shall maintain an Operating Statement Analysis Report with
respect to each Mortgaged Property and REO Property. Each Operating Statement
Analysis Report shall be in the form of the then current CMSA format.
(d) At or before 12:00 p.m. (New York City time) on each
Determination Date, the Special Servicer shall prepare and deliver or cause to
be delivered to the Servicer the following reports with respect to the Specially
Serviced Mortgage Loans and any REO Properties, providing the information
required of the Special Servicer in an electronic format, reasonably acceptable
to the Servicer as of such Determination Date: (i) a CMSA Delinquent Loan Status
Report, (ii) a CMSA Property File, (iii) a CMSA Historical Liquidation Report;
(iv) a CMSA Historical Loan Modification Report, (v) a CMSA REO Status Report
and (vi) a CMSA Special Servicer Report.
(e) Not later than 12:30 p.m. (New York City time) on the P&I
Advance Determination Date, the Servicer shall prepare (if and to the extent
necessary) and deliver or cause to be delivered (in electronic format) to the
Paying Agent data files relating to the following reports: (i) to the extent
received at the time required, the most recent CMSA Delinquent Loan Status
Report, CMSA Historical Liquidation Report, CMSA Historical Loan Modification
Report and CMSA REO Status Report received from the Special Servicer pursuant to
Section 3.12(d), (ii) the most recent CMSA Property File Report, and CMSA
Comparative Financial Status Report (in each case combining the reports required
in Section 3.12(d) by the Special Servicer and Servicer), (iii) a Servicer Watch
List Report with information that is current as of such Determination Date and
(iv) an Updated Collection Report. Not later than 2:00 p.m. (New York City time)
two (2) Business Days prior to the Distribution Date, the Servicer shall deliver
or cause to be delivered to the Paying Agent via electronic format the CMSA Loan
Periodic Update File.
(f) The Special Servicer shall deliver to the Servicer the reports
set forth in Section 3.12(c) and Section 3.12(d), and the Servicer shall deliver
to the Paying Agent the reports set forth in Section 3.12(e). The Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer pursuant to Section 3.12(d). The Paying Agent may, absent
manifest error, conclusively rely on the reports to be provided by the Servicer
pursuant to Section 3.12(e). In the case of information or reports to be
furnished by the Servicer to the Paying Agent pursuant to Section 3.12(e), to
the extent that such information or reports are, in turn, based on information
or reports to be provided by the Special Servicer pursuant to Section 3.12(c) or
Section 3.12(d) and to the extent that such reports are to be prepared and
delivered by the Special Servicer pursuant to Section 3.12(c) or Section
3.12(d), the Servicer shall have no obligation to provide such information or
reports to the Paying Agent until it has received the requisite information or
reports from the Special Servicer, and the Servicer shall not be in default
hereunder due to a delay in providing the reports required by Section 3.12(e)
caused by the Special Servicer's failure to timely provide any information or
report required under Section 3.12(c) or Section 3.12(d) of this Agreement.
(g) Notwithstanding the foregoing, however, the failure of the
Servicer or Special Servicer to disclose any information otherwise required to
be disclosed by this Section 3.12 shall not constitute a breach of this Section
3.12 to the extent the Servicer or Special Servicer so fails because such
disclosure, in the reasonable belief of the Servicer or the Special Servicer, as
the case may be, would violate any applicable law or any provision of a Mortgage
Loan document prohibiting disclosure of information with respect to the Mortgage
Loans or Mortgaged Properties. The Servicer and Special Servicer may disclose
any such information or any additional information to any Person so long as such
disclosure is consistent with applicable law and the Servicing Standards. The
Servicer or the Special Servicer may affix to any information provided by it any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(h) Unless otherwise specifically stated herein, if the Servicer or
the Special Servicer is required to deliver any statement, report or information
under any provisions of this Agreement, the Servicer or the Special Servicer, as
the case may be, may satisfy such obligation by (x) physically delivering a
paper copy of such statement, report or information, (y) delivering such
statement, report or information in a commonly used electronic format or (z)
making such statement, report or information available on the Servicer's
Internet website, unless this Agreement expressly specifies a particular method
of delivery.
Notwithstanding the foregoing, the Servicer and the Special Servicer
shall deliver any statements, reports or other information to the Paying Agent
in an electronic format mutually agreeable to the Paying Agent and the Servicer,
or the Special Servicer as the case may be. The Servicer or the Special Servicer
may physically deliver a paper copy of any such statement, report or information
as a temporary measure due to system problems.
Section 3.13 Annual Statement as to Compliance.
Each of the Servicer and the Special Servicer will deliver to the
Trustee, the Paying Agent and the Rating Agencies, with a copy to the Depositor,
on or before March 20 of each year, beginning March 20, 2005, an Officer's
Certificate stating, as to each signer thereof, that (i) a review of the
activities of the Servicer or the Special Servicer, as the case may be, during
the preceding calendar year has been made under such officer's supervision, (ii)
to the best of such officer's knowledge, based on such review, the Servicer or
the Special Servicer, as the case may be, has maintained an effective internal
control system relating to its servicing of the Mortgage Loans serviced by it
and has fulfilled in all material respects its obligations under this Agreement
throughout such year, or, if there has been a material default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and (iii) the Servicer or the Special
Servicer, as the case may be, has received no notice regarding qualification, or
challenging the status of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC from the Internal Revenue Service or any other governmental agency or body
or, if it has received any such notice, specifying the details thereof. A copy
of such Officer's Certificate may be obtained by Certificateholders upon written
request to the Paying Agent pursuant to Section 8.12 hereof. Promptly after
receipt of such Officer's Certificates, the Depositor shall review such
Officer's Certificates and, if applicable, consult with the Servicer or the
Special Servicer, as applicable, as to the nature of any defaults by the
Servicer or the Special Servicer, as applicable, in the fulfillment of any of
the Servicer's or the Special Servicer's obligations.
Section 3.14 Reports by Independent Public Accountants.
Each of the Servicer and the Special Servicer at their own expense
shall cause a nationally recognized firm of independent certified public
accountants to furnish to the Trustee, the Paying Agent and each Rating Agency
with a copy to the Depositor, on or before March 20 of each year, commencing
with March 20, 2005, a report stating that (i) it has obtained from the Servicer
or the Special Servicer, as the case may be, a letter of representation
regarding certain matters from the management of the Servicer or the Special
Servicer, as the case may be, which includes an assertion that the Servicer or
the Special Servicer, as the case may be, has maintained an effective internal
control system with respect to the servicing of the Mortgage Loans and has
complied with certain minimum mortgage loan servicing standards (to the extent
applicable to commercial and multifamily mortgage loans), identified in the
Uniform Single Attestation Program for Mortgage Bankers established by the
Mortgage Bankers Association of America, with respect to the Servicer's or the
Special Servicer's, as the case may be, servicing of commercial and multifamily
mortgage loans during the most recently completed calendar year and (ii) on the
basis of an examination conducted by such firm in accordance with standards
established by the American Institute of Certified Public Accountants, such
assertion is fairly stated in all material respects, subject to such exceptions
and other qualifications that, in the opinion of such firm, such standards
require it to report. In rendering its report such firm may rely, as to the
matters relating to the direct servicing of commercial and multifamily mortgage
loans by Sub-Servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted in
accordance with the same standards (rendered with respect to such Sub-Servicer's
previous fiscal year) with respect to those Sub-Servicers. Promptly after
receipt of such reports, the Depositor shall review such reports and, if
applicable, consult with the Servicer or the Special Servicer, as applicable, as
to the nature of any defaults by the Servicer or the Special Servicer, as
applicable, in the fulfillment of any of the Servicer's or the Special
Servicer's obligations.
Section 3.15 Access to Certain Information.
Each of the Servicer and the Special Servicer shall provide or cause
to be provided to any Certificateholder or Certificate Owner that is, or is
affiliated with, a federally insured financial institution, the Trustee, the
Paying Agent, the Depositor, each Mortgage Loan Seller, each Rating Agency, the
Servicer, or the Special Servicer, as applicable, and to the OTS, the FDIC, the
Federal Reserve Board and the supervisory agents and examiners of such boards
and such corporations, and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Certificateholder, and
to each Holder of a Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class P or Class NR Certificate, and to each Companion Holder
(solely with respect to the related AB Mortgage Loan) access to any
documentation or information regarding the Mortgage Loans and the Trust Fund
within its control which may be required by this Agreement or by applicable law,
and the Special Servicer shall provide such access and information to the
Trustee, the Servicer and the Directing Certificateholder. Such access shall be
afforded without charge but only upon reasonable prior written request and
during normal business hours at the offices of the Servicer or the Special
Servicer, as the case may be, designated by it; provided, however, that
Certificateholders and Certificate Owners shall be required to pay their own
photocopying costs and execute a reasonable and customary confidentiality
agreement with respect to such information. The failure of the Servicer or the
Special Servicer to provide access as provided in this Section 3.15 as a result
of a confidentiality obligation shall not constitute a breach of this Section
3.15. The Servicer and the Special Servicer may each deny any of the foregoing
persons access to confidential information or any intellectual property which
the Servicer or the Special Servicer is restricted by license or contract from
disclosing.
Section 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or a nominee thereof on
behalf of the Certificateholders, and if applicable, the Companion Holder. The
Special Servicer, on behalf of the Lower-Tier REMIC, shall sell any REO Property
prior to the close of the third calendar year following the year in which the
Lower-Tier REMIC acquires ownership of such REO Property, within the meaning of
Treasury Regulations Section 1.856-6(b)(1), for purposes of Section 860G(a)(8)
of the Code, unless the Special Servicer either (i) is granted an extension of
time (an "REO Extension") by the Internal Revenue Service to sell such REO
Property or (ii) obtains for the Trustee, the Paying Agent and the Servicer an
Opinion of Counsel, addressed to the Trustee, the Paying Agent and the Servicer,
to the effect that the holding by the Lower-Tier REMIC of such REO Property
subsequent to the close of the third calendar year following the year in which
such acquisition occurred will not result in the imposition of taxes on
"prohibited transactions" (as defined in Section 860F of the Code) of the
Lower-Tier REMIC or the Upper-Tier REMIC, or cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interests or Certificates are outstanding. If the
Special Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
sell such REO Property within such longer period as is permitted by such REO
Extension or such Opinion of Counsel, as the case may be. Any expense incurred
by the Special Servicer in connection with its being granted the REO Extension
contemplated by clause (i) of the second preceding sentence or its obtaining the
Opinion of Counsel contemplated by clause (ii) of the second preceding sentence,
shall be an expense of the Trust Fund payable out of the Certificate Account
pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and, if
applicable, the Companion Holder, as their interest shall appear, and the
Trustee (as holder of the Uncertificated Lower-Tier Interests), for the
retention of revenues and other proceeds derived from each REO Property. The REO
Account shall be an Eligible Account. The Special Servicer shall deposit, or
cause to be deposited, in the REO Account, within 1 Business Day after receipt,
all REO Revenues, Insurance and Condemnation Proceeds and Liquidation Proceeds
received in respect of an REO Property. Funds in the REO Account may be invested
in Permitted Investments in accordance with Section 3.06. The Special Servicer
shall give notice to the Trustee and the Servicer of the location of the REO
Account when first established and of the new location of the REO Account prior
to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, insuring, leasing, maintenance
and disposition of any REO Property, but only to the extent of amounts on
deposit in the REO Account relating to such REO Property. On or prior to each
Determination Date, the Special Servicer shall withdraw from the REO Account and
remit to the Servicer, which shall deposit into the Certificate Account, the
aggregate of all amounts received in respect of each REO Property during the
most recently ended Due Period, net of (i) any withdrawals made out of such
amounts pursuant to the preceding sentence and (ii) Net Investment Earnings on
amounts on deposit in the REO Account; provided, however, that the Special
Servicer may retain in such REO Account, in accordance with the Servicing
Standards, such portion of such balance as may be necessary to maintain a
reasonable reserve for repairs, replacements, leasing, management and tenant
improvements and other related expenses for the related REO Property. In
addition, on or prior to each Determination Date, the Special Servicer shall
provide the Servicer with a written accounting of amounts remitted to the
Servicer for deposit in the Certificate Account on such date. The Servicer shall
apply all such amounts as instructed by the Special Servicer on the
Determination Date for the related Distribution Date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, consent, protect, operate and lease such REO Property for the
benefit of the Certificateholders and the Companion Holder, as applicable, and
the Trustee (as holder of the Uncertificated Lower-Tier Interests) solely for
the purpose of its timely disposition and sale in a manner that does not cause
such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code or result in the receipt by the Trust
Fund of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or result in an Adverse REMIC Event. Subject to the
foregoing, however, the Special Servicer shall have full power and authority to
do any and all things in connection therewith as are in the best interests of
and for the benefit of the Certificateholders (and, in the case of each Loan
Pair, the Certificateholder and the related Companion Holder as a collective
whole) and the Trustee (as holder the Uncertificated Lower-Tier Interests) (as
determined by the Special Servicer in its reasonable judgment in accordance with
the Servicing Standards and any related Intercreditor Agreements). Subject to
this Section 3.17, the Special Servicer may allow the Trust Fund to earn "net
income from foreclosure property" within the meaning of Code Section 860G(d) if
it determines that earning such income is in the best interests of
Certificateholders on a net after-tax basis as compared with net leasing such
REO Property or operating such REO Property on a different basis. In connection
therewith, the Special Servicer shall deposit or cause to be deposited on a
daily basis (and in no event later than 1 Business Day following receipt of such
funds) in the applicable REO Account all revenues received by it with respect to
each REO Property and the related REO Loan, and shall withdraw from the REO
Account, to the extent of amounts on deposit therein with respect to such REO
Property, funds necessary for the proper operation, management, leasing and
maintenance of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such REO
Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Servicer (subject to receiving
notice from the Special Servicer in accordance with the procedures set forth
elsewhere in this Agreement) or Special Servicer shall advance from its own
funds such amount as is necessary for such purposes unless (as evidenced by an
Officer's Certificate delivered to the Trustee, the Paying Agent and the
Directing Certificateholder) such advances would, if made, constitute
Nonrecoverable Servicing Advances.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Servicer or Special Servicer as
a Servicing Advance) to the effect that such action will not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code at any time that it is held by the Trust Fund, in
which case the Special Servicer may take such actions as are specified in such
Opinion of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated to manage and supervise
such Independent Contractor in accordance with the Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee, the Paying Agent and the Servicer a statement prepared by the Special
Servicer setting forth the amount of net income or net loss, as determined for
federal income tax purposes, resulting from the operation and management of a
trade or business on, the furnishing or rendering of a non-customary service to
the tenants of, or the receipt of any other amount not constituting Rents from
Real Property in respect of, any REO Property in accordance with Sections
3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan (other than
the Forum Shops Mortgage Loan) has become a Specially Serviced Mortgage Loan
with respect to any Defaulted Mortgage Loan, the Special Servicer shall order an
Appraisal (but shall not be required to be received) and within thirty (30) days
of receipt of the Appraisal shall determine the fair value of such Defaulted
Mortgage Loan in accordance with the Servicing Standards; provided, however,
that such determination shall be made without taking into account any effect the
restrictions on the sale of such Mortgage Loan contained herein may have on the
value of such Defaulted Mortgage Loan; provided, further, that if the Special
Servicer is then in the process of obtaining an Appraisal with respect to the
related Mortgaged Property, the Special Servicer shall make its fair value
determination as soon as reasonably practicable (but in any event within thirty
(30) days) after its receipt of such an Appraisal. The Special Servicer will,
from time to time, adjust its fair value determination based upon changed
circumstances, new information and other relevant factors, in each instance in
accordance with the Servicing Standards, but not less often than every 90 days.
The Special Servicer shall notify the Trustee, the Paying Agent, the Servicer
and the Certificateholder that owns the largest aggregate Certificate Balance of
the Controlling Class (the "Controlling Class Option Holder") promptly upon its
fair value determination and any adjustment thereto. The Special Servicer shall
also deliver to the Servicer, the Rating Agencies and the Controlling Class
Option Holder the most recent Appraisal of the related Mortgaged Property then
in the Special Servicer's possession, together with such other third-party
reports and other information then in the Special Servicer's possession that the
Special Servicer reasonably believes to be relevant to the fair value
determination with respect to such Mortgage Loan (such materials are,
collectively, the "Determination Information"). If the Special Servicer will not
be determining whether the Option Price represents fair value of the Defaulted
Mortgage Loan, pursuant to the second to last paragraph of Section 3.18(a)(iv),
the Special Servicer shall also deliver the Determination Information to the
Trustee.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to the Determination
Information and all other relevant information obtained by it or otherwise
contained in the Mortgage File; provided that the Special Servicer shall take
account of any change in circumstances regarding the related Mortgaged Property
known to the Special Servicer that has occurred subsequent to, and that would,
in the Special Servicer's reasonable judgment, materially affect the value of
the related Mortgaged Property reflected in, the most recent related Appraisal.
Furthermore, the Special Servicer shall consider all available objective
third-party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the Special
Servicer, concerning the market for distressed real estate loans and the real
estate market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may conclusively rely on the
opinion and reports of Independent third parties in making such determination.
(ii) Subject to the terms and conditions of clauses (d), (e) and (f)
of this Section 3.18, at the time a Mortgage Loan becomes a Defaulted
Mortgage Loan, the Special Servicer and Controlling Class Option Holder
(each, together with their assignees, an "Option Holder") will have an
assignable option (the "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund at a price (the "Option Price") equal to
(A) if the Special Servicer has not yet determined the fair value of such
Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Yield Maintenance Charge (except if the
Purchase Option is exercised by the Controlling Class Option Holder) then
payable, to the extent the Special Servicer or the Special Servicer's
assignee is identified as the Person that will acquire the related
Mortgage Loan, (3) all related Advances for which the Trust Fund or the
related Servicer has not been reimbursed, together with all accrued and
unpaid interest thereon at the Reimbursement Rate, and (4) all accrued
Special Servicing Fees and additional Trust Fund expenses allocable to
such Defaulted Mortgage Loan that are unrecovered from the related
Mortgagor or (B) if the Special Servicer has determined the fair value of
such Defaulted Mortgage Loan pursuant to clause (i) above, an amount at
least equal to such fair value. Notwithstanding the foregoing, for a
period of sixty (60) days after it receives notice of the Special
Servicer's fair value determination (the "Controlling Class
Certificateholder's Option Period"), only the Purchase Option held by the
Controlling Class Option Holder may be exercised.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party
at any time after the related Mortgage Loan becomes a Defaulted Mortgage
Loan. The transferor of any Purchase Option shall notify the Trustee, the
Paying Agent and the Servicer of such transfer and such notice shall
include the transferee's name, address, telephone number, facsimile number
and appropriate contact person(s) and shall be acknowledged in writing by
the transferee.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, that if such Mortgage Loan subsequently becomes a
Defaulted Mortgage Loan, the related Purchase Option shall again be
exercisable, (B) upon the acquisition, by or on behalf of the Trust Fund,
of title to the related Mortgaged Property through foreclosure or deed in
lieu of foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout, or
(D) subject to the Servicer's determination set forth in clause (iv)
below, upon another Option Holder's exercise of its Purchase Option with
respect to the related Mortgage Loan becoming effective pursuant to clause
(iii) below.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Controlling Class Certificateholder's Option Period,
each Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Servicer, the Trustee and the Paying Agent written notice thereof (the
"Purchase Option Notice"), in the form of Exhibit J, which notice shall
identify the Person that, on its own or through an Affiliate, will acquire
the related Mortgage Loan upon closing and shall specify a cash exercise
price at least equal to the Option Price. The Purchase Option Notice shall
be delivered in the manner specified in Section 11.05. Immediately upon
receipt of such Purchase Option Notice, the Special Servicer shall notify
the remaining Option Holders that a Purchase Option has been exercised.
Within ten (10) days thereafter, each remaining Option Holder may submit
to the Servicer a Purchase Option Notice for the related Defaulted
Mortgage Loan. Upon the expiration of such ten (10) day period, or such
sooner time as all remaining Option Holders have submitted Purchase Option
Notices, the Special Servicer shall notify the Option Holder whose
Purchase Option Notice included the highest exercise price that the
exercise of its Purchase Option is effective. The Special Servicer shall
also notify the Trustee of such effective exercise. In the event that more
than one Option Holder exercises its Purchase Option at the same price,
the Purchase Option Notice first received by the Servicer shall be
effective. The exercise of any Purchase Option pursuant to this clause
(iii) shall be irrevocable.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the Servicer (or an independent third party appointed by
the Trustee if the Servicer is an affiliate of the Special Servicer) shall
determine as soon as reasonably practicable (and, in any event, within
thirty (30) days) after the Servicer has received the written notice and
the Determination Information to be provided to Servicer by Special
Servicer under Section 3.18(a)(i), whether the Option Price represents
fair value for the Defaulted Mortgage Loan; provided that, if the Special
Servicer is then in the process of obtaining a new Appraisal with respect
to the related Mortgaged Property, then the Servicer (or the independent
third party, as applicable) shall make its fair value determination with
respect to such Mortgage Loan as soon as reasonably practicable (but in
any event within thirty (30) days) after the Servicer's receipt of such
new Appraisal. Such fair value determination shall be made in accordance
with Servicing Standards. In determining the fair value of any Defaulted
Mortgage Loan, the Servicer (or the independent third party, as
applicable) shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the
local economy in the area where the Mortgaged Property is located, and the
time and expense associated with a purchaser's foreclosing on the related
Mortgaged Property. In addition, the Servicer (or the independent third
party, as applicable) shall refer to the Determination Information and all
other relevant information delivered to it by the Special Servicer or
otherwise contained in the Mortgage File; provided that the Servicer (or
the independent third party, as applicable) shall take account of any
change in circumstances regarding the related Mortgaged Property known to
the Servicer (or the independent third party, as applicable) that has
occurred subsequent to, and that would, in the Servicer's (or the
independent third party's, as applicable) reasonable judgment, materially
affect the value of the related Mortgaged Property reflected in, such
appraisal. Furthermore, the Servicer (or the independent third party, as
applicable) shall consider all available objective third-party information
obtained from generally available sources, as well as information obtained
from vendors providing real estate services to the Servicer (or the
independent third party, as applicable), concerning the market for
distressed real estate loans and the real estate market for the subject
property type in the area where the related Mortgaged Property is located.
The Servicer may conclusively rely on the opinion and reports of
Independent third parties in making such determination. The Servicer (or
the independent third party, as applicable) shall be entitled to receive
out of the Certificate Account as additional compensation a $1,000 fee for
the determination made in accordance with this clause (iv), provided,
however, with respect to any Mortgage Loan, the $1,000 fee shall be
collectible once. The reasonable cost of all third party consultants and
related reports, including but not limited to appraisals, inspection
reports (in the event that such inspection report is pursuant to this
Section 3.18 and not an annual inspection pursuant to Section 3.12) and
broker opinions of value, reasonably incurred by the Servicer (or the
independent third party, as applicable) or Special Servicer pursuant to
this Section 3.18 shall constitute, and be reimbursable as, Servicing
Advances; provided that the Servicer may rely on the most current
Appraisal and property inspection report obtained for the related
Mortgaged Property pursuant to Section 3.12. The other parties to this
Agreement shall cooperate with all reasonable requests for information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, and the Servicer and the Special Servicer are Affiliates,
the Trustee, subject to the Directing Certificateholder's reasonable prior
written consent, which consent shall not be unreasonably withheld, shall
designate an Independent third party, independent of the Directing
Certificateholder, to determine whether the Option Price represents fair
value for the Defaulted Mortgage Loan, in the manner and within the time
set forth in the first paragraph of this clause (iv). In the event that
the Trustee is called upon to designate such a third party to make such
determination, the Trustee will not assume any responsibility for such
third party's determination which determination the Trustee shall be
entitled to conclusively rely upon. The Servicer, at the direction of the
Trustee, may pay such third party a fee of up to $1,000 out of the
Certificate Account. The reasonable costs of all appraisals, inspection
reports and broker opinions of value, reasonably incurred by the Trustee
or any such third party pursuant to this paragraph shall be advanced by
the Servicer and shall constitute, and be reimbursable as, Servicing
Advances. In connection with the Trustee's designating an Independent
third party, the Special Servicer shall deliver to the Trustee for such
Independent third party's use the Determination Information.
In the event the Servicer or any designated third party, as
applicable, determines that the Option Price is less than the fair value
of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon in
making such determination, to the Special Servicer, who may then adjust
its fair value determination and, consequently, the Option Price, pursuant
to Section 3.18(a)(i). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to clause (iii)
above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close
the purchase of the Defaulted Mortgage Loan. Upon notice from such Option
Holder, or the Special Servicer, that such Option Holder rejects the
Option Price as adjusted, the Servicer and the Trustee shall provide the
notices described in the second paragraph of clause (v) below and
thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Special Servicer within ten
(10) Business Days of its receipt of the Special Servicer's notice
confirming that the exercise of its Purchase Option is effective. Upon
receipt of an Officer's Certificate from the Special Servicer specifying
the date for closing the purchase of the related Defaulted Mortgage Loan,
and the purchase price to be paid therefor, the Trustee shall deliver at
such closing for release to or at the direction of such Option Holder, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be
provided to it by such Option Holder and are reasonably necessary to vest
in the purchaser or any designee thereof the ownership of such Mortgage
Loan on a servicing released basis. In connection with any such purchase
by any Person other than it, the Special Servicer shall deliver the
related Mortgage File to or at the direction of the purchaser. In any
case, the Special Servicer shall remit to the Servicer the purchase price
(except that portion of any purchase price constituting Gain-on-Sale
Proceeds which shall be deposited in the Gain-on-Sale Reserve Account) for
deposit into the Certificate Account within one (1) Business Day following
the closing of the sale of the related Defaulted Mortgage Loan and the
Servicer shall deposit such funds into the Certificate Account.
The Special Servicer shall immediately notify the Trustee and the
Servicer upon the holder of the effective Purchase Option's failure to
remit the purchase price specified in its Purchase Option Notice pursuant
to this clause (v). Thereafter, the Trustee shall notify each Option
Holder of such failure and any Option Holder may then exercise its
purchase option in accordance with this Section 3.18(a).
(vi) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised, the Special Servicer shall pursue
such other resolution strategies with respect to such Defaulted Mortgage
Loan, including, without limitation, workout and foreclosure, as the
Special Servicer may deem appropriate, consistent with the Asset Status
Report and Servicing Standards; provided, however, the Special Servicer
shall not sell any Defaulted Mortgage Loan (other than in connection with
exercise of a related Purchase Option).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor). The Special Servicer may also offer to sell to any
Person any REO Property, if and when the Special Servicer determines, consistent
with the Servicing Standards, that such a sale would be in the best economic
interests of the Trust Fund. The Special Servicer shall give the Paying Agent
and the Trustee, the Servicer and the Directing Certificateholder not less than
five (5) Business Days' prior written notice of the Purchase Price and its
intention to (i) purchase any REO Property at the Purchase Price therefor or
(ii) sell any REO Property, in which case the Special Servicer shall accept the
highest offer received from any Person for any REO Property in an amount at
least equal to the Purchase Price therefor. To the extent permitted by
applicable law, and subject to the Servicing Standards, the Servicer, an
Affiliate of the Servicer, the Special Servicer or an Affiliate of the Special
Servicer, or an employee of either of them may act as broker in connection with
the sale of any REO Property and may retain from the proceeds of such sale a
brokerage commission that does not exceed the commission that would have been
earned by an independent broker pursuant to a brokerage agreement entered into
at arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the
Special Servicer to be a fair price for such REO Property, if the highest
offeror is a Person other than an Interested Person, or if such price is
determined to be such a price by the Trustee, if the highest offeror is an
Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates
may make an offer for or purchase any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with Servicing Standards, that
rejection of such offer would be in the best interests of the
Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the Servicing Standards stated
in Section 3.01, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations, or the
terms offered by the prospective buyer making the lower offer are more
favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any REO Property, the Trustee and the Special
Servicer shall obtain and may conclusively rely on the opinion of an
Independent appraiser or other Independent expert in real estate matters
retained by the Trustee or the Special Servicer, as applicable, at the
expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition of
such REO Property, the state of the local economy and the Trust Fund's
obligation to comply with REMIC Provisions.
(ii) Subject to Servicing Standards, the Special Servicer shall act
on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any REO Property,
including the collection of all amounts payable in connection therewith. A
sale of any REO Property shall be without recourse to, or representation
or warranty by, the Trustee, the Paying Agent, the Depositor, any
Servicer, or the Trust Fund (except that any contract of sale and
assignment and conveyance documents may contain customary warranties of
title, so long as the only recourse for breach thereof is to the Trust
Fund) and, if consummated in accordance with the terms of this Agreement,
none of the Servicers, the Paying Agent, the Depositor or the Trustee
shall have any liability to the Trust Fund or any Certificateholder with
respect to the purchase price therefor accepted by the Special Servicer or
the Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the related Intercreditor Agreement, each Companion
Holder, other than the Forum Shops Companion Holder, will have the right to
purchase the related AB Mortgage Loan or related REO Property. Such right of the
Companion Holders shall be given priority over any provision described in this
Section 3.18. If an AB Mortgage Loan or REO Property is purchased by the related
Companion Holder (other than the Forum Shops Companion Holder), repurchased by
the applicable Mortgage Loan Seller or otherwise ceases to be subject to this
Agreement, the related Companion Loan will no longer be subject to this
Agreement. None of the Trustee, the Paying Agent, the Servicer nor the Trust
Fund shall acquire the Companion Loan.
(e) Pursuant to the terms of the Mezzanine Intercreditor Agreements,
if the related mezzanine lender is granted the right to purchase the related
Mortgage Loan, the proceeds of such sale shall be included as Liquidation
Proceeds. No Liquidation Fee is payable if a mezzanine lender purchases the
related Mortgage Loan within 9 months after the occurrence of the Servicing
Transfer Event that first gave issue to such mezzanine lender's right to
purchase such Mortgage Loan.
(f) Notwithstanding anything herein to the contrary, the applicable
party shall be entitled to purchase the Forum Shops Mortgage Loan in accordance
with the terms and conditions set forth in the Forum Shops Intercreditor
Agreement and the Forum Shops Pooling Agreement.
(g) Notwithstanding anything to the contrary, upon the enactment of
Puerto Rico Tax Legislation and so long as an event of default under the Xxxxx
Town Center Loan has occurred and is continuing, CIBC Inc. may, in its sole
discretion, elect to purchase the Xxxxx Town Center Loan at a price equal to the
Purchase Price for that Mortgage Loan.
Section 3.19 Additional Obligations of Servicer and Special
Servicer.
(a) The Servicer shall deliver all Compensating Interest Payments to
the Paying Agent for deposit in the Distribution Account on each P&I Advance
Date, without any right of reimbursement therefor.
(b) The Servicer or Special Servicer, as applicable, shall provide
to each Companion Holder any reports or notices required to be delivered to such
Companion Holder pursuant to the related Intercreditor Agreement.
(c) The Servicer shall deliver to each Mortgage Loan Seller upon
request, without charge, no more than twice per calendar year a current list of
the Mortgagors relating to the Mortgage Loans where such Mortgage Loan Seller is
identified on the Mortgage Loan Schedule as the related Mortgage Loan Seller and
their respective billing addresses and telephone numbers; provided, however, the
Servicer shall be under no obligation to provide any information not in its
possession in connection with the servicing of such Mortgage Loans.
(d) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections on the
Mortgage Loans deposited in the Certificate Account, the Servicer or the
Trustee, at its own option, as applicable, instead of obtaining reimbursement
for the remaining amount of such Nonrecoverable Advance pursuant to Section
3.05(a)(v) immediately, may elect to refrain from obtaining such reimbursement
for such portion of the Nonrecoverable Advance during the one-month collection
period ending on the then-current Determination Date, for successive one-month
periods for a total not to exceed 12 months. If the Servicer or the Trustee
makes such an election at its sole option and in its sole discretion to defer
reimbursement with respect to all or a portion of a Nonrecoverable Advance
(together with interest thereon), then such Nonrecoverable Advance (together
with interest thereon) or portion thereof shall continue to be fully
reimbursable in the subsequent collection period (subject, again, to the same
sole option to defer; it is acknowledged that, in such a subsequent period, such
Nonrecoverable Advance shall again be reimbursable pursuant to Section
3.05(a)(v)). In connection with a potential election by the Servicer or the
Trustee to refrain from the reimbursement of a particular Nonrecoverable Advance
or portion thereof during the one-month collection period ending on the related
Determination Date for any Distribution Date, the Servicer or the Trustee shall
further be authorized to wait for principal collections to be received before
making its determination of whether to refrain from the reimbursement of a
particular Nonrecoverable Advance or portion thereof) until the end of such
collection period; provided however, if, at any time the Servicer or the
Trustee, as applicable, elects not to refrain from obtaining such reimbursement
or otherwise determines that the reimbursement of a Nonrecoverable Advance
during a one-month collection period will exceed the full amount of the
principal portion of general collections deposited in the Collection Account for
such Distribution Date, then the Servicer or the Trustee, as applicable, shall
use its reasonable efforts to give Xxxxx'x and S&P 15 days' notice of such
determination, unless extraordinary circumstances make such notice impractical.
Any election by the Servicer or the Trustee to refrain from reimbursing itself
for any Nonrecoverable Advance (together with interest thereon) or portion
thereof with respect to any collection period shall not be construed to impose
on the Servicer or the Trustee any obligation to make such an election (or any
entitlement in favor of any Certificateholder or any other Person to such an
election) with respect to any subsequent collection period) or to constitute a
waiver or limitation on the right of the Servicer or the Trustee to otherwise be
reimbursed for such Nonrecoverable Advance (together with interest thereon). Any
such election by the Servicer or the Trustee shall not be construed to impose
any duty on the other such party to make such an election (or any entitlement in
favor of any Certificateholder or any other Person to such an election). Any
such election by any such party to refrain from reimbursing itself or obtaining
reimbursement for any Nonrecoverable Advance or portion thereof with respect to
any one or more collection periods shall not limit the accrual of interest on
such Nonrecoverable Advance for the period prior to the actual reimbursement of
such Nonrecoverable Advance. None of the Servicer or the Trustee or the other
parties to this Agreement shall have any liability to one another or to any of
the Certificateholders or any of the Companion Holders for any such election
that such party makes as contemplated by this subsection or for any losses,
damages or other adverse economic or other effects that may arise from such an
election. Nothing herein shall give the Servicer or the Trustee the right to
defer reimbursement of a Nonrecoverable Advance to the extent of any principal
collections then available in the Certificate Account pursuant to Section
3.05(a)(v).
(e) With respect to the Xxxxx Town Center Loan, the Servicer shall
provide CIBC Inc. with notice of any failure of the related Mortgagor to make
Xxxxx Xxxxx-Up Payments, within 10 days of the date when such payments are due.
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) Except as set forth in this Section 3.20(a), Section 3.20(i) and
Section 3.08, the Servicer shall not agree to any modification, waiver or
amendment of a Mortgage Loan, and, except as provided in the following
paragraph, Section 3.08(e), Section 3.08(f) and in Section 3.20(d), no Mortgage
Loan that is not a Specially Serviced Mortgage Loan may be modified, waived or
amended, and in any event, the Servicer shall not modify, waive or amend a
Mortgage Loan without the prior written consent of the Special Servicer except
to the extent provided in Section 3.08(f); provided that, the Servicer shall
forward to the Special Servicer requests to extend the maturity date of a
Mortgage Loan that is not a Specially Serviced Mortgage Loan and the Special
Servicer may approve such request; provided, further, that except as provided in
the following sentence, no such extension entered into pursuant to this Section
3.20(a) shall be for a period of more than twelve months from the original
maturity date of such Mortgage Loan or shall extend the maturity date beyond the
earlier of (i) two years prior to the Rated Final Distribution Date and (ii) in
the case of a Mortgage Loan secured by a leasehold estate and not also the
related fee interest, the date twenty years prior to the expiration of such
leasehold estate. If such extension would extend the Maturity Date of a Mortgage
Loan for more than twelve months from and after the original maturity date of
such Mortgage Loan and the Mortgage Loan is not in default or default with
respect thereto is not reasonably foreseeable, the Special Servicer must provide
the Trustee, the Paying Agent, the Servicer and the Directing Certificateholders
with an opinion of counsel (at the expense of the related Mortgagor to the
extent permitted under the Mortgage Loan documents and, if not required to be
paid by the Mortgagor, the Special Servicer shall not consent to such extension
without the consent of the Directing Certificateholder) that such extension
would not constitute a "significant modification" of the Mortgage Loan within
the meaning of Treasury Regulations Section 1.860G-2(b). Notwithstanding the
foregoing, the Servicer, without the consent of the Special Servicer, and
subject to the requirements of any applicable Intercreditor Agreement or
Mezzanine Intercreditor Agreement, may modify or amend the terms of any Mortgage
Loan in order to (i) cure any ambiguity or mistake therein or (ii) correct or
supplement any provisions therein which may be inconsistent with any other
provisions therein or correct any error, provided that, if the Mortgage Loan is
not in default or default with respect thereto is not reasonably foreseeable,
such modification or amendment would not be a "significant modification" of the
Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b).
Subject to applicable law, neither the Servicer nor the Special
Servicer shall permit the substitution of any Mortgaged Property (or any portion
thereof) for one or more other parcels of real property at any time the Mortgage
Loan is not in default pursuant to the terms of the related Mortgage Loan
documents or default with respect thereto is not reasonably foreseeable unless
(i) the Servicer or the Special Servicer, as applicable, obtains from each
Rating Agency (and delivers to the Directing Certificateholder) a written
confirmation that such substitution will not cause a downgrading, qualification
or withdrawal of the then current rating assigned to any of the Certificates and
(ii) either (a) such substitution is at the unilateral option of the Mortgagor
or otherwise occurs automatically pursuant to the terms of the Mortgage Loan in
effect on the Startup Day, within the meaning of Treasury Regulations Section
1.1001-3, or (b) it has received an Opinion of Counsel to the effect that such
substitution would not be a "significant modification" of the Mortgage Loan
within the meaning of Treasury Regulations Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan or otherwise, the release of collateral or the pledge of
additional collateral) of the terms of a Specially Serviced Mortgage Loan with
respect to which a payment default or other material default has occurred or a
payment default or other material default is, in the Special Servicer's
judgment, reasonably foreseeable (as evidenced by an Officer's Certificate of
the Special Servicer), is reasonably likely to produce a greater recovery on a
net present value basis (the relevant discounting to be performed at the related
Mortgage Rate) than liquidation of such Specially Serviced Mortgage Loan, then
the Special Servicer may agree to a modification, waiver or amendment of such
Specially Serviced Mortgage Loan, subject to (x) the provisions of this Section
3.20(b) and Section 3.20(c) and subject to the approval of the Directing
Certificateholder as provided in Section 3.21, (y) with respect to an AB
Mortgage Loan, the rights of the related Companion Holder to consult with the
Special Servicer with respect to, or consent to, such modification, waiver or
amendment pursuant to the terms of the related Intercreditor Agreement and (z)
with respect to a Mortgage Loan subject to a Mezzanine Intercreditor Agreement,
the rights of the related Mezzanine Lender to consult with the Special Servicer
with respect to, or consent to, such modification, waiver or amendment pursuant
to the terms of such Mezzanine Intercreditor Agreement.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would:
(i) extend the maturity date of any such Specially Serviced Mortgage
Loan to a date occurring later than the earlier of (a) two years prior to
the Rated Final Distribution Date and (b) if such Specially Serviced
Mortgage Loan is secured by a leasehold estate and not also the related
fee interest, the date occurring twenty years or, to the extent consistent
with the Servicing Standards, giving due consideration to the remaining
term of the leasehold estate, ten years prior to the expiration of the
current term of such leasehold estate, plus any unilateral options of the
Mortgagor to extend; or
(ii) provide for the deferral of interest unless (a) interest
accrues thereon, generally, at the related Mortgage Rate and (b) the
aggregate amount of such deferred interest does not exceed 10% of the
unpaid principal balance of the Specially Serviced Mortgage Loan.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan is in default or default with
respect thereto is reasonably foreseeable, no fee described in this paragraph
shall be collected by any Servicer or Special Servicer from a Mortgagor (or on
behalf of the Mortgagor) in conjunction with any consent or any modification,
waiver or amendment of a Mortgage Loan (unless the amount thereof is specified
in the related Mortgage Note) if the collection of such fee would cause such
consent, modification, waiver or amendment to be a "significant modification" of
the Mortgage Note within the meaning of Treasury Regulations Section
1.860G-2(b).
(d) To the extent consistent with this Agreement, the Servicer or
the Special Servicer may agree to any waiver, modification or amendment of a
Mortgage Loan (other than the Forum Shops Mortgage Loan) that is not in default
or as to which default is not reasonably foreseeable only if it provides the
Trustee with an Opinion of Counsel (at the expense of the related Mortgagor or
such other Person requesting such modification or, if such expense cannot be
collected from the related Mortgagor or such other Person, to be paid by the
Servicer or Special Servicer as a Servicing Advance; provided that the Servicer
or Special Servicer, as applicable, shall use its reasonable best efforts to
collect such fee from the Mortgagor to the extent permitted under the related
Mortgage Loan documents or such other Person) to the effect that the
contemplated waiver, modification or amendment (i) will not be a "significant
modification" of the Mortgage Loan within the meaning of Treasury Regulations
Section 1.860G-2(b) and (ii) will not cause (x) either of the Lower-Tier REMIC
or the Upper-Tier REMIC to fail to qualify as a REMIC for purposes of the Code
or (y) either of the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to
any tax under the REMIC Provisions. Notwithstanding the foregoing, neither the
Servicer nor the Special Servicer may waive the payment of any Yield Maintenance
Charge or the requirement that any prepayment of a Mortgage Loan be made on a
Due Date, or if not made on a Due Date, be accompanied by all interest that
would be due on the next Due Date with respect to any Mortgage Loan that is not
a Specially Serviced Mortgage Loan.
(e) In the event of a modification which creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
pursuant to Section 4.05.
(f) Subject to Section 3.20(c), the Servicer and the Special
Servicer each may, as a condition to its granting any request by a Mortgagor for
consent, modification (including extensions), waiver or indulgence or any other
matter or thing, the granting of which is within the Servicer's or the Special
Servicer's, as the case may be, discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan and is permitted by
the terms of this Agreement, require that such Mortgagor pay to the Servicer or
the Special Servicer, as the case may be, as additional servicing compensation,
a reasonable or customary fee, for the additional services performed in
connection with such request.
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans entered into pursuant to this Section 3.20 shall be in
writing, signed by the Servicer or the Special Servicer, as the case may be, and
the related Mortgagor (and by any guarantor of the related Mortgage Loan, if
such guarantor's signature is required by the Servicer or the Special Servicer
in accordance with the Servicing Standards).
(h) Each of the Servicer and the Special Servicer shall notify the
Rating Agencies, the Trustee, the Directing Certificateholder, the Mortgage Loan
Sellers (if such Mortgage Loan Seller is not a Servicer or Sub-Servicer of such
Mortgage Loan or the Directing Certificateholder) and each other in writing of
any modification, waiver or amendment of any term of any Mortgage Loan and the
date thereof, and shall deliver to the Trustee or the related Custodian with a
copy to the Servicer (if such notice is being delivered by the Special Servicer)
for deposit in the related Mortgage File, an original counterpart of the
agreement relating to such modification, waiver or amendment, promptly (and in
any event within 10 Business Days) following the execution thereof. Following
receipt of the Servicer's or the Special Servicer's, as applicable, delivery of
the aforesaid modification, waiver or amendment to the Paying Agent, the Paying
Agent shall forward a copy thereof to each Holder of a Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class P and Class NR
Certificate.
(i) Notwithstanding the foregoing, but subject to the related
Mortgage Loan documents, neither the Servicer, for a Non-Specially Serviced
Mortgage Loan, nor the Special Servicer, for a Specially Serviced Mortgage Loan,
shall permit the substitution of any Mortgaged Property pursuant to the
defeasance provisions of any Mortgage Loan (or any portion thereof) unless such
defeasance complies with Treasury Regulations Section 1.860G-2(a)(8) and the
Servicer or the Special Servicer, as applicable, has received (i) a certificate
of an Independent certified public accountant to the effect that such
substituted property will provide cash flows sufficient to meet all payments of
interest and principal (including payments at maturity or any earlier required
payment in full of the outstanding principal balance of such Mortgage Loan) on
such Mortgage Loan in compliance with the requirements of the terms of the
related Mortgage Loan documents and (ii) one or more Opinions of Counsel (at the
expense of the related Mortgagor) to the effect that the Trustee, on behalf of
the Trust Fund, will have a first priority perfected security interest in such
substituted Mortgaged Property; provided, however, that, to the extent
consistent with the related Mortgage Loan documents, the related Mortgagor shall
pay the cost of any such opinion as a condition to granting such defeasance. To
the extent consistent with the related Mortgage Loan documents, the Mortgagor
shall establish a single purpose entity, provided that one single purpose entity
can hold the assets for more than one Mortgagor (if Mortgagors are related), to
act as a successor Mortgagor. To the extent permissible under the related
Mortgage Loan documents, the Servicer shall use its reasonable efforts to
require the related Mortgagor to pay all costs of such defeasance, including but
not limited to the cost of maintaining any successor Mortgagor, and the Servicer
shall obtain, at the expense of the related Mortgagor, written confirmation from
the Rating Agencies that such defeasance will not cause the downgrade,
withdrawal or modification of the then current ratings of the Certificates;
provided, however, that the Servicer shall not be required to obtain such
written confirmation (a) from S&P to the extent that the Servicer has delivered
a Defeasance Certificate substantially in the form of Exhibit U hereto unless
such Mortgage Loan (or Mortgage Loans if the single purpose entity established
pursuant to the prior sentence hereof holds the assets for more than one
Mortgagor) at the time of such defeasance is (A) one of the ten largest Mortgage
Loans by Stated Principal Balance, (B) a Mortgage Loan with a Cut-off Date
Principal Balance greater than $20,000,000, or (C) a Mortgage Loan that
represents 5% or more of the Cut-off Date Principal Balance of all Mortgage
Loans and (b) from Xxxxx'x unless such Mortgage Loan (or Mortgage Loans if the
single purpose entity established pursuant to the prior sentence hereof holds
the assets for more than one Mortgagor) at the time of such defeasance is (A)
one of the ten largest Mortgage Loans by Stated Principal Balance, (B) a
Mortgage Loan with a Cut-off Date Principal Balance greater than $20,000,000, or
(C) a Mortgage Loan that represents 5% or more of the Cut-off Date Principal
Balance of all Mortgage Loans.
(j) If required under the related Mortgage Loan documents or if
otherwise consistent with the Servicing Standards, the Servicer shall establish
and maintain one or more accounts (the "Defeasance Accounts"), which shall be
Eligible Accounts, into which all payments received by the Servicer from any
defeasance collateral substituted for any Mortgaged Property shall be deposited
and retained, and shall administer such Defeasance Accounts in accordance with
the Mortgage Loan documents. Notwithstanding the foregoing, in no event shall
the Servicer permit such amounts to be maintained in the Defeasance Account for
a period in excess of 90 days, unless such amounts are reinvested by the
Servicer in "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, or any other securities that comply with
Treasury Regulations Section 1.860G-2(a)(8). To the extent not required or
permitted to be placed in a separate account, the Servicer shall deposit all
payments received by it from defeasance collateral substituted for any Mortgaged
Property into the Certificate Account and treat any such payments as payments
made on the Mortgage Loan in advance of its Due Date in accordance with clause
(a)(i) of the definition of Available Distribution Amount, and not as a
prepayment of the related Mortgage Loan. Notwithstanding anything herein to the
contrary, in no event shall the Servicer permit such amounts to be maintained in
the Certificate Account for a period in excess of 365 days.
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Recordkeeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the Servicer shall promptly give notice to
the Special Servicer and the Directing Certificateholder thereof, and shall
deliver the related Mortgage File and Servicing File to the Special Servicer and
shall use its reasonable efforts to provide the Special Servicer with all
information, documents and records (including records stored electronically on
computer tapes, magnetic discs and the like) relating to the Mortgage Loan (and,
if applicable, the related Companion Loan) either in the Servicer's possession
or otherwise available to the Servicer without undue burden or expense, and
reasonably requested by the Special Servicer to enable it to assume its
functions hereunder with respect thereto. The Servicer shall use its reasonable
efforts to comply with the preceding sentence within 5 Business Days of the
occurrence of each related Servicing Transfer Event and in any event shall
continue to act as Servicer and administrator of such Mortgage Loan until the
Special Servicer has commenced the servicing of such Mortgage Loan and, if
applicable, the related Companion Loan. The obligation of the Special Servicer
to service the Mortgage Loan or Companion Loan shall commence upon the delivery
of the related Mortgage File and Servicing File. The Servicer shall deliver to
the Directing Certificateholder and the Paying Agent a copy of the notice of
such Servicing Transfer Event provided by the Servicer to the Special Servicer
pursuant to this Section.
Upon determining that a Specially Serviced Mortgage Loan (other than
an REO Loan) has become current and has remained current for three consecutive
full and timely Monthly Payments (provided that (i) no additional Servicing
Transfer Event is foreseeable in the reasonable judgment of the Special
Servicer, and (ii) for such purposes taking into account any modification or
amendment of such Mortgage Loan and, if applicable, the related Companion Loan),
and that no other Servicing Transfer Event is continuing with respect thereto,
the Special Servicer shall immediately give notice thereof to the Servicer and
the Directing Certificateholder, and shall return the related Mortgage File and
Servicing File to the Servicer (or copies thereof if copies only were delivered
to the Special Servicer) and upon giving such notice, and returning such
Mortgage File and Servicing File to the Servicer, the Special Servicer's
obligation to service such Corrected Mortgage Loan shall terminate and the
obligations of the Servicer to service and administer such Mortgage Loan and, if
applicable, the related Companion Loan, shall recommence.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer will provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (with a
copy of each such original to the Servicer), and provide the Servicer with
copies of any additional related Mortgage Loan information including
correspondence with the related Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), the Servicer
shall maintain ongoing payment records with respect to each of the Specially
Serviced Mortgage Loans and REO Properties and shall provide the Special
Servicer with any information in its possession reasonably required by the
Special Servicer to perform its duties under this Agreement, provided that the
Servicer shall only be required to maintain in such records to the extent the
Special Servicer has provided such information to the Servicer.
(d) No later than 45 days after a Servicing Transfer Event for a
Mortgage Loan (other than the Forum Shops Mortgage Loan), the Special Servicer
shall deliver to the Directing Certificateholder, a report (the "Asset Status
Report") with respect to such Mortgage Loan and the related Mortgaged Property;
provided, however, the Special Servicer shall not be required to deliver an
Asset Status Report to the Directing Certificateholder if they are the same
entity. Such Asset Status Report shall set forth the following information to
the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Servicer for regular servicing or otherwise realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report; provided, however, that the Special Servicer may
not take any action that is contrary to applicable law, the Servicing Standards
or the terms of the applicable Mortgage Loan documents. If the Directing
Certificateholder disapproves such Asset Status Report within 10 Business Days
of receipt, the Special Servicer will revise such Asset Status Report and
deliver to the Directing Certificateholder, a new Asset Status Report as soon as
practicable, but in no event later than 30 days after such disapproval. The
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(d) until the Directing Certificateholder shall fail to
disapprove such revised Asset Status Report in writing within ten (10) Business
Days of receiving such revised Asset Status Report or until the Special Servicer
makes one of the determinations described below. Notwithstanding the foregoing,
in the event the Directing Certificateholder and the Special Servicer have been
unable to agree upon an Asset Status Report with respect to a Specially Serviced
Mortgage Loan within 90 days of the Directing Certificateholder's receipt of the
initial Asset Status Report, the Special Servicer shall implement the actions
described in the most recent Asset Status Report submitted to the Directing
Certificateholder by the Special Servicer. The Special Servicer may, from time
to time, modify any Asset Status Report it has previously delivered and
implement such report, provided such report shall have been prepared, reviewed
and not rejected pursuant to the terms of this Section. Notwithstanding the
foregoing, the Special Servicer (i) may, following the occurrence of an
extraordinary event with respect to the related Mortgaged Property, take any
action set forth in such Asset Status Report before the expiration of any such
ten (10) Business Day period if the Special Servicer has reasonably determined
that failure to take such action would materially and adversely affect the
interests of the Certificateholders or, if a Loan Pair is involved, the
Companion Holder, and it has made a reasonable effort to contact the Directing
Certificateholder and (ii) in any case, shall determine whether such affirmative
disapproval is not in the best interest of all the Certificateholders pursuant
to the Servicing Standards. The Special Servicer shall deliver the final Asset
Status Report to the Servicer, the Mortgage Loan Sellers, each Rating Agency,
the Paying Agent, the Trustee and the Directing Certificateholder, as soon as
practicable, but in any event not later than 10 days after such Asset Status
Report is finalized.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction of the Directing Certificateholder or failure of the
Directing Certificateholder to consent to or approve (including any deemed
consents or approvals) any request of the Special Servicer, shall (a) require or
cause the Special Servicer to violate the terms of a Mortgage Loan, applicable
law or any provision of this Agreement, including the Special Servicer's
obligation to act in accordance with the Servicing Standards and to maintain the
REMIC status of each of the Lower-Tier REMIC and the Upper-Tier REMIC, or (b)
result in the imposition of a "prohibited transaction" or "prohibited
contribution" tax under the REMIC Provisions, or (c) expose the Servicer, the
Special Servicer, the Depositor, the Mortgage Loan Sellers, the Trust Fund, the
Paying Agent the Trustee or their respective officers, directors, employees or
agents to any claim, suit or liability or (d) materially expand the scope of the
Special Servicer's, Trustee's or the Servicer's responsibilities under this
Agreement.
(e) Upon receiving notice of the occurrence of the events described
in clause (v) of the definition Servicing Transfer Event (without regard to the
60 day period set forth therein), the Servicer shall immediately give notice
thereof, and shall deliver copies of the related Mortgage File and Servicing
File (or the applicable portions thereof) to the Special Servicer and shall use
its reasonable efforts to provide the Special Servicer with all information
relating to the Mortgage Loan and reasonably requested by the Special Servicer
to enable it to negotiate with the related Mortgagor and prepare for any such
proceedings. The Servicer shall use its reasonable efforts to comply with the
preceding sentence within 5 Business Days of the occurrence of each such event.
Notwithstanding the foregoing, the occurrence of any event described above shall
not in and of itself be considered a Servicing Transfer Event and, unless an
actual Servicing Transfer Event has occurred with respect to such Mortgage Loan,
the Servicer shall continue to act as Servicer and administrator of such
Mortgage Loan and no fees shall be payable to the Special Servicer with respect
to such Mortgage Loan other than any related modification, assumption or
extension fees provided for herein; provided, however, that in the event a
Mortgage Loan subject to this clause (e) becomes a Specially Serviced Mortgage
Loan, such Mortgage Loan shall be deemed to have been a Specially Serviced
Mortgage Loan upon the occurrence of the events described in clause (v) of the
definition of Servicing Transfer Event (without regard to the 60 day period set
forth therein) and a Special Servicing Fee shall be paid with respect thereto,
commencing on the date the Special Servicer receives copies of the related
Mortgage File and Servicing File.
Section 3.22 Sub-Servicing Agreements.
(a) The Servicer may enter into Sub-Servicing Agreements to provide
for the performance by third parties of any or all of its respective obligations
under this Agreement; provided that the Sub-Servicing Agreement as amended or
modified: (i) is consistent with this Agreement in all material respects and
requires the Sub-Servicer to comply with all of the applicable conditions of
this Agreement; (ii) provides that if the Servicer shall for any reason no
longer act in such capacity hereunder (including, without limitation, by reason
of an Event of Default), the Trustee or its designee shall thereupon assume all
of the rights and, except to the extent they arose prior to the date of
assumption, obligations of the Servicer under such agreement, or, alternatively,
may act in accordance with Section 7.02 hereof under the circumstances described
therein (subject to Section 3.22(g) hereof); (iii) provides that the Trustee for
the benefit of the Certificateholders, the related Companion Holder (if
applicable) and the Trustee (as holder of the Uncertificated Lower-Tier
Interests) shall be a third party beneficiary under such Sub-Servicing
Agreement, but that (except to the extent the Trustee or its designee assumes
the obligations of the Servicer thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trust Fund, the Trustee, the Paying Agent any
successor Servicer or any Certificateholder (or the related Companion Holder, if
applicable) shall have any duties under such Sub-Servicing Agreement or any
liabilities arising therefrom; (iv) permits any purchaser of a Mortgage Loan
pursuant to this Agreement to terminate such Sub-Servicing Agreement with
respect to such purchased Mortgage Loan at its option and without penalty;
provided, however, that the Initial Sub-Servicing Agreements may only be
terminated by the Trustee or its designee as contemplated by Section 3.22(g)
hereof and in such additional manner as is provided in such Sub-Servicing
Agreement; and (v) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund. Any
successor Servicer hereunder shall, upon becoming successor Servicer, be
assigned and shall assume any Sub-Servicing Agreements from the predecessor
Servicer (subject to Section 3.22(g) hereof). In addition, each Sub-Servicing
Agreement entered into by the Servicer may provide that the obligations of the
Sub-Servicer thereunder shall terminate with respect to any Mortgage Loan
serviced thereunder at the time such Mortgage Loan becomes a Specially Serviced
Mortgage Loan; provided, however, that the Sub-Servicing Agreement may provide
that the Sub-Servicer will continue to make all Advances and calculations and
prepare all reports required under the Sub-Servicing Agreement with respect to
Specially Serviced Mortgage Loans and continue to collect its Primary Servicing
Fees as if no Servicing Transfer Event had occurred and with respect to REO
Properties (and the related REO Loans) as if no REO Acquisition had occurred and
to render such incidental services with respect to such Specially Serviced
Mortgage Loans and REO Properties as are specifically provided for in such
Sub-Servicing Agreement. The Servicer shall deliver to the Trustee copies of all
Sub-Servicing Agreements, and any amendments thereto and modifications thereof,
entered into by it promptly upon its execution and delivery of such documents.
References in this Agreement to actions taken or to be taken by the Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the
Servicer; and, in connection therewith, all amounts advanced by any Sub-Servicer
to satisfy the obligations of the Servicer hereunder to make Advances shall be
deemed to have been advanced by the Servicer out of its own funds and,
accordingly, such Advances shall be recoverable by such Sub-Servicer in the same
manner and out of the same funds as if such Sub-Servicer were the Servicer, and,
for so long as they are outstanding, such Advances shall accrue interest in
accordance with Section 3.03(d), such interest to be allocable between the
Servicer and such Sub-Servicer pursuant to the terms of the Sub-Servicing
Agreement. For purposes of this Agreement, the Servicer shall be deemed to have
received any payment when a Sub-Servicer retained by it receives such payment.
The Servicer shall notify the Special Servicer, the Trustee and the Depositor in
writing promptly of the appointment by it of any Sub-Servicer. Except as
otherwise provided herein, the Special Servicer may not enter into Sub-Servicing
Agreements and may not assign any of its servicing obligations hereunder.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to the extent
necessary to ensure the enforceability of the related Mortgage Loans or the
compliance with its obligations under the Sub-Servicing Agreement and the
Servicer's obligations under this Agreement.
(c) As part of its servicing activities hereunder, the Servicer, for
the benefit of the Trustee and the Certificateholders, shall (at no expense to
the Trustee, the Certificateholders or the Trust Fund) monitor the performance
and enforce the obligations of each Sub-Servicer under the related Sub-Servicing
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as is in
accordance with the Servicing Standards. The Servicer shall have the right to
remove a Sub-Servicer retained by it in accordance with the terms of the related
Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Servicer and assumes the rights and obligations of the Servicer under any
Sub-Servicing Agreement, the Servicer, at its expense, shall deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement
and this Section 3.22, the Servicer shall remain obligated and liable to the
Trustee and the Certificateholders for the performance of its obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible, and the Servicer
shall pay the fees of any Sub-Servicer thereunder from its own funds. In no
event shall the Trust Fund bear any termination fee required to be paid to any
Sub-Servicer as a result of such Sub-Servicer's termination under any
Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer.
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Servicer, the Trustee or such
successor Servicer shall have the right to terminate such Sub-Servicing
Agreement with or without cause and without a fee. Notwithstanding the
foregoing, the Trustee and any successor Servicer shall assume the Sub-Servicing
Agreements in effect as of the date hereof (the "Initial Sub-Servicing
Agreements") unless the related Sub-Servicer (an "Initial Sub-Servicer") has
been terminated in accordance with this Section 3.22(g). In the event any
Initial Sub-Servicer is not an acceptable servicer to Xxxxx'x and is not
included on S&P's approved servicer list at the time the Trustee or a successor
Servicer becomes successor Servicer, such Initial Sub-Servicer shall have 30
days after notice from the Trustee or the successor Servicer to cure such
failure. If an Initial Sub-Servicer fails to cure such failure, the Trustee or
the successor Servicer may terminate the Initial Sub-Servicing Agreement.
(h) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not enter into any sub-servicing agreement which provides
for the performance by third parties of any or all of its obligations herein
without the consent of the Directing Certificateholder.
Section 3.23 Representations, Warranties and Covenants of the
Servicer.
(a) The Servicer hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the Depositor,
the Paying Agent and the Special Servicer, as of the Closing Date, that:
(i) The Servicer is a corporation, duly organized, validly existing
and in good standing under the laws of the State of California, and the
Servicer is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Servicer,
and the performance and compliance with the terms of this Agreement by the
Servicer, will not (A) violate the Servicer's organizational documents or
(B) constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other instrument to which it is a party or which
is applicable to it or any of its assets, or (C) violate any law, rule,
regulation, order, judgment or decree to which the Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Servicer to
perform its obligations under this Agreement or its financial condition;
(iii) The Servicer has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Paying Agent the Special Servicer and the
Depositor, constitutes a valid, legal and binding obligation of the
Servicer, enforceable against the Servicer in accordance with the terms
hereof, subject to (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 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, 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 Servicer's good faith and reasonable judgment, is likely
to materially and adversely affect either the ability of the Servicer to
perform its obligations under this Agreement or the financial condition of
the Servicer;
(vi) No litigation is pending or, to the best of the Servicer's
knowledge, threatened against the Servicer, the outcome of which, in the
Servicer's good faith and reasonable judgment, could reasonably be
expected to prohibit the Servicer from entering into this Agreement or
materially and adversely affect either the ability of the Servicer to
perform its obligations under this Agreement;
(vii) The Servicer has errors and omissions insurance coverage which
is in full force and effect and complies with the requirements of Section
3.07 hereof;
(viii) No consent, approval, authorization or order, registration,
filing with or notice to any governmental authority or court is required
under federal or state law, for the execution, delivery and performance by
the Servicer, or compliance by the Servicer with, this Agreement or the
consummation of any transactions contemplated hereby, other than (A) such
consents, approvals, authorizations, qualifications, registrations,
filings or notices as have been obtained or made and (B) where the lack of
such consent, approval, authorization, qualification, registration, filing
or notice would not have a material adverse effect on the performance by
the Servicer under this Agreement; and
(ix) The Servicer has full power and authority to enter into and
consummate all transactions to be performed by it contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer.
(a) The Special Servicer hereby represents, warrants and covenants
to the Trustee, for its own benefit and the benefit of the Certificateholders,
and to the Paying Agent the Depositor and the Servicer, as of the Closing Date,
that:
(i) The Special Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, does not (A) violate the Special
Servicer's certificate of incorporation and by-laws or (B) constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or which is
applicable to it or any of its assets, or (C) violate any law, rule,
regulation, order, judgment or decree to which the Special Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or its financial
condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it contemplated by
this Agreement, has duly authorized the execution, delivery and
performance by it of this Agreement, and has duly executed and delivered
this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Paying Agent, the Servicer and the Depositor,
constitutes a valid, legal and binding obligation of the Special Servicer,
enforceable against the Special Servicer in accordance with the terms
hereof, subject to applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally, and general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, municipal or governmental agency, which default, in
the Special Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer;
(vii) Each officer or employee of the Special Servicer that has or,
following the occurrence of a Servicing Transfer Event, would have
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c);
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Special Servicer, or compliance by the Special Servicer
with, this Agreement or the consummation of the transactions of the
Special Servicer contemplated by this Agreement, except for any consent,
approval, authorization or order which has been obtained, or which, if not
obtained would not have a materially adverse effect on the ability of the
Special Servicer to perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Interest Reserve Account.
(a) On each P&I Advance Date relating to any Interest Accrual Period
ending in any January and on any P&I Advance Date which occurs in a year which
is not a leap year relating to any Interest Accrual Period ending in any
December, the Paying Agent, in respect of the Actual/360 Mortgage Loans, shall
deposit into the Interest Reserve Account, an amount equal to one day's interest
on the Stated Principal Balance of the Interest Reserve Loans as of the Due Date
occurring in the month preceding the month in which such P&I Advance Date occurs
at the related Net Mortgage Rate, to the extent a full Monthly Payment or P&I
Advance is made in respect thereof (all amounts so deposited in any consecutive
February and January, "Withheld Amounts").
(b) On each P&I Advance Date occurring in March, the Paying Agent
shall withdraw, from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January (if applicable) and February, if
any, and deposit such amount into the Lower-Tier Distribution Account.
Section 3.26 Excess Interest Distribution Account.
Prior to the applicable Distribution Date, the Servicer is required
to remit to the Paying Agent for deposit into the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the related Due
Period.
Section 3.27 Directing Certificateholder Contact with Servicer.
No less often than on a monthly basis or as agreed upon by the
Servicer, the Special Servicer and the Directing Certificateholder, each of the
Servicer and the Special Servicer shall, without charge, make a knowledgeable
Servicing Officer available via telephone to answer questions from the Directing
Certificateholder regarding the performance and servicing of the Mortgage Loans
and/or REO Properties for which the Servicer or the Special Servicer, as the
case may be, is responsible.
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder.
(a) Each Controlling Class Certificateholder is hereby deemed to
have agreed by virtue of its purchase of a Certificate to provide its name and
address to the Paying Agent and to notify the Paying Agent, the Servicer,
Special Servicer and Trustee of the transfer of any Certificate of a Controlling
Class, the selection of a Directing Certificateholder or the resignation or
removal thereof. The Directing Certificateholder is hereby deemed to have agreed
by virtue of its purchase of a Certificate to notify the Paying Agent Servicer,
Special Servicer and Trustee when such Certificateholder is appointed Directing
Certificateholder and when it is removed or resigns. To the extent there is only
one Controlling Class Certificateholder and it is also the Special Servicer, it
shall be the Directing Certificateholder.
(b) A "Controlling Class" as of any time of determination shall be
the Class outstanding with the most subordinate Class of Regular Certificates
having at least 25% of its initial Certificate Balance.
(c) Once a Directing Certificateholder has been selected, each of
the Servicer, the Special Servicer, the Depositor, the Trustee, the Paying Agent
and each other Certificateholder (or Certificate Owner, if applicable) shall be
entitled to rely on such selection unless a majority of the Controlling Class
Certificateholders, by Certificate Balance, or such Directing Certificateholder
shall have notified the Paying Agent, Servicer, Special Servicer and Trustee and
each other Controlling Class Certificateholder, in writing, of the resignation
of such Directing Certificateholder or the selection of a new Directing
Certificateholder. Upon the resignation of a Directing Certificateholder, the
Paying Agent shall request the Controlling Class Certificateholders to select a
new Directing Certificateholder.
(d) Until it receives notice to the contrary each of the Servicer
and the Trustee shall be entitled to rely on the most recent notification with
respect to the identity of the Controlling Class Certificateholder and the
Directing Certificateholder.
(e) Within 30 days of the Closing Date, the Paying Agent shall
deliver to the Special Servicer and the Servicer a list of each Controlling
Class Certificateholder and the Directing Certificateholder, including names and
addresses. In addition to the foregoing, within two (2) Business Days of
receiving notice of the selection of a new Directing Certificateholder or the
existence of a new Controlling Class Certificateholder, the Paying Agent shall
notify the Servicer and the Special Servicer.
First Chicago Capital Corporation shall be the initial Directing
Certificateholder and shall remain so until a successor is appointed pursuant to
the terms of this Agreement. Until it receives notice to the contrary, each of
the Servicer, the Special Servicer, the Paying Agent and the Trustee shall be
entitled to rely on the preceding sentence with respect to the identity of the
Directing Certificateholder.
(f) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Paying Agent shall notify the related Certificateholders (through the
Depository, unless the Paying Agent shall have been previously provided with the
name and address of such Certificateholder) of such event and shall request that
it be informed of any change in the identity of the related Certificate Owner
from time to time.
(g) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Certificateholder may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Directing Certificateholder does not have any duties to the Holders of any Class
of Certificates other than the Controlling Class; (iv) the Directing
Certificateholder may take actions that favor interests of the Holders of the
Controlling Class over the interests of the Holders of one or more other Classes
of Certificates; (v) the Directing Certificateholder will not be deemed to have
been negligent or reckless, or to have acted in bad faith or engaged in willful
misconduct, by reason of its having so acted, absent willful misfeasance, bad
faith or negligence; (vi) the Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted; and (vii) the
taking of, or refraining from taking, any action by the Servicer or the Special
Servicer in accordance with the direction of or approval of the Directing
Certificateholder, which does not violate any law or the Servicing Standards or
the provisions of this Agreement, will not result in any liability on the part
of the Servicer or the Special Servicer.
(h) Until it receives notice to the contrary, each of the Servicer,
the Special Servicer, the Paying Agent and the Trustee shall be entitled to rely
on the most recent notification with respect to the identity of the Controlling
Class Certificateholder and the Directing Certificateholder.
Section 3.29 Intercreditor Agreements and Mezzanine Intercreditor
Agreements.
(a) Each of the Servicer and Special Servicer acknowledges and
agrees that each Loan Pair being serviced under this Agreement is subject to the
terms and provisions of the related Intercreditor Agreement and each agrees to
service each Loan Pair in accordance with the related Intercreditor Agreement
and this Agreement, including, without limitation, effecting distributions and
allocating reimbursement of expenses in accordance with the related
Intercreditor Agreement. Notwithstanding anything contrary in this Agreement,
each of the Servicer and Special Servicer agrees not to take any action with
respect to a Loan Pair or the related Mortgaged Property without the prior
consent of the related Companion Holder to the extent that the related
Intercreditor Agreement provides that such Companion Holder is required to
consent to such action. Each of the Servicer and Special Servicer acknowledges
and agrees that each Companion Holder has the right to cure certain defaults
with respect to the related AB Mortgage Loan and to purchase the related AB
Mortgage Loan in each case, to the extent set forth in, and pursuant to the
terms and conditions of, the related Intercreditor Agreement.
(b) Each of the Servicer and Special Servicer acknowledges and
agrees that the Harbor Plaza Mortgage Loan and the PHH Vehicle Management
Services Mortgage Loan being serviced under this Agreement is subject to the
terms and provisions of the related Mezzanine Intercreditor Agreement and each
agrees to service the Harbor Plaza Mortgage Loan and the PHH Vehicle Management
Services Mortgage Loan in accordance with the related Mezzanine Intercreditor
Agreement and this Agreement, including, without limitation, effecting
distributions and allocating reimbursement of expenses in accordance with the
related Mezzanine Intercreditor Agreement. Notwithstanding anything contrary in
this Agreement, each of the Servicer and Special Servicer agrees not to take any
action with respect to the Harbor Plaza Mortgage Loan and the PHH Vehicle
Management Services Mortgage Loan or the related Mortgaged Property without the
prior consent of the related Mezzanine Lender to the extent that the related
Intercreditor Agreement provides that such Mezzanine Lender is required to
consent to such action. Each of the Servicer and Special Servicer acknowledges
and agrees that each Mezzanine Lender has the right to cure certain defaults
with respect to the related mezzanine loan and to purchase the related mezzanine
loan in each case, to the extent set forth in, and pursuant to the terms and
conditions of, the related Mezzanine Intercreditor Agreement.
(c) Neither the Servicer nor the Special Servicer shall have any
liability for any cost, claim or damage that arises from any conflict between
the terms of this Agreement and the terms of an Intercreditor Agreement or
Mezzanine Intercreditor Agreement. Notwithstanding any provision of an
Intercreditor Agreement or Mezzanine Intercreditor Agreement that may otherwise
require the Servicer or the Special Servicer to abide by any instruction or
direction of a Companion Holder or Mezzanine Lender, as applicable, neither the
Servicer nor the Special Servicer shall be required to comply with any
instruction or direction the compliance with which requires an Advance that
constitutes or would constitute a Nonrecoverable Advance. In no event shall the
Servicer or the Special Servicer be required to consult with or obtain the
consent of any Companion Holder or Mezzanine Lender, unless such Companion
Holder or Mezzanine Lender, as applicable, has delivered notice of its identity
and contact information to each of the parties to this Agreement (upon which
notice each of the parties to this Agreement shall be conclusively entitled to
rely). As of the Closing Date, the contact information for the Companion Holders
and Mezzanine Lenders is set forth in Section 11.05 under this Agreement.
Section 3.30 Companion Paying Agent.
(a) The Servicer shall be the Companion Paying Agent hereunder. The
Companion Paying Agent undertakes to perform such duties and only such duties as
are specifically set forth herein. The Companion Paying Agent shall promptly
make available all reports delivered to it under this Agreement to the Companion
Holder.
(b) No provision of this Agreement shall be construed to relieve the
Companion Paying Agent from liability for its own negligent failure to act, bad
faith, or its own willful misfeasance; provided, however, that the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement, the Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against the Companion
Paying Agent and, in the absence of bad faith on the part of the Companion
Paying Agent, the Companion Paying Agent may conclusively rely, as to the truth
and correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to the Companion Paying Agent by any Person and which
on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the Servicer pursuant to
Article VII of this Agreement, the Companion Paying Agent shall be deemed
simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of the Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.31 Companion Register.
(a) The Companion Paying Agent shall maintain a register (the
"Companion Register") on which it will record the names and addresses of, and
wire transfer instructions for, the Companion Holders from time to time, to the
extent such information is provided in writing to it by each Companion Holder.
The initial Companion Holders, along with their respective name, address, wiring
instructions and tax identification number of the Companion Holder, are listed
on Exhibit W hereto. The Companion Holders shall inform the Companion Paying
Agent of the name, address, wiring instructions and taxpayer identification
number of any subsequent Companion Holder upon any transfer of the Companion
Loan. Upon the sale of a Companion Loan or portion thereof, the transferring
Companion Holder shall inform the Companion Paying Agent in writing that such
transfer has taken place and provide the Companion Paying Agent with the name,
address, wiring instructions and tax identification number of the transferee. In
the event a Companion Holder transfers the related Companion Loan without notice
to the Companion Paying Agent, the Companion Paying Agent shall have no
liability for any misdirected payment in the related Companion Loan and shall
have no obligation to recover and redirect such payment.
(b) The Companion Paying Agent shall promptly provide the name and
address of the Companion Holder to any party hereto or any successor Companion
Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such names
and addresses.
Section 3.32 Certain Matters Relating to the Forum Shops Mortgage
Loan.
(a) In the event that any of the Forum Shops Trustee, the Forum
Shops Primary Servicer or the Forum Shops Special Servicer shall be replaced in
accordance with the terms of the Forum Shops Pooling Agreement, the Servicer and
the Special Servicer shall acknowledge its successor as the successor to the
Forum Shops Trustee, the Forum Shops Primary Servicer or the Forum Shops Special
Servicer, as the case may be.
(b) In the event the Trustee, as holder of the Forum Shops Mortgage
Loan, becomes entitled to exercise the rights of the Forum Shops Controlling
Companion Loan Noteholder, it shall do so at the direction of the Directing
Certificateholder in accordance with the terms of the Forum Shops Intercreditor
Agreement.
(c) The Servicer shall deliver, or cause to be delivered, to the
Paying Agent, promptly following receipt from the Forum Shops Primary Servicer,
the Forum Shops Special Servicer or the Forum Shops Trustee, any servicing
reports concerning the Forum Shops Whole Loan.
Section 3.33 Xxxxx Town Center Loan.
(a) Upon the enactment of the Puerto Rico Tax Legislation, CIBC Inc.
shall have the option, exercisable in its sole discretion, to make Xxxxx
Xxxxx-Up Payments that are required to be made by the Mortgagor under the terms
of the loan agreement for the Xxxxx Town Center Loan, to the extent the
Mortgagor fails to make such payments.
(b) CIBC Inc. shall have the option, exercisable in its sole
discretion, to purchase the Xxxxx Town Center Loan at a price equal to the
Purchase Price for such Mortgage Loan upon the enactment of the Puerto Rico Tax
Legislation, so long as an event of default under the Xxxxx Town Center Loan has
occurred and is continuing.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Paying Agent shall be deemed
to transfer the Lower-Tier Regular Distribution Amount from the Lower-Tier
Distribution Account to the Upper-Tier Distribution Account in the amounts and
priorities set forth in Section 4.01(b) with respect to each Class of
Uncertificated Lower-Tier Interests, and immediately thereafter, shall make
distributions thereof from the Upper-Tier Distribution Account in the following
order of priority, satisfying in full, to the extent required and possible, each
priority before making any distribution with respect to any succeeding priority:
(i) first, concurrently (A) to the Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates and
the Class A-4 Certificates, pro rata, (based upon their respective
entitlements to interest for such Distribution Date), in respect of
interest, from the Loan Group 1 Available Distribution Amount and up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Classes of Certificates for such Distribution Date, (B) to the
Holders of the Class A-1A Certificates, in respect of interest, from the
Loan Group 2 Available Distribution Amount and up to an amount equal to
the aggregate Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date and (C) to the Holders of the
Class X-1 and Class X-2 Certificates, in respect of interest, up to an
amount equal to the Interest Distribution Amount payable in respect of
such Classes of Certificates for such Distribution Date; provided,
however, that if the Loan Group 1 Available Distribution Amount and/or the
Loan Group 2 Available Distribution Amount is insufficient to pay in full
the Interest Distribution Amount provided above, payable in respect of any
Class A or Class X Certificates on such Distribution Date, then the entire
Available Distribution Amount shall be applied to make distributions of
interest to the Holders of the respective Classes of the Class A and Class
X Certificates, up to an amount equal to, and pro rata as among such
Classes in accordance with, the Interest Distribution Amount in respect of
each such Class of Certificates for such Distribution Date;
(ii) second, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates, the Class A-3 Certificates, the Class A-4 Certificates
and the Class A-1A Certificates in reduction of the Certificate Balances
thereof: (A) (1) to the Holders of the Class A-1 Certificates, in an
amount equal to the Loan Group 1 Principal Distribution Amount and, after
the outstanding Certificate Balance of the Class A-1A Certificates has
been reduced to zero, the Loan Group 2 Principal Distribution Amount
remaining after payments to the Holders of the Class A-1A Certificates
have been made on such Distribution Date, until the outstanding
Certificate Balance of the Class A-1 Certificates has been reduced to
zero, (2) to the holders of the Class A-2 Certificates, in an amount up to
the Loan Group 1 Principal Distribution Amount and, after the outstanding
Certificate Balances of the Class A-1A Certificates have been reduced to
zero, the Loan Group 2 Principal Distribution Amount remaining after
payments to the Holders of the Class A-1A and Class A-1 Certificates have
been made on such Distribution Date, until the outstanding Certificate
Balance of the Class A-2 Certificates has been reduced to zero; (3) to the
holders of the Class A-3 Certificates, in an amount up to the Loan Group 1
Principal Distribution Amount and, after the outstanding Certificate
Balances of the Class A-1A Certificates have been reduced to zero, the
Loan Group 2 Principal Distribution Amount remaining after payments to the
Holders of the Class A-1A, Class A-1 and Class A-2 Certificates have been
made on such Distribution Date, until the outstanding Certificate Balance
of the Class A-3 Certificates has been reduced to zero and then (4) to the
holders of the Class A-4 Certificates, in an amount up to the Loan Group 1
Principal Distribution Amount and, after the outstanding Certificate
Balances of the Class A-1A Certificates have been reduced to zero, the
Loan Group 2 Principal Distribution Amount remaining after payments to the
Holders of the Class A-1A, Class A-1, Class A-2 and Class A-3 Certificates
have been made on such Distribution Date, until the outstanding
Certificate Balance of the Class A-4 Certificates has been reduced to
zero; and (B) to the Holders of the Class A-1A Certificates, in an amount
up to the Loan Group 2 Principal Distribution Amount and, after the
Certificate Balance of the Class A-4 Certificates has been reduced to
zero, the Loan Group 1 Principal Distribution Amount remaining after
payments to the Holders of the Class A-1, Class A-2, Class A-3 and Class
A-4 Certificates have been made on such Distribution Date, until the
Certificate Balance of the Class A-1A Certificates has been reduced to
zero;
(iii) third, to the Holders of the Class A-1, Class A-2, Class A-3,
Class A-4 and the Class A-1A Certificates pro rata (based upon the
aggregate unreimbursed Collateral Support Deficit allocated to each such
Class), until all amounts of Collateral Support Deficit previously
allocated to such Classes, but not previously reimbursed, have been
reimbursed in full;
(iv) fourth, to the Holders of the Class B Certificates, in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(v) fifth, after the Certificate Balances of the Class A
Certificates have been reduced to zero, to the Holders of the Class B
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
on such Distribution Date), until the outstanding Certificate Balance of
the Class B Certificates has been reduced to zero;
(vi) sixth, to the Holders of the Class B Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class B
Certificates, but not previously reimbursed, have been reimbursed in full;
(vii) seventh, to the Holders of the Class C Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(viii) eighth, after the Certificate Balances of the Class A and
Class B Certificates have been reduced to zero, to the Holders of the
Class C Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A and Class B
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class C Certificates has been reduced to zero;
(ix) ninth, to the Holders of the Class C Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class C
Certificates, but not previously reimbursed, have been reimbursed in full;
(x) tenth, to the Holders of the Class D Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, after the Certificate Balances of the Class A, Class
B and Class C Certificates have been reduced to zero, to the Holders of
the Class D Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A, Class
B and Class C Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class D Certificates has been
reduced to zero;
(xii) twelfth, to the Holders of the Class D Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class D
Certificates, but not previously reimbursed, have been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A,
Class B, Class C and Class D Certificates have been reduced to zero, to
the Holders of the Class E Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A, Class B, Class C and Class D Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class E
Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of the Class E Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class E Certificates, but not previously reimbursed, have been reimbursed
in full;
(xvi) sixteenth, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class A,
Class B, Class C, Class D and Class E Certificates have been reduced to
zero, to the Holders of the Class F Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A, Class B, Class C, Class D and Class E Certificates
on such Distribution Date), until the outstanding Certificate Balance of
the Class F Certificates has been reduced to zero;
(xviii) eighteenth, to the Holders of the Class F Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class F Certificates, but not previously reimbursed, have been
reimbursed in full;
(xix) nineteenth, to the Holders of the Class G Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A, Class
B, Class C, Class D, Class E and Class F Certificates have been reduced to
zero, to the Holders of the Class G Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A, Class B, Class C, Class D, Class E and Class F
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class G Certificates has been reduced to zero;
(xxi) twenty-first, to the Holders of the Class G Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class G Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxii) twenty-second, to the Holders of the Class H Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F and Class G Certificates have
been reduced to zero, to the Holders of the Class H Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C, Class D, Class
E, Class F and Class G Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class H Certificates has been
reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class H Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class H Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class J Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been reduced to zero, to the Holders of the Class J
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G and Class H Certificates on
such Distribution Date), until the outstanding Certificate Balance of the
Class J Certificates has been reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class J Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class J Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxviii) twenty-eighth, to the Holders of the Class K Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates have been reduced to zero, to the Holders of the Class K
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class K Certificates has been reduced to zero;
(xxx) thirtieth, to the Holders of the Class K Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class K Certificates, but not previously reimbursed, have been reimbursed
in full;
(xxxi) thirty-first, to the Holders of the Class L Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J
and Class K Certificates have been reduced to zero, to the Holders of the
Class L Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class L Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class L Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class L Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxiv) thirty-fourth, to the Holders of the Class M Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxv) thirty-fifth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and Class L Certificates have been reduced to zero, to the Holders
of the Class M Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and Class L Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class M Certificates has been
reduced to zero;
(xxxvi) thirty-sixth, to the Holders of the Class M Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class M Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxvii) thirty-seventh, to the Holders of the Class N Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxviii) thirty-eighth, after the Certificate Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L and Class M Certificates have been reduced to zero, to
the Holders of the Class N Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L and Class M Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class N
Certificates has been reduced to zero;
(xxxix) thirty-ninth, to the Holders of the Class N Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class N Certificates, but not previously reimbursed, have been
reimbursed in full;
(xl) fortieth, to the Holders of the Class P Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xli) forty-first, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M and Class N Certificates have been reduced to
zero, the Holders of the Class P Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M and Class N Certificates on
such Distribution Date), until the outstanding Certificate Balance of the
Class P Certificates has been reduced to zero;
(xlii) forty-second, to the Holders of the Class P Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class P Certificates, but not previously reimbursed, have been
reimbursed in full;
(xliii) forty-third, to the Holders of the Class NR Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xliv) forty-fourth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N and Class P Certificates have been
reduced to zero, to the Holders of the Class NR Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N
and Class P Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class NR Certificates has been reduced to zero;
(xlv) forty-fifth, to the Holders of the Class NR Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class NR Certificates, but not previously reimbursed, have been
reimbursed in full; and
(xlvi) forty-sixth, to the Holders of the Class R Certificates, the
amount, if any, of the Available Distribution Amount remaining in the
Upper-Tier Distribution Account with respect to such Distribution Date.
If, in connection with any Distribution Date, the Paying Agent has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional balloon payments or
unscheduled principal payments are subsequently received, the Paying Agent will
use commercially reasonable efforts to cause DTC to make the revised
distribution on a timely basis on such Distribution Date. Neither the Paying
Agent, the Servicer nor the Special Servicer shall be liable or held responsible
for any resulting delay in the making of such distribution to Certificateholders
solely on the basis of the actions described in the preceding sentence.
Notwithstanding the foregoing, on and after the Distribution Date on
which the Certificate Balances of the Subordinate Certificates have all been
reduced to zero, the Principal Distribution Amount will be distributed to the
Class A-1, Class A-2, Class A-3, Class A-4 and Class A-1A Certificates, pro
rata, without regard to Loan Group, based on their respective Certificate
Balances immediately prior to such Distribution Date, in reduction of their
respective Certificate Balances, until the Certificate Balance of each such
Class is reduced to zero, and any amounts representing reimbursements of
Collateral Support Deficits previously allocated to such Classes, if available,
will be distributed pro rata based on their respective Certificate Balances,
without regard to Loan Group.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of principal or
reimbursement of Collateral Support Deficit in an amount equal to the amount of
principal or reimbursement of Collateral Support Deficit actually distributable
to its respective Related Certificates as provided in Sections 4.01(a), (c) and
(d) (in the case of (i) the Class A-1 Certificates, first to the Class LA-1-1
Uncertificated Interest, second to the Class LA-1-2 Uncertificated Interest and
third to the Class LA-1-3 Uncertificated Interest, in each case, until reduced
to zero, (ii) the Class A-2 Certificates, first to the Class LA-2-1
Uncertificated Interest, second to the Class LA-2-2 Uncertificated Interest,
third to the Class LA-2-3 Uncertificated Interest, fourth to the Class LA-2-4
Uncertificated Interest and fifth to the Class LA-2-5 Uncertificated Interest,
in each case, until reduced to zero, (iii) the Class A-4 Certificates, first to
the Class LA-4-1 Uncertificated Interest and second to the Class LA-4-2
Uncertificated Interest, in each case, until reduced to zero, (iv) the Class
A-1A Certificates, first to the LA-1A-1 Uncertificated Interest, second to the
Class LA-1A-2 Uncertificated Interest, third to the Class LA-1A-3 Uncertificated
Interest, fourth to the Class LA-1A-4 Uncertificated Interest, fifth to the
Class LA-1A-5 Uncertificated Interest, sixth to the Class LA-1A-6 Uncertificated
Interest, seventh to the Class LA-1A-7 Uncertificated Interest and eighth to the
Class LA-1A-8 Uncertificated Interest, in each case, until reduced to zero, (v)
the Class E Certificates, first to the Class LE-1 Uncertificated Interest and
second to the Class LE-2 Uncertificated Interest, in each case, until reduced to
zero, (vi) the Class F Certificates, first to the Class LF-1 Uncertificated
Interest and second to the Class LF-2 Uncertificated Interest, in each case,
until reduced to zero, (vii) the Class G Certificates, first to the Class LG-1
Uncertificated Interest and second to the Class LG-2 Uncertificated Interest, in
each case, until reduced to zero, (viii) the Class H Certificates, first to the
Class LH-1 Uncertificated Interest and second to the Class LH-2 Uncertificated
Interest, in each case, until reduced to zero, and (ix) the Class K
Certificates, first to the Class LK-1 Uncertificated Interest and second to the
Class LK-2 Uncertificated Interest, in each case, until reduced to zero). On
each Distribution Date, each Uncertificated Lower-Tier Interest shall be deemed
to receive distributions in respect of interest in an amount equal to the
Interest Distribution Amount in respect of its Related Certificates (in the case
of each of (i) the Class LA-1-1, Class LA-1-2 and Class LA-1-3 Uncertificated
Interests, (ii) the Class LA-2-1, Class LA-2-2, Class LA-2-3, Class LA-2-4 and
Class LA-2-5 Uncertificated Interests, (iii) the Class LA-4-1 and Class LA-4-2
Uncertificated Interests, (iv) the Class LA-1A-1, Class LA-1A-2, Class LA-1A-3,
Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7 and Class LA-1A-8
Uncertificated Interests, (v) the Class LE-1 and Class LE-2 Uncertificated
Interests, (vi) the Class LF-1 and Class LF-2 Uncertificated Interests (vii) the
Class LG-1 and Class LG-2 Uncertificated Interests, (viii) the Class LH-1 and
Class LH-2 Uncertificated Interests and (ix) the Class LK-1 and Class LK-2
Uncertificated Interests, pro rata, based on their respective Certificate
Balances) and its Related Component of Class X Certificates, in each case to the
extent actually distributable thereon as provided in Section 4.01(a). For this
purpose, interest distributed on the Class X-1 Certificates and Class X-2
Certificates shall be treated as having been paid to their respective
Components, pro rata, based on the interest accrued with respect thereto at its
Class X-1 Strip Rate or Class X-2 Strip Rate. Such amounts distributed to the
Uncertificated Lower-Tier Interests in respect of principal and interest with
respect to any Distribution Date are referred to herein collectively as the
"Lower-Tier Regular Distribution Amount," and shall be made by the Paying Agent
by deeming such Lower-Tier Regular Distribution Amount to be deposited in the
Upper-Tier Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest shall equal the Certificate Balance of the Related
Certificates with respect thereto (in the case of the aggregate of (i) the Class
LA-1-1, Class LA-1-2 and Class LA-1-3 Uncertificated Interests, the Class A-1
Certificates, (ii) the Class LA-2-1, Class LA-2-2, Class LA-2-3, Class LA-2-4
and Class LA-2-5 Uncertificated Interests, the Class A-2 Certificates, (iii) the
Class LA-4-1 and Class LA-4-2 Uncertificated Interests, the Class A-4
Certificates, (iv) the Class LA-1A-1, Class LA-1A-2, Class LA-1A-3, Class
LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7 and Class LA-1A-8
Uncertificated Interests, the Class A-1A Certificates, (v) the Class LE-1 and
Class LE-2 Uncertificated Interests, the Class E Certificates, (vi) the Class
LF-1 and Class LF-2 Uncertificated Interests, the Class F Certificates, (vii)
the Class LG-1 and Class LG-2 Uncertificated Interests, the Class G
Certificates, (viii) the Class LH-1 and Class LH-2 Uncertificated Interests, the
Class H Certificates and (ix) the Class LK-1 and Class LK-2 Uncertificated
Interests, the Class K Certificates), as adjusted for the allocation of
Collateral Support Deficits, as provided in Sections 4.04(b), 4.04(c) and
4.04(d) and of Certificate Deferred Interest as provided in Section 4.05. The
initial principal balance of each Uncertificated Lower-Tier Interest shall equal
the respective Original Lower-Tier Principal Amount. The pass-through rate with
respect to each Uncertificated Lower-Tier Interest shall be the interest rate
per annum set forth in the Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Regular Distribution
Amount and distribution of Yield Maintenance Charges pursuant to Section
4.01(d)(iii) shall be distributed to the Holders of the Class LR Certificates in
respect of the residual interest in the Lower-Tier REMIC (but only to the extent
of the Available Distribution Amount for such Distribution Date remaining in the
Lower-Tier Distribution Account, if any).
(c) On and after the Distribution Date on which the Certificate
Balances of the Subordinate Certificates have all been reduced to zero (without
regard to any amounts of Collateral Support Deficit remaining unreimbursed), the
Principal Distribution Amount will be distributed, pro rata (based upon
Certificate Balances), among the Class A-1, Class A-2, Class A-3, Class A-4 and
Class A-1A Certificates without regard to the priorities set forth in Section
4.01(a)(ii).
(d) (i) On each Distribution Date, Yield Maintenance Charges
calculated by reference to a U.S. treasury rate collected during the related Due
Period will be distributed by the Paying Agent to the following Classes: to the
Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class
A-4 Certificates, Class A-1A Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates and Class H Certificates, with respect to the related Loan
Group on each Distribution Date, in an amount equal to the product of (a) a
fraction whose numerator is the amount distributed as principal to such Class on
such Distribution Date, and whose denominator is the total amount distributed as
principal to the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates, Class A-1A Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates, Class P Certificates and Class NR Certificates on such
Distribution Date, (b) the Base Interest Fraction for the related principal
payment on such Class of Certificates, and (c) the aggregate amount of Yield
Maintenance Charges calculated by reference to a U.S. treasury rate collected on
such principal prepayments during the related Due Period. If more than one such
Class of Certificates is entitled to distributions of principal with respect to
the related Loan Group on any particular Distribution Date on which Yield
Maintenance Charges are distributable, the aggregate amount of such Yield
Maintenance Charges will be allocated among all such Classes up to, and on a pro
rata basis in accordance with, their respective entitlements thereto in
accordance with this Section 4.01(e)(i). Any Yield Maintenance Charge collected
during the related Due Period remaining after such distributions will be
distributed to the holders of the Class X-1 Certificates. Notwithstanding the
foregoing, any prepayment premiums collected that are calculated under the
related Mortgage Loan documents as a specified percentage of the amount being
prepaid will be distributed to the Class X-1 Certificates entirely.
(ii) No Yield Maintenance Charge will be distributed to the holders
of the Class J, Class K, Class L, Class M, Class N, Class P, Class NR or
Residual Certificates. After the Certificate Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-1A Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E, Class F, Class G and Class H
Certificates have been reduced to zero, all Yield Maintenance Charges with
respect to the Mortgage Loans shall be distributed to the holders of the
Class X-1 Certificates.
(iii) All distributions of Yield Maintenance Charges made in respect
of the respective Classes of Regular Certificates on each Distribution
Date pursuant to Section 4.01(e)(i) shall first be deemed to be
distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect
of the Uncertificated Lower-Tier Interests, pro rata based upon the amount
of principal distributed in respect of each Class of Uncertificated
Lower-Tier Interests for such Distribution Date pursuant to Section
4.01(b) above.
(e) On each Distribution Date, the Paying Agent shall withdraw
amounts from the Gain-on-Sale Reserve Account and shall distribute such amounts
to reimburse the Holders of the Regular Certificates (in order of alphabetical
Class designation) up to an amount equal to all Collateral Support Deficits, if
any, previously deemed allocated to them and unreimbursed after application of
the Available Distribution Amount for such Distribution Date. Amounts paid from
the Gain-on-Sale Reserve Account will not reduce the Certificate Balances of the
Classes receiving such distributions. Any amounts remaining in the Gain-on-Sale
Reserve Account after such distributions shall be applied to offset future
Collateral Support Deficits and related Collateral Support Deficits and upon
termination of the Trust Fund, any amounts remaining in the Gain-on-Sale Reserve
Account shall be distributed to the Class LR Certificateholders.
(f) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise specifically provided in Sections 4.01(f),
4.01(h) and 9.01, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates) or otherwise mailed by check to
the Certificateholder. The final distribution on each Certificate (determined
without regard to any possible future reimbursement of Collateral Support
Deficit previously allocated to such Certificate) will be made in like manner,
but only upon presentation and surrender of such Certificate at the offices of
the Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Paying Agent, the
Trustee, the Certificate Registrar, the Depositor, the Servicer, the Special
Servicer or the Underwriters shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Paying Agent expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Paying Agent
shall, no later than the related P&I Advance Determination Date, mail to each
Holder on such date of such Class of Certificates a notice to the effect that:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at the
offices of the Certificate Registrar or such other location therein
specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(h) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee or the Paying Agent as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(h).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) or Section 4.01(d), as applicable, to
the Holders of the respective Class otherwise entitled to distributions of
interest and principal on such Class on the relevant Distribution Date; provided
that all distributions in reimbursement of Collateral Support Deficit previously
allocated to a Class of Certificates which has since been retired shall be to
the prior Holders that surrendered the Certificates of such Class upon
retirement thereof and shall be made by check mailed to the address of each such
prior Holder last shown in the Certificate Register. Notice of any such
distribution to a prior Holder shall be made in accordance with Section 11.05 at
such last address. The amount of the distribution to each such prior Holder
shall be based upon the aggregate Percentage Interest evidenced by the
Certificates surrendered thereby. If the check mailed to any such prior Holder
is returned uncashed, then the amount thereof shall be set aside and held
uninvested in trust for the benefit of such prior Holder, and the Paying Agent
shall attempt to contact such prior Holder in the manner contemplated by Section
4.01(h) as if such Holder had failed to surrender its Certificates.
(i) On each Distribution Date, the Paying Agent shall distribute any
Excess Interest received during the related Due Period with respect to the
Mortgage Loans to the holders of the Class NR Certificates from the Excess
Interest Distribution Account.
(j) Reserved.
(k) On each Distribution Date, the Companion Paying Agent (based
upon a statement of the Servicer to be delivered to the Paying Agent and the
Companion Paying Agent that specifies the amount required to be deposited in the
Companion Distribution Account and any amounts payable to the Servicer from the
Companion Distribution Account pursuant to this Section 4.01(k)) shall make
withdrawals and payments from the Companion Distribution Account for the related
Companion Loans in the following order of priority:
(i) to pay the Servicer, Special Servicer, Trustee or the Paying
Agent or any of their directors, officers, employees and agents, as the
case may be, any amounts payable or reimbursable to any such Person
hereunder, to the extent any such amounts relate solely to a Loan Pair;
(ii) to pay the Servicer any amounts deposited by the Servicer in
the Companion Distribution Account not required to be deposited therein;
(iii) on each Distribution Date, to pay all amounts remaining in the
Companion Distribution Account to the related Companion Holders; and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
All distributions from the Companion Distribution Account required
hereunder shall be made by the Companion Paying Agent to the related Companion
Holders by wire transfer in immediately available funds to the account of such
Companion Holders or an agent therefor appearing on the Companion Register on
the related Record Date (or, if no such account so appears or information
relating thereto is not provided at least five Business Days prior to the
related Record Date, by check sent by first class mail to the address of such
Companion Holders or its agent appearing on the Companion Register). Any such
account shall be located at a commercial bank in the United States.
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s.
(a) On each Distribution Date, the Paying Agent shall forward or
make available to any Interested Person a statement (substantially in the form
set forth as Exhibit G hereto and based on the information supplied to the
Paying Agent in the related CMSA Investor Reporting Package (IRP) in accordance
with CMSA guidelines) as to the distributions made on such Distribution Date
(each, a "Statement to Certificateholders") setting forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates allocable to Distributable
Certificate Interest;
(iii) the aggregate amount of Advances made, with respect to the
pool of Mortgage Loans and with respect to each Loan Group, during the
period from but not including the previous Distribution Date to and
including such Distribution Date and details of P&I Advances as of the P&I
Advance Date;
(iv) the aggregate amount of compensation paid to the Trustee and
servicing compensation paid to the Servicer and the Special Servicer with
respect to the Due Period for such Determination Date and an itemized list
detailing the aggregate Special Servicing Fees, Workout Fees and
Liquidation Fees paid to the Special Servicer with respect to the Due
Period for such Determination Date;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans, with respect to the pool of Mortgage Loans and with respect
to each Loan Group, outstanding immediately before and immediately after
such Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans, with respect to the pool of Mortgage Loans and
with respect to each Loan Group, as of the end of the related Due Period
for such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days or more, (D) current but specially serviced or in foreclosure but not
REO Property and (E) for which the related Mortgagor is subject to
oversight by a bankruptcy court;
(viii) the value of any REO Property included in the Trust Fund as
of the end of the related Due Period for such Distribution Date on a
loan-by-loan basis, based on the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to (A) Yield Maintenance
Charges and (B) Excess Interest;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date, with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit on such
Distribution Date and the aggregate amount of all reductions as a result
of allocations of Collateral Support Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis and the total
Appraisal Reduction effected in connection with such Distribution Date,
together with a detailed worksheet showing the calculation of each
Appraisal Reduction on a current and cumulative basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date) on
a loan-by-loan basis;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date)
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a), (b) and
(d);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date,
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (or in the case of
the first Distribution Date, as of the Cut-off Date) or prior to the
related Determination Date (other than a payment in full), (A) the loan
number thereof, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Collateral Support Deficit in
connection with such Liquidation Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related Due
Period or prior to the Determination Date, (A) the loan number of the
related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in respect of the related REO Loan in connection with such
Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to the
Servicer, Special Servicer and the Trustee since the previous
Determination Date (or in the case of the first Distribution Date, as of
the Cut-off Date) with respect to the pool of Mortgage Loans and with
respect to each Loan Group;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to the Servicer, Special Servicer and the Trustee since the previous
Determination Date (or in the case of the first Distribution Date, as of
the Cut-off Date) with respect to the pool of Mortgage Loans and with
respect to each Loan Group;
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates; and
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date).
In the case of information furnished pursuant to clauses (i), (ii),
(xviii) and (xxiii) above, the amounts shall be expressed as a dollar amount in
the aggregate for all Certificates of each applicable Class and per Definitive
Certificate.
Within a reasonable period of time after the end of each calendar
year, the Paying Agent shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xii) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Paying Agent deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Paying Agent
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Paying Agent pursuant to any
requirements of the Code as from time to time are in force.
On each Distribution Date, the Paying Agent shall make available to
any Interested Person via its website initially located at
"xxx.xxxxxxxx.xxx/xxx" (i) the related Statement to Certificateholders, (ii) the
CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond Level
File, the CMSA Collateral Summary File, the CMSA Property File, the CMSA
Financial File, (iii) the reconciliation of funds for such Distribution Date and
(iv) as a convenience to Interested Persons (and not in furtherance of the
distribution thereof under the securities laws), the Prospectus and this
Agreement.
The Paying Agent shall make available the Statement to
Certificateholders through its home page on the Internet. The Paying Agent
hereby acknowledges and agrees that its home page as of the date hereof is
located at "xxx.xxxxxxxx.xxx/xxx" on the world wide web. In addition, if the
Depositor so directs the Paying Agent, and on terms acceptable to the Paying
Agent, the Paying Agent shall make certain other information and reports related
to the Mortgage Loans available through its home page.
In addition, on each Distribution Date, the Paying Agent shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package" to the extent delivered by the Servicer pursuant to this Agreement and
the updated Trustee's exception report.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its Internet website and assumes no responsibility therefor. In
addition, the Paying Agent may disclaim responsibility for any information
distributed by it for which it is not the original source.
In connection with providing access to the Paying Agent's Internet
website, the Paying Agent may require registration and the acceptance of a
disclaimer. The Paying Agent shall not be liable for the dissemination of
information in accordance herewith. Questions regarding the Paying Agent's
Internet website can be directed to the Paying Agent's CMBS customer service
desk at (000) 000-0000.
The Servicer may, at its sole cost and expense, make available by
electronic media, bulletin board service or Internet website (in addition to
making information available as provided herein) any reports or other
information the Servicer is required or permitted to provide to any party to
this Agreement, the Rating Agencies or any Certificateholder or prospective
Certificateholder to the extent such action does not conflict with the terms of
this Agreement, the terms of the Mortgage Loans or applicable law. In connection
with providing access to the Servicer's Internet website, the Servicer shall
take reasonable measures to ensure that only such parties listed above may
access such information including, without limitation, requiring registration, a
confidentiality agreement and acceptance of a disclaimer. The Servicer shall not
be liable for dissemination of this information in accordance with this
Agreement, provided that such information otherwise meets the requirements set
forth herein with respect to the form and substance of such information or
reports. The Servicer shall be entitled to attach to any report provided
pursuant to this subsection, any reasonable disclaimer with respect to
information provided, or any assumptions required to be made by such report.
Notwithstanding anything herein to the contrary, the Servicer may, at its sole
cost and expense, make available by electronic media, bulletin board service or
Internet website any reports or other information the Servicer is required or
permitted to provide to any Mortgagor with respect to such Mortgagor's Mortgage
Loan to the extent such action does not conflict with the terms of this
Agreement, the terms of the Mortgage Loans or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Servicer) provide the Servicer with such
information in its possession regarding the Specially Serviced Mortgage Loans
and REO Properties as may be necessary for the Servicer to prepare each report
and any supplemental information to be provided by the Servicer to the Paying
Agent, including, without limitation, the CMSA Special Servicer Loan Report.
Neither the Paying Agent nor the Depositor shall have any obligation to
recompute, verify or recalculate the information provided thereto by the
Servicer. Unless the Paying Agent has actual knowledge that any report or file
received from the Servicer contains erroneous information, the Paying Agent is
authorized to rely thereon in calculating and making distributions to
Certificateholders in accordance with Section 4.01, preparing the statements to
Certificateholders required by Section 4.02(a) and allocating Collateral Support
Deficit to the Certificates in accordance with Section 4.04.
Notwithstanding the foregoing, the failure of the Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Servicer
or the Special Servicer so fails because such disclosure, in the reasonable
belief of the Servicer or the Special Servicer, as the case may be, would
violate any applicable law or any provision of a Mortgage Loan document
prohibiting disclosure of information with respect to the Mortgage Loans or the
Mortgaged Properties. The Servicer or the Special Servicer may affix to any
information provided by it any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(c) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Paying Agent shall provide the
requesting Certificateholder with such information that is in the Paying Agent's
possession or can reasonably be obtained by the Paying Agent as is requested by
such Certificateholder, for purposes of satisfying applicable reporting
requirements under Rule 144A under the Securities Act. Neither the Certificate
Registrar the Paying Agent nor the Trustee shall have any responsibility for the
sufficiency under Rule 144A or any other securities laws of any available
information so furnished to any person including any prospective purchaser of a
Certificate or any interest therein, nor for the content or accuracy of any
information so furnished which was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
(e) (i) The Paying Agent, the Servicer and the Special Servicer
shall reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Exchange Act. The Paying Agent
shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for
similar securities as required by the Exchange Act and the Rules and Regulations
of the Commission thereunder, and the Paying Agent shall sign and file (via the
Commission's Electronic Data Gathering and Retrieval System) such Forms on
behalf of the Depositor. The Depositor hereby grants to the Paying Agent a
limited power of attorney to execute and file each such document on behalf of
the Depositor. Such power of attorney shall continue until the earlier of either
(i) receipt by the Paying Agent 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 Certification
signed by the Depositor where the related Form 10-K is signed by the Paying
Agent on behalf of the Depositor, the Paying Agent shall prepare such Form 10-K
to be signed by the Depositor.
(ii) Each Form 8-K shall be filed by the Paying Agent within 15 days
after each Distribution Date, including a copy of the Statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior
to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the Rules and Regulations of the Commission), the Paying
Agent shall file a Form 10-K, in substance as required by applicable law
or applicable Commission staff's interpretations. Such Form 10-K shall
include as exhibits the Servicer's and the Special Servicer's annual
statement of compliance described under Section 3.13 and the accountant's
report described under Section 3.14, in each case to the extent they have
been timely delivered to the Paying Agent. If they are not so timely
delivered, the Paying Agent shall file an amended Form 10-K including such
documents as exhibits reasonably promptly after they are delivered to the
Paying Agent. The Paying Agent shall have no liability with respect to any
failure to properly prepare or file such periodic reports resulting from
or relating to the Paying Agent's inability or failure to obtain any
information not resulting from its own negligence, willful misconduct or
bad faith. The Form 10-K shall also include a certification in the form
attached hereto as Exhibit P (the "Certification") (or in such other form
as required by the Rules and Regulations of the Commission), which shall
be signed by the senior officer of the Depositor in charge of
securitization.
(iii) With respect to each year a Form 10-K on behalf of the Trust
is filed, the Paying Agent shall sign a certification (in the form
attached hereto as Exhibit Q-1) for the benefit of the Depositor and its
officers, directors and Affiliates (provided, however, that the Paying
Agent shall not undertake an analysis of the accountant's report attached
as an exhibit to the Form 10-K), the Servicer shall sign a certification
(in the form attached hereto as Exhibit Q-2) and the Special Servicer
shall sign a certification (in the form attached hereto as Exhibit Q-3),
in each case, for the benefit of the Depositor and the Paying Agent and
their officers, directors and Affiliates. Each such certification shall be
delivered to the Depositor (and if applicable, by the Servicer or the
Special Servicer to the related Forum Shops Other Depositor) and the
Paying Agent by March 20th of each year (or if not a Business Day, the
immediately preceding Business Day). The Certification attached hereto as
Exhibit P shall be delivered by the Depositor to the Paying Agent for
filing by March 20th of each year (or if not a Business Day, the
immediately preceding Business Day). In addition, (i) the Paying Agent
shall indemnify and hold harmless the Depositor and its officers,
directors and Affiliates from and against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a
breach of the Paying Agent's obligations under this Section 4.02(e) or the
Paying Agent's negligence, bad faith or willful misconduct in connection
therewith, and (ii) the Servicer and Special Servicer shall each severally
and not jointly indemnify and hold harmless the Depositor, the Paying
Agent and their respective officers, directors and Affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and
expenses arising out of or based upon a breach of the Servicer's or
Special Servicer's obligations of the Servicer or the Special Servicer, as
the case may be, under this Section 4.02(e) or the negligence, bad faith
or willful misconduct of the Servicer or the Special Servicer, as the case
may be, in connection therewith. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Depositor, then
(i) the Paying Agent agrees that it shall contribute to the amount paid or
payable to the Depositor or the Paying Agent as a result of the losses,
claims, damages or liabilities of the Depositor or the Paying Agent in
such proportion as is appropriate to reflect the relative fault of the
Depositor or the Paying Agent on the one hand and the Paying Agent on the
other in connection with a breach of the Paying Agent's obligations under
this Section 4.02(e) or the Paying Agent's negligence, bad faith or
willful misconduct in connection therewith, (ii) the Servicer agrees that
it shall contribute to the amount paid or payable by the Depositor as a
result of the losses, claims, damages or liabilities of the Depositor or
the Paying Agent in such proportion as is appropriate to reflect the
relative fault of the Depositor or the Paying Agent on the one hand and
the Servicer on the other in connection with a breach of the Servicer's
obligations under this Section 4.02(e) or the Servicer's negligence, bad
faith or willful misconduct in connection therewith and (iii) the Special
Servicer agrees that it shall contribute to the amount paid or payable by
the Depositor as a result of the losses, claims, damages or liabilities of
the Depositor or the Paying Agent in such proportion as is appropriate to
reflect the relative fault of the Depositor on the one hand and the
Special Servicer on the other in connection with a breach of the Special
Servicer's obligations under this Section 4.02(e) or the Special
Servicer's negligence, bad faith or willful misconduct in connection
therewith.
(iv) Upon any filing with the Commission, the Paying Agent shall
promptly deliver to the Depositor and the Servicer a copy of any such
executed report, statement or information.
(f) Prior to January 30 of the first year in which the Paying Agent
is able to do so under applicable law, the Paying Agent shall file a Form 15
Suspension Notification with respect to the Trust after which time no Form 8-K
or Form 10-K will be filed unless otherwise required by the Exchange Act.
Section 4.03 P&I Advances.
(a) On or before 2:00 p.m., New York City time, on the Business Day
prior to each P&I Advance Date, the Servicer shall issue a report to the Paying
Agent as required herein and on the P&I Advance Date either (i) remit to the
Paying Agent for deposit into the Lower-Tier Distribution Account from its own
funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in the
Certificate Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made. Any amounts held in the Certificate
Account for future distribution and so used to make P&I Advances shall be
appropriately reflected in the Servicer's records and replaced by the Servicer
by deposit in the Certificate Account on or before the next succeeding P&I
Advance Date (to the extent not previously replaced through the deposit of Late
Collections of the delinquent principal and/or interest in respect of which such
P&I Advances were made). The Servicer shall notify the Paying Agent of (i) the
aggregate amount of P&I Advances for a Distribution Date and (ii) the amount of
any Nonrecoverable P&I Advances for such Distribution Date, on the Business Days
prior to the P&I Advance Date. If the Servicer fails to make a required P&I
Advance by 2:00 p.m., New York City time (including a P&I Advance pursuant to
Section 4.03(g)), on any P&I Advance Date, an Event of Default as set forth in
clause (a)(i) of Section 7.01 shall occur and the Trustee shall make such P&I
Advance pursuant to Section 7.05 by noon, New York City time, on the related
Distribution Date, in each case unless the Servicer shall have cured such
failure (and provided written notice of such cure to the Trustee and the Paying
Agent) by 11:00 a.m. on such Distribution Date. In the event that the Servicer
fails to make a required P&I Advance hereunder, the Paying Agent shall notify
the Trustee of such circumstances by 2:30 p.m. (New York City time) on the
related P&I Advance Date.
(b) Subject to Section 4.03(c) and (e) below, the aggregate amount
of P&I Advances to be made by the Servicer with respect to any Distribution Date
shall equal the aggregate of: (i) all Monthly Payments (net of related Servicing
Fees, and in the case of the Forum Shops Mortgage Loan, the Forum Shops Primary
Servicing Fee) other than Balloon Payments that were due during the related Due
Period and not received as of the P&I Advance Date and (ii) with respect to each
Mortgage Loan as to which the related Balloon Payment was due during or prior to
the related Due Period and was delinquent as of the P&I Advance Date (including
any REO Loan as to which the Balloon Payment would have been past due) and each
REO Loan, an amount equal to the Assumed Scheduled Payment therefor. Subject to
subsection (c) below, the obligation of the Servicer to make such P&I Advances
is mandatory, and with respect to any Mortgage Loan or REO Loan, shall continue
until the Distribution Date on which the proceeds, if any, received in
connection with a Liquidation Event or the disposition of the REO Property, as
the case may be, with respect thereto are to be distributed.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. With respect to each Pari Passu Loan,
the Servicer will be required to make its determination that it has made a P&I
Advance on such Pari Passu Loan that is a Nonrecoverable Advance or that any
proposed P&I Advance would, if made, constitute a Nonrecoverable Advance with
respect to such Pari Passu Loan independently of any determination made by any
Other Servicer under the related Other Pooling and Servicing Agreement in
respect of the related Pari Passu Serviced Companion Loan (in connection with
each Forum Shops Companion Note, following its deposit into a securitization
trust created under the related Other Pooling and Servicing Agreement), and the
Other Servicer shall make its own determination that it has made a P&I Advance
that is a Nonrecoverable Advance (as defined in such Other Pooling and Servicing
Agreement) or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable Advance (as defined in such Other Pooling and Servicing
Agreement) with respect to the Pari Passu Serviced Companion Loan included in
such Loan Pair in accordance with the Other Pooling and Servicing Agreement. If
the Servicer determines that a proposed P&I Advance with respect to a Pari Passu
Loan, if made, or any outstanding P&I Advance with respect to a Pari Passu Loan
previously made, would be, or is, as applicable, a Nonrecoverable Advance, the
Servicer shall provide the related Other Servicer written notice of such
determination within one Business Day of the date of such determination. If the
Servicer receives written notice from an Other Servicer that it has determined,
by making a determination of non-recoverability under the Other Pooling and
Servicing Agreement, with respect to the related Pari Passu Serviced Companion
Loan that any proposed advance under such Other Pooling and Servicing Agreement
that is similar to a P&I Advance would be, or any outstanding advance under such
Other Pooling and Servicing Agreement that is similar to a P&I Advance is, a
nonrecoverable advance, then such determination shall be binding on the
Certificateholders and none of the Servicer or the Trustee shall make any
additional P&I Advances with respect to the related Pari Passu Loan unless the
Servicer has consulted with the Other Servicer and they agree that circumstances
with respect to such Loan Pair have changed such that a proposed future P&I
Advance or an advance under the Other Pooling and Servicing Agreement that is
similar to a P&I Advance would not be a Nonrecoverable Advance or a
nonrecoverable advance, as the case may be. Notwithstanding the foregoing, the
Servicer or the Trustee shall continue to have the discretion provided in this
Agreement to determine that any future P&I Advance or outstanding P&I Advance
would be, or is, as applicable, a Nonrecoverable Advance.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account pursuant to Section 3.05(a), the Servicer shall be entitled
to pay the Trustee, and itself (in that order of priority) as the case may be
out of any amounts then on deposit in the Certificate Account, interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of such
P&I Advance from the date made to but not including the date of reimbursement;
provided, however, that no interest will accrue on any P&I Advance (i) made with
respect to a Mortgage Loan until after the related Due Date has passed and any
applicable grace period has expired or (ii) if the related Monthly Payment is
received after the Determination Date but on or prior to the related P&I Advance
Date. The Servicer shall reimburse itself or the Trustee, as the case may be,
for any outstanding P&I Advance, subject to Section 3.19 of this Agreement, as
soon as practicably possible after funds available for such purpose are
deposited in the Certificate Account.
(e) Notwithstanding the foregoing, (i) neither the Servicer nor the
Trustee shall make an advance for Excess Interest, Yield Maintenance Charges,
Penalty Charges and (ii) if an Appraisal Reduction has been made with respect to
any Mortgage Loan then in the event of subsequent delinquencies thereon, the
interest portion of the P&I Advance in respect of such Mortgage Loan for the
related Distribution Date shall be reduced (it being herein acknowledged that
there shall be no reduction in the principal portion of such P&I Advance) to
equal the product of (x) the amount of the interest portion of such P&I Advance
for such Mortgage Loan for such Distribution Date without regard to this
subsection (ii), and (y) a fraction, expressed as a percentage, the numerator of
which is equal to the Stated Principal Balance of such Mortgage Loan immediately
prior to such Distribution Date, net of the related Appraisal Reduction, if any,
and the denominator of which is equal to the Stated Principal Balance of such
Mortgage Loan immediately prior to such Distribution Date. For purposes of the
immediately preceding sentence, the Monthly Payment due on the Maturity Date for
a Balloon Mortgage Loan will be the Assumed Scheduled Payment for the related
Distribution Date.
(f) In no event shall the Servicer or the Trustee make a P&I Advance
with respect to any Companion Loan.
Section 4.04 Allocation of Collateral Support Deficit.
(a) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the Paying
Agent shall calculate the amount, if any, by which (i) the aggregate Stated
Principal Balance (for purposes of this calculation only, not giving effect to
any reductions of the Stated Principal Balance for payments of principal
collected on the Mortgage Loans that were used to reimburse any Workout-Delayed
Reimbursement Amounts pursuant to Section 3.05(a)(v) to the extent such
Workout-Delayed Reimbursement Amounts are (x) not otherwise determined to be
Nonrecoverable Advances or (y) not repaid by the related Mortgagor) of the
Mortgage Loans, and any REO Loans of the Mortgage Loans and any REO Loans
expected to be outstanding immediately following such Distribution Date, is less
than (ii) the then aggregate Certificate Balance of the Regular Certificates
after giving effect to distributions of principal on such Distribution Date and
the allocation of Certificate Deferred Interest pursuant to Section 4.05 (any
such deficit, the "Collateral Support Deficit"). Any allocation of Collateral
Support Deficit to a Class of Regular Certificates shall be made by reducing the
Certificate Balance thereof by the amount so allocated. Any Collateral Support
Deficit allocated to a Class of Regular Certificates shall be allocated among
the respective Certificates of such Class in proportion to the Percentage
Interests evidenced thereby. The allocation of Collateral Support Deficit shall
constitute an allocation of losses and other shortfalls experienced by the Trust
Fund. Reimbursement of previously allocated Collateral Support Deficit will not
constitute distributions of principal for any purpose and will not result in an
additional reduction in the Certificate Balance of the Class of Certificates in
respect of which any such reimbursement is made. To the extent any
Nonrecoverable Advances (plus interest thereon) that were reimbursed from
principal collections on the Mortgage Loans and previously resulted in a
reduction of the Principal Distribution Amount, Loan Group 1 Principal
Distribution Amount and/or Loan Group 2 Principal Distribution Amount are
subsequently recovered on the related Mortgage Loan, the amount of such recovery
will be added to the Certificate Balance of the Class or Classes of Certificates
that previously were allocated any Collateral Support Deficit, in sequential
order, in each case up to the amount of the unreimbursed Collateral Support
Deficit allocated to such Class. If the Certificate Balance of any Class is so
increased, the amount of unreimbursed Collateral Support Deficit of such Class
shall be decreased by such amount.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates will be reduced without distribution, as a write-off to the
extent of any Collateral Support Deficit, if any, allocable to such Certificates
with respect to such Distribution date. Any such write-off shall be allocated
first to the Class NR Certificates; second to the Class P Certificates; third to
the Class N Certificates; fourth to the Class M Certificates; fifth to the Class
L Certificates; sixth to the Class K Certificates; seventh to the Class J
Certificates; eighth to the Class H Certificates; ninth to the Class G
Certificates; tenth to the Class F Certificates; eleventh to the Class E
Certificates; twelfth to the Class D Certificates; thirteenth to the Class C
Certificates, fourteenth to the Class B Certificates, in each case, until the
remaining Certificate Balance of each such Class of Certificates has been
reduced to zero and fifteenth to the Class X-0, Xxxxx X-0, Class A-3, Class A-4
and Class A-1A Certificates, pro rata (based upon Certificate Balance), until
the remaining Certificate Balances of such Classes of Certificates have been
reduced to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Lower-Tier Principal Amount
of the Related Uncertificated Lower-Tier Interest with respect thereto as a
write-off (in the case of (i) the Class A-1 Certificates, first to the Class
LA-1-1 Uncertificated Interest, second to the Class LA-1-2 Uncertificated
Interest and third to the Class LA-1-3 Uncertificated Interest, in each case,
until reduced to zero, (ii) the Class A-2 Certificates, first to the Class
LA-2-1 Uncertificated Interest, second to the Class LA-2-2 Uncertificated
Interest, third to the Class LA-2-3 Uncertificated Interest, fourth to the Class
LA-2-4 Uncertificated Interest and fifth to the Class LA-2-5 Uncertificated
Interest in each case, until reduced to zero, (iii) the Class A-4 Certificates,
first to the Class LA-4-1 Uncertificated Interest and then to the Class LA-4-2
Uncertificated Interest, in each case, until reduced to zero, (iv) the Class
A-1A Certificates, first to the LA-1A-1 Uncertificated Interest, second to the
Class LA-1A-2 Uncertificated Interest, third to the Class LA-1A-3 Uncertificated
Interest, fourth to the Class LA-1A-4 Uncertificated Interest, fifth to the
Class LA-1A-5 Uncertificated Interest, sixth to the Class LA-1A-6 Uncertificated
Interest, seventh to the Class LA-1A-7 Uncertificated Interest and eighth to the
Class LA-1A-8 Uncertificated Interest, in each case, until reduced to zero, (v)
the Class E Certificates, first to the Class LE-1 Uncertificated Interest and
then to the Class LE-2 Uncertificated Interest, in each case, until reduced to
zero, (vi) the Class F Certificates, first to the Class LF-1 Uncertificated
Interest and then to the Class LF-2 Uncertificated Interest, in each case, until
reduced to zero, (vii) the Class G Certificates, first to the Class LG-1
Uncertificated Interest and then to the Class LG-2 Uncertificated Interest, in
each case, until reduced to zero, (viii) the Class H Certificates, first to the
Class LH-1 Uncertificated Interest and then to the Class LH-2 Uncertificated
Interest, in each case, until reduced to zero and (ix) the Class K Certificates,
first to the Class LK-1 Uncertificated Interest and then to the Class LK-2
Uncertificated Interest, in each case, until reduced to zero).
Section 4.05 Appraisal Reductions.
The aggregate Appraisal Reduction will be allocated by the Paying
Agent on each Distribution Date, only for purposes of determining the amount of
P&I Advances with respect to the related Mortgage Loan, to the Certificate
Balance of the Class NR, Class P, Class N, Class M, Class L, Class K, Class J,
Class H, Class G, Class F, Class E, Class D, Class C and Class B Certificates,
in that order, up to the amount of their respective Certificate Balances. On any
Distribution Date, an Appraisal Reduction that otherwise would be allocated to a
Class of Certificates will be allocated to the next most subordinate Class to
the extent that the Certificate Balance on such Distribution Date for such Class
of Certificates (prior to taking the Appraisal Reduction into account) is less
than the Appraisal Reduction for such Distribution Date.
Section 4.06 Certificate Deferred Interest.
(a) On each Distribution Date, the amount of interest distributable
to a Class of Regular Certificates (other than the Class X Certificates) shall
be reduced by an amount equal to the amount of Mortgage Deferred Interest for
all Mortgage Loans for the Due Dates occurring in the related Due Period
allocated to such Class of Certificates, such Mortgage Deferred Interest to be
allocated first to the Class NR Certificates, second to the Class P
Certificates, third to the Class N Certificates, fourth to the Class M
Certificates, fifth to the Class L Certificates, sixth to the Class K
Certificates, seventh to the Class J Certificates, eighth to the Class H
Certificates; ninth to the Class G Certificates, tenth to the Class F
Certificates; eleventh to the Class E Certificates; twelfth to the Class D
Certificates, thirteenth, to the Class C Certificates; fourteenth, to the Class
B Certificates; and fifteenth, pro rata (based upon Accrued Certificate
Interest), to the Class A-1, Class A-2, Class A-3, Class A-4 and Class A-1A
Certificates, in each case up to the respective Accrued Certificate Interest for
each such Class of Certificates for such Distribution Date.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-1A, 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 P and Class NR Certificates, shall be increased by the amount of the
Certificate Deferred Interest allocated to such Class of Certificates on such
Distribution Date pursuant to Section 4.05(a) above. On each Distribution Date,
the Certificate Deferred Interest so allocated will be allocated to the Related
Uncertificated Lower-Tier Interests, and in the case of (i) the Class A-1
Certificates will be allocated to the Class LA-1-1 Uncertificated Interest, the
Class LA-1-2 Uncertificated Interest and the Class LA-1-3 Uncertificated
Interest, (ii) the Class A-2 Certificates will be allocated to the Class LA-2-1
Uncertificated Interest, the Class LA-2-2 Uncertificated Interest, the Class
LA-2-3 Uncertificated Interest, the Class LA-2-4 Uncertificated Interest and the
Class LA-2-5 Uncertificated Interest, (iii) the Class A-4 Certificates will be
allocated to the Class LA-4-1 Uncertificated Interest and the Class LA-4-2
Uncertificated Interest, (iv) the Class A-1A Certificates will be allocated to
the Class LA-1A-1 Uncertificated Interest, the Class LA-1A-2 Uncertificated
Interest, the Class LA-1A-3 Uncertificated Interest, the Class LA-1A-4
Uncertificated Interest, the Class LA-1A-5 Uncertificated Interest, the Class
LA-1A-6 Uncertificated Interest, the Class LA-1A-7 Uncertificated Interest and
the Class LA-1A-8 Uncertificated Interest, (v) the Class E Certificates will be
allocable to the Class LE-1 Uncertificated Interest and the Class LE-2
Uncertificated Interest, (vi) the Class F Certificates will be allocated to the
Class LF-1 Uncertificated Interest and the Class LF-2 Uncertificated Interest,
(vii) the Class G Certificates will be allocated to the Class LG-1
Uncertificated Interest and the Class LG-2 Uncertificated Interest (viii) the
Class H Certificates will be allocated to the Class LH-1 Uncertificated Interest
and the Class LH-2 Uncertificated Interest and (ix) the Class K Certificates
will be allocated to the Class LK-1 Uncertificated Interest and the Class LK-2
Uncertificated Interest, in each case pro rata, based upon the Certificate
Balance of such Uncertificated Lower-Tier Interests immediately prior to such
Distribution Date.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.05(a) to a Class of Certificates shall be allocated in reduction of the amount
of interest distributable to the Related Uncertificated Lower-Tier Interest with
respect thereto (in the case of (i) the Class A-1 Certificates, will be
allocated to the Class LA-1-1 Uncertificated Interest, the Class LA-1-2
Uncertificated Interest and the Class LA-1-3 Uncertificated Interest, (ii) the
Class A-2 Certificates, will be allocated to the Class LA-2-1 Uncertificated
Interest, the Class LA-2-2 Uncertificated Interest, the Class LA-2-3
Uncertificated Interest, the Class LA-2-4 Uncertificated Interest and the Class
LA-2-5 Uncertificated Interest, (iii) the Class A-4 Certificates, will be
allocated to the Class LA-4-1 Uncertificated Interest and the Class LA-4-2
Uncertificated Interest, (iv) the Class A-1A Certificates, will be allocated to
the Class LA-1A-1 Uncertificated Interest, the Class LA-1A-2 Uncertificated
Interest, the Class LA-1A-3 Uncertificated Interest, the Class LA-1A-4
Uncertificated Interest, the Class LA-1A-5 Uncertificated Interest, the Class
LA-1A-6 Uncertificated Interest, the Class LA-1A-7 Uncertificated Interest and
the Class LA-1A-8 Uncertificated Interest, (v) the Class E Certificates, will be
allocated to the Class LE-1 Uncertificated Interest and the Class LE-2
Uncertificated Interest, (vi) the Class F Certificates, will be allocated to the
Class LF-1 Uncertificated Interest and the Class LF-2 Uncertificated Interest,
(vii) the Class G Certificates, will be allocated to the Class LG-1
Uncertificated Interest and the Class LG-2 Uncertificated Interest, (viii) the
Class H Certificates, will be allocated to the Class LH-1 Uncertificated
Interest and the Class LH-2 Uncertificated Interest, and (ix) the Class K
Certificates, will be allocated to the Class LK-1 Uncertificated Interest and
the Class LK-2 Uncertificated Interest, in each case pro rata, based on interest
accrued at the Pass-Through Rate for the Related Certificates; provided, that no
such allocation shall be made in respect of the portion of such interest
representing the related Class X-1 Strip Rate or Class X-2 Strip Rate. On each
Distribution Date, to the extent provided in Section 4.05(b), Certificate
Deferred Interest will be added to the Lower-Tier Principal Amount of the
Uncertificated Lower-Tier Interests in the same manner as the interest thereon
was reduced pursuant to the preceding sentence.
Section 4.07 Grantor Trust Reporting.
The parties intend that the portion of the Trust Fund constituting
the Grantor Trust, consisting of the Excess Interest allocable to the Mortgage
Loans, proceeds thereof held in the Certificate Account pertaining to the Excess
Interest allocable to the Mortgage Loans and the Excess Interest Distribution
Account shall constitute, and that the affairs of the Trust Fund (exclusive of
the Lower-Tier REMIC and the Upper-Tier REMIC) shall be conducted so as to
qualify such portion as a "grantor trust" under the Code, and the provisions
hereof shall be interpreted consistently with this intention. In furtherance of
such intention, the Paying Agent shall file or cause to be filed with the
Internal Revenue Service together with Form 1041 or such other form as may be
applicable and shall furnish or cause to be furnished, to the Class NR
Certificateholders, the amount of Excess Interest allocable to the Mortgage
Loans received, in the time or times and in the manner required by the Code.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibit A-1 through and including Exhibit A-23. The
Certificates will be issuable in registered form only; provided, however, that
in accordance with Section 5.03 beneficial ownership interests in the Regular
Certificates shall initially be held and transferred through the book-entry
facilities of the Depository. The Class R and Class LR Certificates will each be
issuable in one or more registered, definitive physical certificates (each, a
"Definitive Certificate") substantially in the form of Certificates of each
Class and with such applicable legends as are set forth in the Exhibits hereto
corresponding to such Class. Each Certificate will share ratably in all rights
of the related Class. The Class X Certificates will be issuable only in minimum
Denominations of authorized Original Notional Amount of not less than $1,000,000
and in integral multiples of $1.00 in excess thereof. The Offered Certificates
(other than the Class X Certificates) will be issuable only in minimum
Denominations of authorized initial Certificate Balance of not less than
$10,000, and in integral multiples of $1.00 in excess thereof. The
Non-Registered Certificates (other than the Residual Certificates) will be
issuable in minimum Denominations of authorized initial Certificate Balance of
not less than $250,000, and in integral multiples of $1.00 in excess thereof. If
the Original Certificate Balance or Original Notional Amount, as applicable, of
any Class does not equal an integral multiple of $1.00, then a single additional
Certificate of such Class may be issued in a minimum denomination of authorized
initial Certificate Balance or Original Notional Amount, as applicable, that
includes the excess of (i) the Original Certificate Balance or Original Notional
Amount, as applicable, of such Class over (ii) the largest integral multiple of
$1.00 that does not exceed such amount. The Class R and Class LR Certificates
will be issuable only in one or more Definitive Certificates in denominations
representing Percentage Interests of not less than 20%. With respect to any
Certificate or any beneficial interest in a Certificate, the "Denomination"
thereof shall be (i) the amount (a) set forth on the face thereof or, (b) set
forth on a schedule attached thereto or (c) in the case of any beneficial
interest in a Book-Entry Certificate, the interest of the related Certificate
Owner in the applicable Class of Certificates as reflected on the books and
records of the Depository or related Participants, as applicable, (ii) expressed
in terms of initial Certificate Balance or initial Notional Amount, as
applicable, and (iii) be in an authorized denomination, as set forth above. The
Book-Entry Certificates will be issued as one or more certificates registered in
the name of a nominee designated by the Depository, and Certificate Owners will
hold interests in the Book-Entry Certificates through the book-entry facilities
of the Depository in the minimum Denominations and aggregate Denominations as
set forth in the above. No Certificate Owner of a Book-Entry Certificate of any
Class thereof will be entitled to receive a Definitive Certificate representing
its interest in such Class, except as provided in Section 5.03 herein. Unless
and until Definitive Certificates are issued in respect of a Class of Book-Entry
Certificates, beneficial ownership interests in such Class of Certificates will
be maintained and transferred on the book-entry records of the Depository and
Depository Participants, and all references to actions by Holders of such Class
of Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. JPMorgan Chase
Bank, located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, is
hereby initially appointed Authenticating Agent with power to act on the
Trustee's behalf in the authentication and delivery of the Certificates in
connection with transfers and exchanges as herein provided. If JPMorgan Chase
Bank, located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, is
removed as Paying Agent, then JPMorgan Chase Bank shall be terminated as
Authenticating Agent. If the Authenticating Agent is terminated, the Trustee
shall appoint a successor Authenticating Agent, which may be the Trustee or an
Affiliate thereof.
(c) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
JPMorgan Chase Bank, located at 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, is
hereby initially appointed Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided. The
Certificate Registrar may appoint, by a written instrument delivered to the
Depositor, the Paying Agent, the Trustee, the Special Servicer and the Servicer,
any other bank or trust company to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe, provided that
the predecessor Certificate Registrar shall not be relieved of any of its duties
or responsibilities hereunder by reason of such appointment. If JPMorgan Chase
Bank resigns or is removed as Paying Agent, the Trustee shall immediately
succeed to its predecessor's duties as Certificate Registrar. The Depositor, the
Trustee, the Servicer and the Special Servicer shall have the right to inspect
the Certificate Register or to obtain a copy thereof at all reasonable times,
and to rely conclusively upon a certificate of the Certificate Registrar as to
the information set forth in the Certificate Register. The names and addresses
of all Certificateholders and the names and addresses of the transferees of any
Certificates shall be registered in the Certificate Register; provided, however,
in no event shall the Certificate Registrar be required to maintain in the
Certificate Register the names of Certificate Owners. The Person in whose name
any Certificate is so registered shall be deemed and treated as the sole owner
and Holder thereof for all purposes of this Agreement and the Certificate
Registrar, the Servicer, the Trustee, the Paying Agent, the Special Servicer and
any agent of any of them shall not be affected by any notice or knowledge to the
contrary. A Definitive Certificate is transferable or exchangeable only upon the
surrender of such Certificate to the Certificate Registrar at its office
maintained at JPMorgan Chase Bank, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000,
(Facsimile No.: (000) 000-0000), Attention: Real Estate Structured Finance X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC8, (the "Registrar Office") together
with an assignment and transfer (executed by the Holder or his duly authorized
attorney). Subject to the requirements of Sections 5.02(b), (c) and (d), the
Certificate Registrar shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination as the
Definitive Certificate being surrendered. Such Certificates shall be delivered
by the Certificate Registrar in accordance with Section 5.02(e). Each
Certificate surrendered for registration of transfer shall be canceled, and the
Certificate Registrar shall hold such canceled Certificates in accordance with
its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof) is to be made in reliance upon an exemption
from the Securities Act, and under the applicable state securities laws, then
either:
(i) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate During the Restricted Period. If, during the Restricted
Period, a Certificate Owner of an interest in a Rule 144A Book-Entry
Certificate wishes at any time to transfer its beneficial interest in such
Rule 144A Book-Entry Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such Certificate Owner may, in addition to complying with all
applicable rules and procedures of the Depository and Clearstream or
Euroclear applicable to transfers by their respective participants (the
"Applicable Procedures"), transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in the
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(i). Upon receipt by the Certificate
Registrar at its Corporate Trust Office of (1) written instructions given
in accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial interest, and
(3) a certificate in the form of Exhibit K hereto given by the Certificate
Owner that is transferring such interest, the Certificate Registrar, as
custodian of the Book-Entry Certificates shall reduce the Denomination of
the Rule 144A Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred, and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the Rule
144A Book-Entry Certificate was reduced upon such transfer.
(ii) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate After the Restricted Period. If, after the Restricted Period,
a Certificate Owner of an interest in a Rule 144A Book-Entry Certificate
wishes at any time to transfer its beneficial interest in such Rule 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such holder may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such beneficial interest for
an equivalent beneficial interest in a Regulation S Book-Entry Certificate
only upon compliance with the provisions of this Section 5.02(b)(ii). Upon
receipt by the Certificate Registrar at its Corporate Trust Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in the Regulation S Book-Entry
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository Participant
(and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the form
of Exhibit M hereto given by the Certificate Owner that is transferring
such interest, the Certificate Registrar as custodian of the Book-Entry
Certificates shall reduce the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Regulation S Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(iii) Regulation S Book-Entry Certificate to Rule 144A Book-Entry
Certificate. If the Certificate Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the transfer
of such beneficial interest for an equivalent beneficial interest in the
Rule 144A Book-Entry Certificate only upon compliance with the provisions
of this Section 5.2(b)(iii). Upon receipt by the Certificate Registrar at
its Corporate Trust Office of (1) written instructions given in accordance
with the Applicable Procedures from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Rule 144A Book-Entry Certificate in an amount equal to the Denomination of
the beneficial interest in the Regulation S Book-Entry Certificate to be
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for
such beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate (i)
during the Restricted Period, a certificate in the form of Exhibit N
hereto given by the Certificate Owner, or (ii) after the Restricted
Period, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer (an "Investment Representation Letter"),
the Certificate Registrar, as custodian of the Book-Entry Certificates,
shall reduce the Denomination of the Regulation S Book-Entry Certificate
by the Denomination of the beneficial interest in the Regulation S
Book-Entry Certificate to be transferred, and, concurrently with such
reduction, increase the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Regulation S Book-Entry Certificate to be so transferred, and credit
or cause to be credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Rule 144A Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Book-Entry Certificate was reduced upon such transfer.
(iv) Transfers Within Regulation S Book-Entry Certificates During
Restricted Period. If, during the Restricted Period, the Certificate Owner
of an interest in a Regulation S Book-Entry Certificate wishes at any time
to transfer its beneficial interest in such Certificate to a Person who
wishes to take delivery thereof in the form of a Regulation S Book-Entry
Certificate, such Certificate Owner may transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Corporate Trust Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate in an amount equal to the Denomination of the
beneficial interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Depository Participant to be credited with, and the
account of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be debited for, such beneficial interest and (3) a
certificate in the form of Exhibit O hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
debit the account of the transferring Regulation S Certificateholder and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount specified in such instructions by which
the account to be debited was reduced upon such transfer.
(v) Transfers of Book-Entry Certificates to Definitive Certificates.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) an opinion of counsel acceptable to
the Certificate Registrar that such transfer is in compliance with
the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit O
attached hereto. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made prior
to the expiration of the Restricted Period. Upon acceptance for
exchange or transfer of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate, as provided herein, the
Certificate Registrar shall endorse on the schedule affixed to the
related Book-Entry Certificate (or on a continuation of such
schedule affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of such
Book-Entry Certificate equal to the Denomination of such Definitive
Certificate issued in exchange therefor or upon transfer thereof.
(vi) Transfers of Definitive Certificates to the Book-Entry
Certificates. If a Holder of a Definitive Certificate wishes at any time
to transfer such Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the related Regulation S
Book-Entry Certificate or the related Rule 144A Book-Entry Certificate,
such transfer may be effected only in accordance with the Applicable
Procedures, and this Section 5.02(b)(vi). Upon receipt by the Certificate
Registrar at the Corporate Trust Office of (1) the Definitive Certificate
to be transferred with an assignment and transfer pursuant to Section
5.02(d), (2) written instructions given in accordance with the Applicable
Procedures from a Depository Participant directing the Certificate
Registrar to credit or cause to be credited to another specified
Depository Participant's account a beneficial interest in such Regulation
S Book-Entry Certificate or such Rule 144A Book-Entry Certificate, as the
case may be, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (3) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and, in the case of any transfer
pursuant to Regulation S, the Euroclear or Clearstream account, as the
case may be) to be credited with such beneficial interest, and (4) (x) if
delivery is to be taken in the form of a beneficial interest in the
Regulation S Book-Entry Certificate, a Regulation S Transfer Certificate
from the transferor or (y) an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, if delivery is to be taken in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, the Certificate Registrar shall
cancel such Definitive Certificate, execute and deliver a new Definitive
Certificate for the Denomination of the Definitive Certificate not so
transferred, registered in the name of the Holder, and the Certificate
Registrar, as custodian of the Book-Entry Certificates, shall increase the
Denomination of the Regulation S Book-Entry Certificate or the Rule 144A
Book-Entry Certificate, as the case may be, by the Denomination of the
Definitive Certificate to be so transferred, and credit or cause to be
credited to the account of the Person specified in such instructions (who,
in the case of any increase in the Regulation S Book-Entry Certificate
during the Restricted Period, shall be a Depository Participant acting for
or on behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) Transfers of Definitive Certificates to Definitive
Certificates. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v).
(viii) An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable Procedures.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
(OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT
IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E)
(OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE,
BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. EACH PURCHASER OF THIS
CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE SHALL BE REQUIRED TO
DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE
FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION
OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates, no sale,
transfer, pledge or other disposition by any Holder of any ERISA Restricted
Certificate shall be made unless the Certificate Registrar shall have received
either (i) a representation letter from the proposed purchaser or transferee of
such Certificate substantially in the form of Exhibit F attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan subject to the fiduciary responsibility provisions of ERISA or the
prohibited transactions provisions of Section 4975 of the Code, or a
governmental plan (as defined in Section 3(32) of ERISA) or a "church plan" (as
defined in Section 3(33) of ERISA and for which no election has been made under
Section 410(d) of the Code) subject to any federal, state or local law ("Similar
Law") which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each, a "Plan") or (b) a person acting on behalf of or using
the assets of any such Plan (including an entity whose underlying assets include
Plan assets by reason of investment in the entity by such Plan and the
application of Department of Labor Regulations ss. 2510.3-101), other than an
insurance company using the assets of its general account under circumstances
whereby the purchase and holding of such Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA and the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60 or (ii)
if such Certificate is presented for registration in the name of a purchaser or
transferee that is any of the foregoing, an Opinion of Counsel in form and
substance satisfactory to the Certificate Registrar and the Depositor to the
effect that the acquisition and holding of such Certificate by such purchaser or
transferee will not 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 Paying Agent, the Certificate
Registrar, the Servicer, the Special Servicer, the Underwriters, 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 Agreement. The Certificate Registrar shall
not register the sale, transfer, pledge or other disposition of any ERISA
Restricted Certificate unless the Certificate Registrar has received either the
representation letter described in clause (i) above or the Opinion of Counsel
described in clause (ii) above. The costs of any of the foregoing representation
letters or Opinions of Counsel shall not be borne by any of the Depositor, the
Servicer, the Special Servicer, the Trustee, the Paying Agent, the Underwriters,
the Initial Purchaser, the Certificate Registrar or the Trust Fund. Each
Certificate Owner of an ERISA Restricted Certificate shall be deemed to
represent that it is not a Person specified in clauses (a) or (b) above. Any
transfer, sale, pledge or other disposition of any ERISA Restricted Certificates
that would constitute or result in a prohibited transaction under ERISA, Section
4975 of the Code or any Similar Law, or would otherwise violate the provisions
of this Section 5.02(c) shall be deemed absolutely null and void ab initio, to
the extent permitted under applicable law.
So long as any of the Class of Certificates remains outstanding, the
Servicer or the Special Servicer, as applicable, will make available, or cause
to be made available, upon request, to any Holder and any Person to whom any
such Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Servicer, the Special Servicer or the Mortgage Loans necessary to
the provision of an Opinion of Counsel described in this Section 5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Paying Agent under
clause (ii) below to deliver payments to a Person other than such Person.
The rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulationsss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending
change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a
Permitted Transferee and is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that
it has reviewed the provisions of this Section 5.02(c) and agrees to
be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person or is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(c) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Servicer, the Authenticating Agent
and the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Certificate that is in fact
not permitted by this Section 5.02(c) or for making any payments due on
such Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement; provided,
however, that the Certificate Registrar shall be under such liability for
a registration of Transfer of a Residual Certificate if it has actual
knowledge that the proposed Transferee is a Disqualified Organization or
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person in
violation of Section 5.02(c)(i)(C) above or is not a Permitted Transferee.
(iii) The Paying Agent shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class E) or a
beneficial interest in a Book-Entry Certificate representing a Non-Registered
Certificate is being held by or for the benefit of a Person who is not an
Eligible Investor, or that such holding is unlawful under the laws of a relevant
jurisdiction, then the Certificate Registrar shall have the right to void such
transfer, if permitted under applicable law, or to require the investor to sell
such Definitive Certificate or beneficial interest in such Book-Entry
Certificate to an Eligible Investor within 14 days after notice of such
determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
(f) The Certificate Registrar shall provide notice to the Trustee,
the Servicer, the Special Servicer, the Paying Agent and the Depositor of each
transfer of a Certificate on its books and records and to provide each such
Person with an updated copy of the Certificate Register on or about January 1st
and July 1st of each year, commencing July 1, 2004.
(g) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(h) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates.
(a) The Regular Certificates shall initially be issued as one or
more Certificates registered in the name of the Depository or its nominee and,
except as provided in subsection (c) below, transfer of such Certificates may
not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except as
provided in Section 5.02(d) above or subsection (c) below, shall not be entitled
to Definitive Certificates in respect of such Ownership Interests. All transfers
by Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate Owner.
Each Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures.
(b) The Trustee, the Servicer, the Special Servicer, the Paying
Agent, 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
Paying Agent 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, the Paying Agent
and the Certificate Registrar in writing that the Depository is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Certificates and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor notifies the Depository, the Trustee, the
Paying Agent and the Certificate Registrar in writing of its intent to terminate
the book-entry system through the Depository and, upon receipt of notice of such
intent from the Depository, the Depository Participants agree to initiate such
termination or (iii) the Certificate Registrar determines that Definitive
Certificates are required in accordance with the provisions of Section 5.03(e),
the Paying Agent shall notify the affected Certificate Owners through the
Depository with respect to all, any Class or any portion of any Class of the
Certificates of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Depository or any custodian acting on behalf of the Depository, accompanied by
registration instructions from the Depository for registration of transfer, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver, within 5 Business Days of such request if made at the
Registrar Office, or within 10 Business Days if made at the office of a transfer
agent (other than the Certificate Registrar), the Definitive Certificates to the
Certificate Owners identified in such instructions. None of the Depositor, the
Paying Agent, the Servicer, the Trustee, the Special Servicer, the
Authenticating Agent and the Certificate Registrar shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Class of Certificates,
the registered Holders of such Definitive Certificates shall be recognized as
Certificateholders hereunder and, accordingly, shall be entitled directly to
receive payments on, to exercise Voting Rights with respect to, and to transfer
and exchange such Definitive Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or if the Special Servicer or the
Servicer, on the Trustee's behalf, has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under the
Certificates, and the Trustee has been advised by counsel that in connection
with such proceeding it is necessary or appropriate for the Trustee to obtain
possession of all or any portion of the Certificates evidenced by Book-Entry
Certificates, the Trustee may in its sole discretion determine that such
Certificates shall no longer be represented by such Book-Entry Certificates. In
such event, the Certificate Registrar will execute, the Authenticating Agent
will authenticate and the Certificate Registrar will deliver, in exchange for
such Book-Entry Certificates, Definitive Certificates in a Denomination equal to
the aggregate Denomination of such Book-Entry Certificates to the party so
requesting such Definitive Certificates. In such event, the Certificate
Registrar shall notify the affected Certificate Owners and make appropriate
arrangements for the effectuation of the purpose of this clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Applicable Procedures, Section 5.02(b) and
this Section 5.03(g). Upon receipt by the Certificate Registrar at the Registrar
Office of (i) the Definitive Certificate to be transferred with an assignment
and transfer pursuant to Section 5.02(a), and all required items pursuant to
Section 5.02(b)(v), the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered in the
name of the Holder or the Holder's transferee (as instructed by the Holder), and
the Certificate Registrar as custodian of the Book-Entry Certificates shall
increase the Denomination of the related Book-Entry Certificate by the
Denomination of the Definitive Certificate to be so transferred, and credit or
cause to be credited to the account of the Person specified in such instructions
a corresponding Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Paying Agent, the Certificate Registrar and any agents of any of them may treat
the person in whose name such Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever, except as and to the extent provided in
the definition of "Certificateholder," and none of the Depositor, the Servicer,
the Special Servicer, the Trustee, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d).
Section 5.06 Appointment of Paying Agent.
(a) JPMorgan Chase Bank, located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, is hereby initially appointed Paying Agent to act on the
Trustee's behalf in accordance with the terms of this Agreement. If the Paying
Agent resigns or is terminated, the Trustee shall appoint a successor Paying
Agent which may be the Trustee or an Affiliate thereof to fulfill the
obligations of the Paying Agent hereunder which must be rated "A" or otherwise
be acceptable to the Rating Agencies, as evidenced by a written confirmation
that such appointment will not cause the downgrade, withdrawal or qualification
of the then current ratings of any Class of Certificates.
(b) The Paying Agent 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.
(c) The Paying Agent, at the expense of the Trust Fund (but only if
such amount constitutes "unanticipated expenses of the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii)), 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.
(d) The Paying Agent 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.
(e) The Paying Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Paying Agent of its duties or obligations
hereunder.
(f) The Paying Agent shall not be responsible for any act or
omission of the Trustee, the Servicer or the Special Servicer or of the
Depositor.
Section 5.07 Certificate Ownership Certification.
To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Paying
Agent shall make such determination based on a certificate of such Person which
shall be addressed to the Paying Agent and shall specify, in reasonable detail
satisfactory to the Paying Agent, such Person's name and address, the Class and
Certificate Balance or Notional Amount of the Regular Certificate beneficially
owned, and any intermediaries through which such Person's interest in such
Regular Certificate is held (any such certification, other than one which the
Paying Agent shall refuse to recognize pursuant to the following procedures, a
"Certificate Ownership Certification"); provided, however, that the Paying Agent
shall not knowingly recognize such Person as a Certificate Owner if such Person,
to the actual knowledge of a Responsible Officer of such party, acquired its
interest in a Regular Certificate in violation of the transfer restrictions
herein, or if such Person's certification that it is a Certificate Owner is in
direct conflict with information obtained by the Paying Agent form the
Depository or any Depository Participant with respect to the identity of a
Certificate Owner; provided, however, that to the extent the Paying Agent is
required to obtain such Certificate Owner information from the Depository or any
Depository Participant, the Paying Agent shall be reimbursed for any cost or
expense in obtaining such information from the Distribution Account. The Paying
Agent may conclusively rely on such Certificate Ownership Certification. The
Servicer will only be required to acknowledge the status of any Person as a
Certificateholder or Certificate Owner to the extent that the Paying Agent, at
the request of the Servicer, identifies such Person as a Certificateholder or
Certificate Owner.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE SERVICER, THE SPECIAL SERVICER
AND THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Servicer and the
Special Servicer.
The Depositor, the Servicer and the Special Servicer shall be liable
in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicer and the
Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Servicer or the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the Servicer and
the Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) The Depositor, the Servicer and the Special Servicer each may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets (which may be limited to all or substantially all of its
assets related to commercial mortgage loan servicing) to any Person, in which
case any Person resulting from any merger or consolidation to which the
Depositor, the Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business of the Depositor, the Servicer or the Special
Servicer, shall be the successor of the Depositor, the Servicer and the Special
Servicer, as the case may be, hereunder, without the execution or filing of any
paper (other than an assumption agreement wherein the successor shall agree to
perform the obligations of and serve as the Depositor, the Servicer or the
Special Servicer, as the case may be, in accordance with the terms of this
Agreement) or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that such merger,
consolidation or succession will not result in a withdrawal, downgrading or
qualification of the then-current ratings of the Classes of Certificates that
have been so rated (as evidenced by a letter to such effect from each Rating
Agency).
Section 6.03 Limitation on Liability of the Depositor, the
Servicer, the Special Servicer and Others.
(a) None of the Depositor, the Servicer, the Special Servicer or any
of the directors, officers, employees or agents of any of the foregoing shall be
under any liability to the Trust, the Certificateholders or the Companion
Holders for any action taken or for refraining from the taking of any action in
good faith pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Depositor, the Servicer, the
Special Servicer or any such Person against any breach of warranties or
representations made herein or any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of negligent disregard of obligations and duties hereunder.
The Depositor, the Servicer and the Special Servicer and any director, officer,
member, manager, employee or agent of the Depositor, the Servicer or the Special
Servicer may rely on any document of any kind which, prima facie, is properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor, the Servicer, the Special Servicer and any director, officer,
employee or agent of any of the foregoing shall be indemnified and held harmless
by the Trust against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
(whether in equity or at law) or claim relating to this Agreement (including in
its capacity as Companion Paying Agent), the Mortgage Loans, the Companion Loan
or the Certificates, other than any loss, liability or expense: (i) specifically
required to be borne thereby pursuant to the terms hereof; (ii) incurred in
connection with any breach of a representation or warranty made by it herein;
(iii) incurred by reason of bad faith, willful misfeasance or negligence in the
performance of its obligations or duties hereunder, or by reason of negligent
disregard of such obligations or duties or (iv) in the case of the Depositor and
any of its directors, officers, employees and agents, incurred in connection
with any violation by any of them of any state or federal securities law.
(b) None of the Depositor, the Servicer and the Special Servicer
shall be under any obligation to appear in, prosecute or defend any legal or
administrative action (whether in equity or at law), proceeding, hearing or
examination that is not incidental to its respective duties under this Agreement
or which in its opinion may involve it in any expense or liability not
recoverable from the Trust Fund; provided, however, that the Depositor, the
Servicer or the Special Servicer may in its discretion undertake any such
action, proceeding, hearing or examination that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action, proceeding, hearing or examination and
any liability resulting therefrom shall be expenses, costs and liabilities of
the Trust Fund, and the Depositor, the Servicer and the Special Servicer shall
be entitled to be reimbursed therefor out of amounts attributable to the
Mortgage Loans on deposit in the Certificate Account as provided by Section
3.05(a).
(c) Each of the Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trustee, the Paying Agent and the Trust and any
director, officer, employee or agent thereof, and hold them harmless, from and
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that any of them may sustain arising from or as a result of any
willful misfeasance, bad faith or negligence of the Servicer or the Special
Servicer, as the case may be, in the performance of its obligations and duties
under this Agreement or by reason of negligent disregard by the Servicer or the
Special Servicer, as the case may be, of its duties and obligations hereunder or
by reason of breach of any representations or warranties made herein; provided
that such indemnity shall not cover indirect or consequential damages. The
Trustee, the Paying Agent or the Depositor, as the case may be, shall
immediately notify the Servicer or the Special Servicer, as applicable, if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans entitling the Trust to indemnification hereunder, whereupon the Servicer
or the Special Servicer, as the case may be, shall assume the defense of such
claim (with counsel reasonably satisfactory to the Trustee, the Paying Agent or
the Depositor) and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. Any failure to so notify
the Servicer or the Special Servicer, as the case may be, shall not affect any
rights any of the foregoing Persons may have to indemnification under this
Agreement or otherwise, unless the Servicer's, or the Special Servicer's, as the
case may be, defense of such claim is materially prejudiced thereby.
(d) Each of the Trustee and the Paying Agent, respectively (and not
jointly and severally) agrees to indemnify the Servicer and the Special Servicer
and any director, officer, employee or agent thereof, and hold them harmless,
from and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses that any of them may sustain arising from or as a
result of any willful misfeasance, bad faith or negligence of the Trustee or the
Paying Agent, respectively, in the performance of its obligations and duties
under this Agreement or by reason of negligent disregard by the Trustee or the
Paying Agent, respectively, of its duties and obligations hereunder or by reason
of breach of any representations or warranties made herein; provided, that such
indemnity shall not cover indirect or consequential damages. The Servicer or the
Special Servicer, as the case may be, shall immediately notify the Trustee and
the Paying Agent if a claim is made by a third party with respect to this
Agreement, whereupon the Trustee or the Paying Agent, respectively, shall assume
the defense of such claim (with counsel reasonably satisfactory to the Servicer
or the Special Servicer) and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. Any failure to
so notify the Trustee or the Paying Agent shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Trustee's or the Paying Agent's defense of such claim is materially
prejudiced thereby.
(e) The Depositor agrees to indemnify the Servicer and the Special
Servicer and any director, officer, employee or agent thereof, and hold them
harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Depositor, in the performance of its obligations and duties under this Agreement
or by reason of negligent disregard by the Depositor of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided, that such indemnity shall not cover indirect
or consequential damages. The Servicer or the Special Servicer, as the case may
be, shall immediately notify the Depositor if a claim is made by a third party
with respect to this Agreement, whereupon the Depositor shall assume the defense
of such claim (with counsel reasonably satisfactory to the Servicer or the
Special Servicer) and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. Any failure to
so notify the Depositor shall not affect any rights any of the foregoing Persons
may have to indemnification under this Agreement or otherwise, unless the
Depositor's defense of such claim is materially prejudiced thereby.
(f) The Forum Shops Primary Servicer, the Forum Shops Special
Servicer, the Depositor, the Forum Shops Paying Agent and the Forum Shops
Trustee, and any of their respective directors, officers, employees or agents
(collectively, the "Forum Shops Indemnified Parties"), shall be indemnified by
the Trust and held harmless against the Trust's pro rata share (subject to the
Forum Shops Intercreditor Agreement) of any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to the Forum Shops Mortgage Loan under
the Forum Shops Pooling Agreement or this Agreement (but excluding any such
losses allocable to the Forum Shops Companion Notes), reasonably requiring the
use of counsel or the incurring of expenses other than any losses incurred by
reason of any Forum Shops Indemnified Party's willful misfeasance, bad faith or
negligence in the performance of duties or by reason of negligent disregard of
obligations and duties under the Forum Shops Pooling Agreement.
(g) The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of the
Servicer, the Trustee, the Paying Agent and the Special Servicer.
Section 6.04 Servicer and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Servicer nor
the Special Servicer shall resign from their respective obligations and duties
hereby imposed on each of them except upon (a) determination that such party's
duties hereunder are no longer permissible under applicable law or (b) the
appointment of, and the acceptance of such appointment by, a successor Servicer
or Special Servicer, as applicable, and receipt by the Trustee of written
confirmation from each applicable Rating Agency that such resignation and
appointment will not cause such Rating Agency to downgrade, withdraw or qualify
any of the then current ratings assigned by such Rating Agency to any Class of
Certificates. Only the Servicer shall be permitted to resign pursuant to clause
(b) above. Any such determination permitting the resignation of the Servicer or
the Special Servicer pursuant to clause (a) above shall be evidenced by an
Opinion of Counsel (at the expense of the resigning party) to such effect
delivered to the Trustee and the Directing Certificateholder. No such
resignation by the Servicer or the Special Servicer shall become effective until
the Trustee or a successor Servicer shall have assumed the Servicer's or Special
Servicer's, as applicable, responsibilities and obligations in accordance with
Section 7.02. Upon any termination or resignation of the Servicer hereunder, the
Servicer shall have the right and opportunity to appoint any successor Servicer
with respect to this Section 6.04, provided that such successor Servicer is
approved by the Directing Certificateholder, such approval not to be
unreasonably withheld.
Section 6.05 Rights of the Depositor in Respect of the Servicer and
the Special Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Servicer and the Special Servicer hereunder or exercise the rights of the
Servicer or Special Servicer, as applicable, hereunder; provided, however, that
the Servicer and the Special Servicer shall not be relieved of any of their
respective obligations hereunder by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Servicer or the Special Servicer and is
not obligated to supervise the performance of the Servicer or the Special
Servicer under this Agreement or otherwise.
Section 6.06 The Directing Certificateholder.
The Directing Certificateholder shall be entitled to advise (1) the
Special Servicer with respect to all Specially Serviced Mortgage Loans, (2) the
Special Servicer and the Servicer with respect to Non-Specially Serviced
Mortgage Loans having Stated Principal Balances greater than or equal to
$2,500,000 (other than with respect to the extension of maturity of any Mortgage
Loan), and (3) the Special Servicer with respect to all Mortgage Loans for which
an extension of maturity is being considered, and notwithstanding anything
herein to the contrary, except as set forth in, and in any event subject to,
Section 3.08(f) and the second paragraph of this Section 6.06, the Servicer or
Special Servicer, as applicable, shall not be permitted to take any of the
following actions as to which the Directing Certificateholder has objected in
writing within ten (10) Business Days of being notified thereof (or thirty (30)
days with respect to clause (x) below) (provided that if such written objection
has not been received by the Servicer or the Special Servicer, as applicable,
within such ten (10) Business Day period or other period, then the Directing
Certificateholder will be deemed to have waived its right to object):
(i) any proposed foreclosure upon or comparable conversion (which
may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification or consent to a modification of a monetary
term of a Mortgage Loan or any extension of the maturity date of any
Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or REO Property
(other than pursuant to Section 3.18(d) or Section 9.01) for less than the
applicable Purchase Price;
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan other than pursuant to the
specific terms of the related Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Mortgage Loan or any consent to such waiver;
(vii) any management company changes or franchise changes with
respect to a Mortgage Loan for which the Servicer is required to consent
or approve;
(viii) releases of any escrows, reserves or letters of credit held
as performance escrows or reserves, other than pursuant to the specific
terms of the Mortgage Loans;
(ix) any acceptance or consent to the acceptance of an assumption
agreement releasing a Mortgagor from liability under a Mortgage Loan other
than pursuant to the specific terms of such Mortgage Loan; and
(x) any determination of an Acceptable Insurance Default;
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole), the Special Servicer may take any such action without waiting
for the Directing Certificateholder's response.
In addition, the Directing Certificateholder may direct the Special
Servicer to take, or to refrain from taking, such other actions with respect to
a Mortgage Loan, as the Directing Certificateholder may reasonably deem
advisable or as to which provision is otherwise made herein; provided that
notwithstanding anything herein to the contrary, no such direction, and no
objection contemplated by the preceding paragraph, may require or cause the
Special Servicer to violate any provision of any Mortgage Loan, applicable law,
this Agreement or the REMIC Provisions, including without limitation the Special
Servicer's obligation to act in accordance with the Servicing Standards, or
expose the Servicer, the Special Servicer, the Trust Fund, the Paying Agent or
the Trustee to liability, or materially expand the scope of the Special
Servicer's responsibilities hereunder or cause the Special Servicer to act, or
fail to act, in a manner which in the reasonable judgment of the Special
Servicer is not in the best interests of the Certificateholders.
In the event the Servicer or Special Servicer determines that a
refusal to consent by the Directing Certificateholder or any advice or direction
from the Directing Certificateholder would otherwise cause the Servicer or the
Special Servicer, as the case may be, to violate the terms of any Mortgage Loan,
applicable law, this Agreement, including without limitation, the Servicing
Standards, the Servicer or the Special Servicer, as the case may be, shall
disregard such refusal to consent, advice or direction and notify the other
servicer, the Directing Certificateholder, the Trustee and the Rating Agencies
of its determination, including a reasonably detailed explanation of the basis
therefor.
The Directing Certificateholder shall have no liability to the Trust
Fund or the Certificateholders for any action taken, or for refraining from the
taking of any action in good faith, or for errors in judgment; provided,
however, that the Directing Certificateholder shall not be protected against any
liability to the Controlling Class Certificateholder which would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations or
duties. By its acceptance of a Certificate, each Certificateholder confirms its
understanding that the Directing Certificateholder may take actions that favor
the interests of one or more Classes of the Certificates over other Classes of
the Certificates, and that the Directing Certificateholder may have special
relationships and interests that conflict with those of Holders of some Classes
of the Certificates, that the Directing Certificateholder may act solely in the
interests of the Holders of the Controlling Class, that the Directing
Certificateholder does not have any duties to the Holders of any Class of
Certificates other than the Controlling Class, that the Directing
Certificateholder may take actions that favor the interests of the Holders of
the Controlling Class over the interests of the Holders of one or more other
classes of Certificates, that the Directing Certificateholder shall not be
liable to any Certificateholder, by reason of its having acted solely in the
interests of the Holders of the Controlling Class, and that the Directing
Certificateholder shall have no liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Directing
Certificateholder or any director, officer, employee, agent or principal thereof
for having so acted.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) (A) any failure by the Servicer to make any deposit required to
be made by the Servicer to the Certificate Account on the day and by the
time such remittance is required to be made under the terms of this
Agreement, which failure is not remedied within one Business Day or (B)
any failure by the Servicer to deposit into, or remit to the Paying Agent
for deposit into, any Distribution Account any amount required to be so
deposited or remitted, which failure is not remedied by 11:00 a.m. (New
York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within one Business Day after such deposit is required to be made
or to remit to the Servicer for deposit into the Certificate Account, or
to deposit into, or to remit to the Paying Agent for deposit into, the
Lower-Tier Distribution Account any amount required to be so deposited or
remitted by the Special Servicer pursuant to, and at the time specified
by, the terms of this Agreement; or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any of its
other covenants or obligations contained in this Agreement which continues
unremedied for a period of 30 days (10 days in the case of the Servicer's
failure to make a Servicing Advance or 15 days in the case of a failure to
pay the premium for any insurance policy required to be maintained
hereunder) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer
or the Special Servicer, as the case may be, by any other party hereto,
with a copy to each other party to this Agreement by the Holders of
Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 25%; provided, however, if such
failure is capable of being cured and the Servicer or Special Servicer, as
applicable, is diligently pursuing such cure, such 30-day period will be
extended an additional 30 days; or
(iv) any breach on the part of the Servicer or the Special Servicer
of any representation or warranty contained in Section 3.23 or Section
3.24, as applicable, which materially and adversely affects the interests
of any Class of Certificateholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach, requiring
the same to be remedied, shall have been given to the Servicer or the
Special Servicer, as the case may be, by the Depositor, the Paying Agent
or the Trustee, or to the Servicer, the Special Servicer, the Depositor,
the Paying Agent and the Trustee by the Holders of Certificates of any
Class evidencing, as to such Class, Percentage Interests aggregating not
less than 25%; provided, however, if such breach is capable of being cured
and the Servicer or Special Servicer, as applicable, is diligently
pursuing such cure, such 30-day period will be extended an additional 30
days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged, undismissed or unstayed for a period of 60
days; or
(vi) the Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or the Special Servicer or of or relating to all or substantially
all of its property; or
(vii) the Servicer or the Special Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) Moody's places its ratings of any Class of Certificates on a
"watch" status in contemplation of a ratings downgrade or withdrawal,
citing servicing or special servicing concerns, as applicable, as the sole
or a contributory factor in such rating action and such "watch" status is
not rescinded within 60 days (or such longer period as would not, as
confirmed by Moody's in writing, result in a qualification, downgrade or
withdrawal of one or more ratings assigned by such Rating Agency to the
Certificates); or
(ix) Moody's downgrades the then current ratings of any Class of
Certificates, citing servicing or special servicing concerns, as
applicable, as the sole or a contributory factor in such downgrade; or
(x) the Servicer or Special Servicer is removed from the S&P
approved master servicer list or approved special servicer list, as
applicable, and is not reinstated to the approved master servicer or
special servicer list, as applicable, within 30 days of such removal.
(b) If any Event of Default with respect to the Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Depositor or the Trustee may, and at the written direction of the Directing
Certificateholder or Holders of Certificates entitled to at least 51% of the
Voting Rights, the Trustee shall, terminate, by notice in writing to the
Defaulting Party, with a copy of such notice to the Depositor, all of the rights
(subject to Section 3.11 and Section 6.03) and obligations of the Defaulting
Party under this Agreement and in and to the Mortgage Loans and the proceeds
thereof; provided, however, that the Defaulting Party shall be entitled to the
payment of accrued and unpaid compensation and reimbursement through the date of
such termination as provided for under this Agreement for services rendered and
expenses incurred. From and after the receipt by the Defaulting Party of such
written notice except as otherwise provided in this Article VII, all authority
and power of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee with respect to a
termination of the Servicer or the Special Servicer pursuant to and under this
Section, and, without limitation, the Trustee is hereby authorized and empowered
to execute and deliver, on behalf of and at the expense of the Defaulting Party,
as attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement or assignment of the Mortgage Loans and related
documents, or otherwise. The Servicer and Special Servicer each agree that if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than 20 Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records requested by it
to enable it to assume the Servicer's or the Special Servicer's, as the case may
be, functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Servicer's or the Special Servicer's, as the case may be,
responsibilities and rights (subject to Section 3.11 and Section 6.03)
hereunder, including, without limitation, the transfer within 5 Business Days to
the Trustee for administration by it of all cash amounts which shall at the time
be or should have been credited by the Servicer to the Certificate Account or
any Servicing Account (if it is the Defaulting Party) or by the Special Servicer
to the REO Account (if it is the Defaulting Party) or thereafter be received
with respect to the Mortgage Loans or any REO Property (provided, however, that
the Servicer and the Special Servicer each shall, if terminated pursuant to this
Section 7.01(b), continue to be entitled to receive all amounts accrued or owing
to it under this Agreement on or prior to the date of such termination, whether
in respect of Advances (in the case of the Special Servicer or the Servicer) or
otherwise, and it and its directors, managers, officers, members, employees and
agents shall continue to be entitled to the benefits of Section 3.11 and Section
6.03 notwithstanding any such termination).
(c) If the Servicer receives notice of termination solely due to an
Event of Default under Section 7.01(b) solely due to an Event of Default under
Section 7.01(a)(viii), (ix) or (x) and if the Servicer to be terminated pursuant
to Section 7.01(b) provides the Trustee with the appropriate "request for
proposal" materials within five (5) Business Days following such termination
notice, then the Servicer shall continue to service as Servicer hereunder until
a successor Servicer is selected in accordance with this Section 7.01(c). Upon
receipt of the "request for proposal" materials, Trustee shall promptly
thereafter (using such "request for proposal" materials provided by the Servicer
pursuant to Section 7.01(b)) solicit good faith bids for the rights to service
the Mortgage Loans under this Agreement from at least three (3) Persons
qualified to act as Servicer hereunder in accordance with Sections 6.02 and 7.02
(any such Person so qualified, a "Qualified Bidder") or, if three (3) Qualified
Bidders cannot be located, then from as many persons as the Trustee can
determine are Qualified Bidders; provided that, at the Trustee's request, the
Servicer shall supply the Trustee with the names of Persons from whom to solicit
such bids; and provided, further, that the Trustee shall not be responsible if
less than three (3) or no Qualified Bidders submit bids for the right to service
the Mortgage Loans under this Agreement. The bid proposal shall require any
Successful Bidder (as defined below), as a condition of such bid, to enter into
this Agreement as successor Servicer, and to agree to be bound by the terms
hereof, within 45 days after the notice of termination of the Servicer. The
materials provided to the Trustee shall provide for soliciting bids: (i) on the
basis of such successor Servicer retaining all Sub-Servicers to continue the
primary servicing of the Mortgage Loans pursuant to the terms of the respective
Sub-Servicing Agreements (each, a "Servicing-Retained Bid"); and (ii) on the
basis of terminating each Sub-Servicing Agreement and Sub-Servicer that it is
permitted to terminate in accordance with Section 3.22 (each, a
"Servicing-Released Bid"). The Trustee shall select the Qualified Bidder with
the highest cash Servicing-Retained Bid (or, if none, the highest cash
Servicing-Released Bid) (the "Successful Bidder") to act as successor Servicer
hereunder; provided, however, that if the Trustee does not receive confirmation
in writing by each Rating Agency that the appointment of such Successful Bidder
as successor Servicer will not result in the withdrawal, downgrade, or
qualification of the rating assigned by the Rating to any class of Certificates
then rated by the Rating Agency within 10 days after the selection of such
Successful Bidder, then the Trustee shall repeat the bid process described above
(but subject to the above-described 45-day time period) until such confirmation
is obtained. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Servicer pursuant to the terms hereof no later than 45
days after notice of the termination of the Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder (subject to the terms of Section 3.11) to and by the Successful
Bidder, the Trustee shall remit or cause to be remitted (i) if the successful
bid was a Servicing-Retained Bid, to the Servicer to be terminated pursuant to
Section 7.01(b), the amount of such cash bid received from the Successful Bidder
(net of "out-of-pocket" expenses incurred in connection with obtaining such bid
and transferring servicing) and (ii) if the successful bid was a
Servicing-Released Bid, to the Servicer and each terminated Sub-Servicer its
respective Bid Allocation.
The Servicer to be terminated pursuant to Section 7.01(b) shall be
responsible for all out-of-pocket expenses incurred in connection with the
attempt to sell its rights to service the Mortgage Loans, which expenses are not
reimbursed to the party that incurred such expenses pursuant to the preceding
paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Servicer within the above-described time period or no Successful
Bidder was identified within the above-described time period, the Servicer to be
terminated pursuant to Section 7.01(b) shall reimburse the Trustee for all
reasonable "out-of-pocket" expenses incurred by the Trustee in connection with
such bid process and the Trustee shall have no further obligations under this
Section 7.01(c). The Trustee thereafter may act or may select a successor to act
as Servicer hereunder in accordance with Section 7.02.
(d) The Directing Certificateholder shall be entitled to terminate
the rights (subject to Section 3.11 and Section 6.03(d)) and obligations of the
Special Servicer under this Agreement, with or without cause, upon ten (10)
Business Days' notice to the Special Servicer, the Servicer, the Paying Agent
and the Trustee. Upon a termination or resignation of the Special Servicer, the
Directing Certificateholder shall appoint a successor Special Servicer;
provided, however, that (i) such successor will meet the requirements set forth
in Section 7.02 and (ii) as evidenced in writing by each of the Rating Agencies,
the proposed successor of such Special Servicer will not, in and of itself,
result in a downgrading, withdrawal or qualification of the then-current ratings
provided by the Rating Agencies in respect to any Class of then outstanding
Certificates that is rated. No penalty or fee shall be payable to the Special
Servicer with respect to any termination pursuant to this Section 7.01(d). All
costs and expenses of any such termination made without cause shall be paid by
the Holders of the Controlling Class.
(e) The Servicer and Special Servicer shall, from time to time, take
all such reasonable actions as are required in accordance with the related
Servicing Standards by them in order to prevent the Certificates being placed on
"watch" status or downgraded due to servicing or special servicing concerns by
either Rating Agency.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer, as the
case may be, either resigns pursuant to Subsection (a) of the first sentence of
Section 6.04 or receives a notice of termination for cause pursuant to Section
7.01(b), and provided that no acceptable successor has been appointed within the
time period specified in Section 7.01(c), the Trustee shall be the successor to
the Servicer or the Special Servicer, until such successor is appointed by the
Directing Certificateholder as provided in Section 7.01(c), as applicable, in
all respects in its capacity as Servicer or Special Servicer under this
Agreement and the transactions set forth or provided for herein and shall be
subject to, and have the benefit of, all of the rights, (subject to Section 3.11
and Section 6.03) benefits, responsibilities, duties, liabilities and
limitations on liability relating thereto and that arise thereafter placed on or
for the benefit of the Servicer or Special Servicer by the terms and provisions
hereof; provided, however, that any failure to perform such duties or
responsibilities caused by the terminated party's failure under Section 7.01 to
provide information or moneys required hereunder shall not be considered a
default by such successor hereunder. The appointment of a successor Servicer
shall not affect any liability of the predecessor Servicer which may have arisen
prior to its termination as Servicer, and the appointment of a successor Special
Servicer shall not affect any liability of the predecessor Special Servicer
which may have arisen prior to its termination as Special Servicer. The Trustee
in its capacity as successor to the Servicer or the Special Servicer, as the
case may be, shall not be liable for any of the representations and warranties
of the Servicer or the Special Servicer, respectively, herein or in any related
document or agreement, for any acts or omissions of the predecessor Servicer or
Special Servicer or for any losses incurred by the Servicer pursuant to Section
3.06 hereunder, nor shall the Trustee be required to purchase any Mortgage Loan
hereunder solely as a result of its obligations as successor Servicer or Special
Servicer, as the case may be. Subject to Section 3.11, as compensation therefor,
the Trustee as successor Servicer shall be entitled to the Servicing Fees and
all fees relating to the Mortgage Loans which the Servicer would have been
entitled to if the Servicer had continued to act hereunder, including but not
limited to any income or other benefit from any Permitted Investment pursuant to
Section 3.06, and subject to Section 3.11, the Trustee as successor to the
Special Servicer shall be entitled to the Special Servicing Fees to which the
Special Servicer would have been entitled if the Special Servicer had continued
to act hereunder. Should the Trustee succeed to the capacity of the Servicer or
the Special Servicer, as the case may be, the Trustee shall be afforded the same
standard of care and liability as the Servicer or the Special Servicer, as
applicable, hereunder notwithstanding anything in Section 8.01 to the contrary,
but only with respect to actions taken by it in its role as successor Servicer
or successor Special Servicer, as the case may be, and not with respect to its
role as Trustee hereunder. Notwithstanding the above, the Trustee may, if it
shall be unwilling to act as successor to the Servicer, or shall, if it is
unable to so act, or if the Trustee is not approved as a servicer by each Rating
Agency, or if the Directing Certificateholder or the Holders of Certificates
entitled to at least 51% of the Voting Rights so request in writing to the
Trustee, promptly appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution which meets the
criteria set forth in Section 6.04 and otherwise herein, as the successor to the
Servicer or the Special Servicer, as applicable, hereunder in the assumption of
all or any part of the responsibilities, duties or liabilities of the Servicer
or Special Servicer hereunder. No appointment of a successor to the Servicer or
the Special Servicer hereunder shall be effective until the assumption in
writing by the successor to the Servicer or the Special Servicer of all its
responsibilities, duties and liabilities hereunder that arise thereafter and
upon Rating Agency confirmation, and which appointment has been approved by the
Directing Certificateholder, such approval not to be unreasonably withheld.
Pending appointment of a successor to the Servicer or the Special Servicer
hereunder, unless the Trustee or the Servicer, as applicable, shall be
prohibited by law from so acting, the Trustee or the Servicer, as applicable,
shall act in such capacity as herein above provided. In connection with such
appointment and assumption of a successor to the Servicer or Special Servicer as
described herein, the Trustee or the Servicer, as applicable, may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation with respect to a successor Servicer or successor Special Servicer,
as the case may be, shall be in excess of that permitted the terminated Servicer
or Special Servicer, as the case may be, hereunder. The Trustee, the Servicer or
the Special Servicer (whichever is not the terminated party) and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Any costs and expenses associated with the
transfer of the servicing function (other than with respect to a termination
without cause) under this Agreement shall be borne by the predecessor servicer.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Servicer or the Special Servicer pursuant to Section 7.02, the Paying Agent
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after the Paying Agent
would be deemed to have notice of the occurrence of such an event in accordance
with Section 8.02(vii), the Paying Agent shall transmit by mail to the Depositor
and all Certificateholders notice of such occurrence, unless such default shall
have been cured.
Section 7.04 Waiver of Events of Default.
The Holders of Certificates representing at least 662/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default within 20 days of the receipt
of notice from the Paying Agent of the occurrence of such Event of Default;
provided, however, that an Event of Default under clause (i) of Section 7.01(a)
may be waived only by all of the Certificateholders of the affected Classes.
Upon any such waiver of an Event of Default, such Event of Default shall cease
to exist and shall be deemed to have been remedied for every purpose hereunder.
Upon any such waiver of an Event of Default by Certificateholders, the Trustee
shall be entitled to recover all costs and expenses incurred by it in connection
with enforcement action taken with respect to such Event of Default prior to
such waiver from the Trust Fund. No such waiver shall extend to any subsequent
or other Event of Default or impair any right consequent thereon except to the
extent expressly so waived. Notwithstanding any other provisions of this
Agreement, for purposes of waiving any Event of Default pursuant to this Section
7.04, Certificates registered in the name of the Depositor or any Affiliate of
the Depositor shall be entitled to the same Voting Rights with respect to the
matters described above as they would if any other Person held such
Certificates.
Section 7.05 Trustee as Maker of Advances.
(a) In the event that the Servicer fails to fulfill its obligations
hereunder to make any Advances and such failure remains uncured, the Trustee
shall perform such obligations (x) within five Business Days following such
failure by the Servicer with respect to Servicing Advances resulting in an Event
of Default under Section 7.01(a)(iii) hereof to the extent a Responsible Officer
of the Trustee has actual knowledge of such failure with respect to such
Servicing Advances and (y) by noon, New York City time, on the related
Distribution Date with respect to P&I Advances pursuant to the Paying Agent's
notice of failure pursuant to Section 4.03(a) unless such failure has been
cured. With respect to any such Advance made by the Trustee, the Trustee shall
succeed to all of the Servicer's rights with respect to Advances hereunder,
including, without limitation, the Servicer's rights of reimbursement and
interest on each Advance at the Reimbursement Rate, and rights to determine that
a proposed Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the
case may be, (without regard to any impairment of any such rights of
reimbursement caused by such Servicer's default in its obligations hereunder);
provided, however, that if Advances made by both the Trustee and the Servicer
shall at any time be outstanding, or any interest on any Advance shall be
accrued and unpaid, all amounts available to repay such Advances and the
interest thereon hereunder shall be applied entirely to the Advances outstanding
to the Trustee, until such Advances shall have been repaid in full, together
with all interest accrued thereon, prior to reimbursement of the Servicer for
such Advances. The Trustee shall be entitled to conclusively rely on any notice
given with respect to a Nonrecoverable Advance hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE AND the PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee or the Paying Agent, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Paying Agent 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 or the Paying Agent shall notify the party providing such instrument
and requesting the correction thereof. The Trustee or the Paying 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 Servicer or the Special Servicer or another Person, and accepted
by the Trustee or the Paying Agent in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Paying Agent from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct or bad faith; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Paying Agent shall be liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee or the Paying Agent, respectively,
unless it shall be proved that the Trustee or the Paying Agent,
respectively, was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action).
(d) The Paying Agent shall promptly make available via its Internet
Website to each Companion Holder all reports that the Paying Agent has made
available to Certificateholders under this Agreement to the extent such reports
relate to the related AB Mortgage Loans.
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent.
Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent 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 and the Paying Agent 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) Neither the Trustee nor the Paying Agent shall be under any
obligation to exercise any of the trusts or powers vested in it by this
Agreement or to make any investigation of matters arising hereunder or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee or the Paying
Agent, as applicable, reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; neither
the Trustee nor the Paying Agent shall 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) Neither the Trustee nor the Paying Agent shall be liable for
any action reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, neither
the Trustee nor the Paying Agent shall be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to
do so by Holders of Certificates entitled to at least 50% of the Voting
Rights; provided, however, that if the payment within a reasonable time to
the Trustee or the Paying Agent 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 or the Paying Agent, respectively, not reasonably
assured to the Trustee or the Paying Agent by the security afforded to it
by the terms of this Agreement, the Trustee or the Paying Agent,
respectively, may require reasonable indemnity from such requesting
Holders against such expense or liability as a condition to taking any
such action. The reasonable expense of every such reasonable examination
shall be paid by the requesting Holders;
(vi) The Trustee or the Paying Agent may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys; provided, however, that the appointment of
such agents or attorneys shall not relieve the Trustee or the Paying Agent
of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office and such notice references the
Certificates or this Agreement; and
(viii) Neither the Trustee nor the Paying Agent shall be responsible
for any act or omission of the Servicer or the Special Servicer (unless
the Trustee is acting as Servicer or Special Servicer, as the case may be
in which case the Trustee shall only be responsible for its own actions as
Servicer or Special Servicer) or of the Depositor.
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the acknowledgments of the Trustee or the Paying Agent in Sections 2.02, 2.04
and 2.05 and the signature, if any, of the Certificate Registrar and
Authenticating Agent set forth on any outstanding Certificate, shall be taken as
the statements of the Depositor, the Servicer or the Special Servicer, as the
case may be, and the Trustee or the Paying Agent assume no responsibility for
their correctness. Neither the Trustee nor the Paying Agent makes any
representations as to the validity or sufficiency of this Agreement or of any
Certificate (other than as to the signature, if any, of the Trustee or the
Paying Agent set forth thereon) or of any Mortgage Loan or related document.
Neither the Trustee nor the Paying Agent shall be accountable for the use or
application by the Depositor of any of the Certificates issued to it or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor in respect of the assignment of the Mortgage Loans to the Trust
Fund, or any funds deposited in or withdrawn from the Certificate Account or any
other account by or on behalf of the Depositor, the Servicer, the Special
Servicer or in the case of the Trustee, the Paying Agent (unless the Trustee is
acting as Paying Agent). The Trustee and the Paying 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 Servicer or the Special Servicer and accepted by the Trustee, or
the Paying Agent, as applicable, in good faith, pursuant to this Agreement.
Section 8.04 Trustee or Paying Agent May Own Certificates.
The Trustee or the Paying Agent each in its individual capacity, not
as Trustee or Paying Agent, may become the owner or pledgee of Certificates, and
may deal with the Depositor, the Servicer, the Special Servicer, the Initial
Purchaser and the Underwriters in banking transactions, with the same rights it
would have if it were not Trustee or Paying Agent.
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and the Paying Agent.
(a) As compensation for the performance of their respective duties
hereunder, the Trustee will be paid the Trustee Fee and the Paying Agent will be
paid the Paying Agent Fee, in each case, equal to the Trustee's and the Paying
Agent's respective portion of one month's interest at the Trustee Fee Rate,
which shall cover recurring and otherwise reasonably anticipated expenses of the
Trustee and the Paying Agent, respectively. The Trustee Fee and the Paying Agent
Fee shall be paid monthly on a Mortgage Loan-by-Mortgage Loan basis. As to each
Mortgage Loan and REO Loan, the Trustee Fee and the Paying Agent Fee shall
accrue from time to time at the Trustee's and the Paying Agent's respective
portion of Trustee Fee Rate and shall be computed on the basis of the Stated
Principal Balance of such Mortgage Loan and a 360-day year consisting of twelve
30-day months. The Trustee Fee and the Paying Agent Fee (which shall not be
limited to any provision of law in regard to the compensation of a trustee of an
express trust) shall constitute the Trustee's and the Paying Agent's,
respectively, sole form of compensation for all services rendered by it in the
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties of the Trustee and the Paying Agent, respectively,
hereunder. No Trustee Fee shall be payable with respect to the Companion Loans.
(b) The Trustee, the Paying Agent and any director, officer,
employee or agent of the Trustee and the Paying Agent, respectively, shall be
entitled to be indemnified and held harmless by the Trust Fund (to the extent of
amounts on deposit in the Certificate Account or Lower-Tier Distribution Account
from time to time) against any loss, liability or expense (including, without
limitation, costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement, and expenses incurred
in becoming successor servicer or successor Special Servicer, to the extent not
otherwise paid hereunder) arising out of, or incurred in connection with, any
act or omission of the Trustee or the Paying Agent, respectively, relating to
the exercise and performance of any of the powers and duties of the Trustee or
the Paying Agent, respectively, hereunder; provided, however, that none of the
Trustee, the Paying Agent nor any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 8.05(b) for (i) allocable
overhead, (ii) expenses or disbursements incurred or made by or on behalf of the
Trustee or the Paying Agent, respectively, in the normal course of the Trustee's
or the Paying Agent's, respectively, performing its duties in accordance with
any of the provisions hereof, which are not "unanticipated expenses of the
REMIC" within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii),
(iii) any expense or liability specifically required to be borne thereby
pursuant to the terms hereof or (iv) any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence in the performance of the
Trustee's or the Paying Agent's, respectively, obligations and duties hereunder,
or by reason of negligent disregard of such obligations or duties, or as may
arise from a breach of any representation, warranty or covenant of the Trustee
or the Paying Agent, respectively, made herein. The provisions of this Section
8.05(b) shall survive the termination of this Agreement and any resignation or
removal of the Trustee or the Paying Agent, respectively, and appointment of a
successor thereto.
Section 8.06 Eligibility Requirements for Trustee and the Paying
Agent.
The Trustee and Paying Agent hereunder shall at all times be, and
will be required to resign if it fails to be, (i) a corporation, national bank,
national banking association or a trust company, organized and doing business
under the laws of any state or the United States of America, authorized under
such laws to exercise corporate trust powers and to accept the trust conferred
under this Agreement, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority and shall not be an Affiliate of the Servicer or the Special Servicer
(except during any period when the Trustee is acting as, or has become successor
to, the Servicer or the Special Servicer, as the case may be, pursuant to
Section 7.02), (ii) an institution insured by the Federal Deposit Insurance
Corporation and (iii) an institution whose long-term senior unsecured debt or
that of its fiscal agent is rated "Aa3" by Xxxxx'x and "A+" by S&P and whose
short-term debt is rated not less than "A-1" from S&P (or such entity as would
not, as evidenced in writing by such Rating Agency, result in the qualification,
downgrading or withdrawal of any of the ratings then assigned thereby to the
Certificates).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Paying Agent
administers the Upper-Tier REMIC and the Lower-Tier REMIC or in which the
Trustee's office is located is in a state or local jurisdiction that imposes a
tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Paying Agent or
the Trustee, as applicable shall elect either to (i) resign immediately in the
manner and with the effect specified in Section 8.07, (ii) pay such tax at no
expense to the Trust or (iii) administer the Upper-Tier REMIC and the Lower-Tier
REMIC from a state and local jurisdiction that does not impose such a tax.
Section 8.07 Resignation and Removal of the Trustee and Paying
Agent.
(a) The Trustee and the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Servicer, the Special Servicer and to all Certificateholders.
Upon receiving such notice of resignation, the Depositor shall promptly appoint
a successor trustee or paying agent acceptable to the Servicer by written
instrument, in duplicate, which instrument shall be delivered to the resigning
Trustee or Paying Agent and to the successor trustee or paying agent. A copy of
such instrument shall be delivered to the Servicer, the Special Servicer, the
Certificateholders and the Trustee or Paying Agent, as applicable, by the
Depositor. If no successor trustee or paying agent shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Paying Agent may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee or Paying Agent shall cease to be
eligible in accordance with the provisions of Section 8.06 and shall fail to
resign after written request therefor by the Depositor or the Servicer, or if at
any time the Trustee or Paying Agent shall become incapable of acting, or shall
be adjudged bankrupt or insolvent, or a receiver of the Trustee or Paying Agent
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or Paying Agent or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or if the Trustee or
Paying Agent (if different than the Trustee) shall fail (other than by reason of
the failure of either the Servicer or the Special Servicer to timely perform its
obligations hereunder or as a result of other circumstances beyond the Trustee's
or Paying Agent's, as applicable, reasonable control), to timely publish any
report to be delivered, published or otherwise made available by the Trustee or
Paying Agent, as applicable, pursuant to Section 4.02 and such failure shall
continue unremedied for a period of five days, or if the Trustee or Paying Agent
(if different from the Trustee) fails to make distributions required pursuant to
Sections 3.05(b), 4.01 or 9.01, then the Depositor may remove the Trustee or
Paying Agent, as applicable, and appoint a successor trustee or paying agent
acceptable to the Servicer or paying agent acceptable to the Trustee or Paying
Agent, as applicable, by written instrument, in duplicate, which instrument
shall be delivered to the Trustee or Paying Agent so removed and to the
successor trustee or paying agent in the case of the removal of the Trustee or
Paying Agent. A copy of such instrument shall be delivered to the Servicer, the
Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee or Paying Agent and appoint a
successor trustee or paying agent by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Servicer, one
complete set to the Trustee or Paying Agent so removed and one complete set to
the successor so appointed. A copy of such instrument shall be delivered to the
Depositor, the Special Servicer and the remaining Certificateholders by the
Servicer.
(d) Any resignation or removal of the Trustee or Paying Agent and
appointment of a successor Trustee or Paying Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee or Paying Agent as provided in Section
8.08.
Upon any succession of the Trustee or Paying Agent under this
Agreement, the predecessor Trustee or Paying Agent shall be entitled to the
payment of accrued and unpaid compensation and reimbursement as provided for
under this Agreement for services rendered and expenses incurred (including
without limitation, unreimbursed Advances). No Trustee or Paying Agent shall be
personally liable for any action or omission of any successor Trustee or Paying
Agent.
Section 8.08 Successor Trustee or Paying Agent.
(a) Any successor Trustee or Paying Agent appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the
Servicer, the Special Servicer and to its predecessor Trustee or Paying Agent an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee or Paying Agent shall become effective and
such successor Trustee or Paying Agent 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 or Paying Agent herein. The predecessor Trustee shall deliver
to the successor trustee all Mortgage Files and related documents and statements
held by it hereunder (other than any Mortgage Files at the time held on its
behalf by a Custodian, which Custodian, at Custodian's option shall become the
agent of the successor Trustee), and the Depositor, the Servicer, the Special
Servicer and the predecessor Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor Trustee all such rights, powers,
duties and obligations, and to enable the successor Trustee to perform its
obligations hereunder.
(b) No successor trustee or successor paying agent shall accept
appointment as provided in this Section 8.08 unless at the time of such
acceptance such successor trustee or successor paying agent, as applicable,
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee or
successor paying agent as provided in this Section 8.08, the Servicer shall mail
notice of the succession of such trustee or paying agent, as applicable, to the
Depositor and the Certificateholders. If the Servicer fails to mail such notice
within 10 days after acceptance of appointment by the successor Trustee or
successor paying agent, as applicable, such successor trustee or successor
paying agent, shall cause such notice to be mailed at the expense of the
Servicer.
Section 8.09 Merger or Consolidation of Trustee or Paying Agent.
Any Person into which the Trustee or the Paying 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 the Trustee or the Paying Agent
shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of the Trustee or the Paying Agent shall be the
successor of the Trustee or the Paying Agent, as applicable, hereunder;
provided, that, in the case of the Trustee, such successor Person shall be
eligible under the provisions of Section 8.06, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. The Trustee or the Paying
Agent, as applicable, will provide notice of such event to the Servicer, the
Special Servicer, the Depositor and the Rating Agencies.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
to do so, or in case an Event of Default shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof. All co-trustee fees shall be payable out of
the Trust Fund.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer or the Special Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Servicer, appoint one or
more Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution subject to supervision
by federal or state authority, shall have combined capital and surplus of at
least $15,000,000 and shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File and shall not be the Depositor or any Affiliate
of the Depositor. Each Custodian shall be subject to the same obligations and
standard of care as would be imposed on the Trustee hereunder in connection with
the retention of Mortgage Files directly by the Trustee. The appointment of one
or more Custodians shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of any Custodian. Any Custodian appointed hereunder must maintain a fidelity
bond and errors and omissions policy in an amount customary for Custodians which
serve in such capacity in commercial mortgage loan securitization transactions.
Section 8.12 Access to Certain Information.
(a) On or prior to the date of the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Paying Agent and the Trustee three copies of any private placement memorandum or
other disclosure document used by the Depositor or its Affiliate in connection
with the offer and sale of the Class of Certificates to which such
Non-Registered Certificate relates. In addition, if any such private placement
memorandum or disclosure document is revised, amended or supplemented at any
time following the delivery thereof to the Trustee and the Paying Agent, the
Depositor promptly shall inform the Trustee of such event and shall deliver to
the Paying Agent and the Trustee a copy of the private placement memorandum or
disclosure document, as revised, amended or supplemented. The Paying Agent (or
with respect to item (ii)(j) below, the Trustee) shall maintain at its offices
primarily responsible for administering the Trust Fund and shall, upon
reasonable advance notice, make available during normal business hours for
review by any Holder of a Certificate, the Depositor, the Servicer, the Special
Servicer, any Rating Agency or any other Person to whom the Paying Agent (or the
Trustee, if applicable) believes such disclosure is appropriate, originals or
copies of the following items: (i) in the case of a Holder or prospective
transferee of a Non-Registered Certificate, any private placement memorandum or
other disclosure document relating to the Class of Certificates to which such
Non-Registered Certificate belongs, in the form most recently provided to the
Paying Agent and (ii) in all cases, (a) this Agreement and any amendments hereto
entered into pursuant to Section 11.01, (b) all statements required to be
delivered to Certificateholders of the relevant Class pursuant to Section 4.02
since the Closing Date, (c) all Officer's Certificates delivered to the Trustee
and the Paying Agent since the Closing Date pursuant to Section 3.13, (d) all
accountants' reports delivered to the Trustee and the Paying Agent since the
Closing Date pursuant to Section 3.14, (e) any inspection report prepared by the
Servicer, Sub-Servicer or Special Servicer, as applicable, and delivered to the
Trustee and the Paying Agent and Servicer in respect of each Mortgaged Property
pursuant to Section 3.12(a), (f) as to each Mortgage Loan pursuant to which the
related Mortgagor is required to deliver such items or the Special Servicer has
otherwise acquired such items, the most recent annual operating statement and
rent roll of the related Mortgaged Property and financial statements of the
related Mortgagor and any other reports of the Mortgagor collected by the
Servicer, Sub-Servicer or Special Servicer, as applicable, and delivered to the
Paying Agent pursuant to Section 3.12(c), together with the accompanying written
reports to be prepared by the Special Servicer and delivered to the Paying Agent
pursuant to Section 3.12(c), (g) any and all notices, reports and Environmental
Assessments delivered to the Paying Agent with respect to any Mortgaged Property
securing a Defaulted Mortgage Loan as to which the environmental testing
contemplated by Section 3.09(c) revealed that either of the conditions set forth
in clauses (i) and (ii) of the first sentence thereof was not satisfied (but
only for so long as such Mortgaged Property or the related Mortgage Loan are
part of the Trust Fund), (h) any and all modifications, waivers and amendments
of the terms of a Mortgage Loan entered into by the Servicer or the Special
Servicer and delivered to the Paying Agent pursuant to Section 3.20 (but only
for so long as the affected Mortgage Loan is part of the Trust Fund), (i) any
and all Officer's Certificates delivered to the Paying Agent to support the
Servicer's determination that any P&I Advance or Servicing Advance was or, if
made, would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance,
as the case may be, (j) any and all of the Mortgage Loan documents contained in
the Mortgage File, (k) any and all Appraisals obtained pursuant to the
definition of "Appraisal Reduction" herein, (l) information regarding the
occurrence of Servicing Transfer Events as to the Mortgage Loans and (m) any and
all Sub-Servicing Agreements and any amendments thereto and modifications
thereof. Copies of any and all of the foregoing items will be available from the
Paying Agent upon request; provided, however, that the Paying Agent shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing such copies, except in the case of copies provided to
the Directing Certificateholder or the Rating Agencies, which shall be free of
charge (except for extraordinary or duplicate requests). In addition, without
limiting the generality of the foregoing, any Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class P and Class NR Certificateholder may upon
request from the Paying Agent obtain a copy of any factual report (other than
the Asset Status Report) delivered to the Rating Agencies under this Agreement.
(b) The Paying Agent shall provide or make available to certain
financial market publishers, which initially shall be Bloomberg, L.P., Xxxxx,
LLC, Intex and Standard & Poor's Conquest, on a monthly basis, all CMSA reports
and any other reports required to be delivered by the Paying Agent pursuant to
Article IV hereof. If such information delivered pursuant to the preceding
sentence is provided by the Paying Agent to Bloomberg on or before March 8,
2004, the Paying Agent shall provide the Prospectus to Bloomberg, L.P.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Paying Agent shall, in accordance with such reasonable rules and procedures as
each may adopt (which may include the requirement that an agreement that
provides that such information shall be used solely for purposes of evaluating
the investment characteristics of the Certificates be executed), also provide
the reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Paying Agent, to any
Certificateholder, the Underwriters, the Placement Agent, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the Paying
Agent, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Paying Agent
pursuant to this Section 8.12, the Paying Agent shall be entitled to indicate
the source of such information and the Paying Agent may affix thereto any
disclaimer it deems appropriate in its discretion. The Paying Agent shall notify
Certificateholders of the availability of any such information in any manner as
it, in its sole discretion, may determine. In connection with providing access
to or copies of the items described in the preceding paragraph, the Paying Agent
may require (a) in the case of Certificate Owners, a confirmation executed by
the requesting Person substantially in form and substance reasonably acceptable
to the Paying Agent, as applicable, generally to the effect that such Person is
a beneficial holder of Certificates, is requesting the information solely for
use in evaluating such Person's investment in the Certificates and will
otherwise keep such information confidential and (b) in the case of a
prospective purchaser, confirmation executed by the requesting Person in form
and substance reasonably acceptable to the Paying Agent, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Paying Agent shall not be liable for the dissemination of
information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to the Depositor, the
Servicer and the Special Servicer, the Paying Agent and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
Section 8.14 Representations and Warranties of the Paying Agent.
(a) The Paying Agent hereby represents and warrants to the
Depositor, the Servicer and the Special Servicer, the Trustee and for the
benefit of the Certificateholders, as of the Closing Date, that:
(i) The Paying Agent is a banking corporation, duly organized under
the laws of the State of New York, duly organized, validly existing and in
good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Paying
Agent, and the performance and compliance with the terms of this Agreement
by the Paying Agent, will not violate the Paying 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 the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets;
(iii) The Paying 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 each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Paying Agent, enforceable against the Paying
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 the rights of
creditors of national banking associations specifically and (b) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) The Paying 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 Paying Agent's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Paying Agent to perform its obligations under this
Agreement or the financial condition of the Paying Agent; and
(vi) No litigation is pending or, to the best of the Paying Agent's
knowledge, threatened against the Paying Agent which would prohibit the
Paying Agent from entering into this Agreement or, in the Paying Agent's
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Paying Agent to perform its obligations
under this Agreement or the financial condition of the Paying Agent.
(b) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Paying Agent, or compliance by the Paying Agent with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which has
not been obtained or cannot be obtained prior to the actual performance by the
Paying Agent of its obligations under this Agreement, and which, if not obtained
would not have a materially adverse effect on the ability of the Paying Agent to
perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Paying Agent, the
Depositor, the Servicer, the Special Servicer and the Trustee (other than the
obligations of the Paying Agent to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by the
Paying Agent on behalf of the Trustee and required hereunder to be so paid on
the Distribution Date following the earlier to occur of (i) the final payment
(or related Advance) or other liquidation of the last Mortgage Loan or REO
Property subject thereto or (ii) the purchase or other liquidation by the
Holders of the majority of the Controlling Class, the Special Servicer, the
Servicer or the Holders of the Class LR Certificates, in that order of priority,
of all the Mortgage Loans and each REO Property remaining in the Trust Fund at a
price equal to (a) the sum of (1) the aggregate Purchase Price of all the
Mortgage Loans (exclusive of REO Loans) included in the Trust Fund, (2) the
Appraised Value of each REO Property, if any, included in the Trust Fund (such
Appraisals in clause (a)(2) to be conducted by an Independent MAI-designated
appraiser selected and mutually agreed upon by the Servicer and the Trustee, and
approved by more than 50% of the Voting Rights of the Classes of Certificates
then outstanding (other than the Controlling Class unless the Controlling Class
is the only Class of Certificates then outstanding)) (which approval shall be
deemed given unless more than 50% of such Certificateholders object within 20
days of receipt of notice thereof) and (3) the reasonable out-of-pocket expenses
of the Servicer with respect to such termination, unless the Servicer is the
purchaser of such Mortgage Loans, minus (b) solely in the case where the
Servicer is effecting such purchase, the aggregate amount of unreimbursed
Advances, together with any interest accrued and payable to the Servicer in
respect of such Advances in accordance with Sections 3.03(d) and 4.03(d) and any
unpaid Servicing Fees, remaining outstanding (which items shall be deemed to
have been paid or reimbursed to the Servicer in connection with such purchase)
and (ii) the final payment or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in the Trust Fund;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. James's, living on the date hereof.
The obligations and responsibilities under this Agreement of the
Depositor, the Servicer, the Special Servicer, the Trustee and the Companion
Paying Agent shall terminate with respect to any Companion Loan to the extent
(i) the related AB Mortgage Loan has been paid in full or is no longer part of
the Trust Fund and (ii) no amounts payable by the related Companion Holder to or
for the benefit of the Trust or any party hereof in accordance with the related
Intercreditor Agreement remain due and owing.
The Holders of the majority of the Controlling Class, the Special
Servicer, the Servicer or the Holders of the Class LR Certificates, in that
order of priority, may, at their option, elect to purchase all of the Mortgage
Loans (and all property acquired through exercise of remedies in respect of any
Mortgage Loan) and each REO Property remaining in the Trust Fund as contemplated
by clause (i) of the preceding paragraph by giving written notice to the
Trustee, the Paying Agent and the other parties hereto no later than 60 days
prior to the anticipated date of purchase; provided, however, that the Servicer,
the Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates may so elect to purchase all of the Mortgage Loans and
each REO Property remaining in the Trust Fund only on or after the first
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of the Mortgage Loans set forth in
the Preliminary Statement. In the event that the Servicer, the Special Servicer,
the Holders of the Controlling Class or the Holders of the Class LR Certificates
purchases all of the Mortgage Loans and each REO Property remaining in the Trust
Fund in accordance with the preceding sentence, the Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class LR
Certificates, as applicable, shall deposit in the Lower-Tier Distribution
Account not later than the P&I Advance Date relating to the Distribution Date on
which the final distribution on the Certificates is to occur, an amount in
immediately available funds equal to the above-described purchase price
(exclusive of any portion thereof payable to any Person other than the
Certificateholders pursuant to Section 3.05(a), which portion shall be deposited
in the Certificate Account). In addition, the Servicer shall transfer to the
Lower-Tier Distribution Account all amounts required to be transferred thereto
on such P&I Advance Date from the Certificate Account pursuant to the first
paragraph of Section 3.04(b), together with any other amounts on deposit in the
Certificate Account that would otherwise be held for future distribution. Upon
confirmation that such final deposits have been made, the Trustee shall release
or cause to be released to the Servicer, the Special Servicer, the Holders of
the Controlling Class or the Holders of the Class LR Certificates, as
applicable, the Mortgage Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments furnished to it by
the Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates, as applicable, as shall be necessary to
effectuate transfer of the Mortgage Loans and REO Properties remaining in the
Trust Fund.
For purposes of this Section 9.01, the Holders of the majority of
the Controlling Class shall have the first option to terminate the Trust Fund,
then the Special Servicer, then the Servicer, and then the Holders of the Class
LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Paying Agent by letter to Certificateholders and each
Rating Agency and, if not previously notified pursuant to this Section 9.01, to
the other parties hereto mailed (a) in the event such notice is given in
connection with the purchase of all of the Mortgage Loans and each REO Property
remaining in the Trust Fund, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution on
the Certificates, or (b) otherwise during the month of such final distribution
on or before the P&I Advance Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated.
After transferring the Lower-Tier Regular Distribution Amount and
the amount of any Yield Maintenance Charges distributable pursuant to Section
4.01(d) to the Upper-Tier Distribution Account, in each case pursuant to Section
3.04(b), and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Upper-Tier Distribution Account that are
allocable to payments on the Class of Certificates so presented and surrendered
and to the Holders of the Class NR Certificates any amounts remaining on deposit
in the Excess Interest Distribution Account. Amounts transferred from the
Lower-Tier Distribution Account to the Upper-Tier Distribution Account as of the
final Distribution Date (exclusive of any portion of such amounts payable or
reimbursable to any Person pursuant to clause (ii) of Section 3.05(d)) shall be
allocated for the purposes, in the amounts and in accordance with the priority
set forth in Sections 4.01(b), 4.01(d) and 4.01(e), and shall be distributed in
termination and liquidation of the Uncertificated Lower-Tier Interests and the
Class LR Certificates in accordance with Sections 4.01(b), 4.01(d) and 4.01(e).
Any funds not distributed on such Distribution Date shall be set aside and held
uninvested in trust for the benefit of the Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner and shall be disposed of
in accordance with this Section 9.01 and Section 4.01(f).
Section 9.02 Additional Termination Requirements.
In the event the Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates purchases all of
the Mortgage Loans and each REO Property remaining in the Trust Fund as provided
in Section 9.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Paying Agent shall specify the date of adoption of the plan
of complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the
Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return pursuant to
Treasury Regulations Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Paying
Agent on behalf of the Trustee shall sell all of the assets of the Trust
Fund to the Servicer, the Special Servicer, the Holders of the Controlling
Class or the Holders of the Class LR Certificates, as applicable, for
cash; and
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Uncertificated Lower-Tier
Interests and the Certificates, the Paying Agent shall distribute or
credit, or cause to be distributed or credited, to the Holders of the
Class LR Certificates (in the case of the Lower-Tier REMIC) and the Class
R Certificates (in the case of the Upper-Tier REMIC) all cash on hand
(other than cash retained to meet claims), and the Trust Fund and the
Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at that time.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.
(a) The Paying Agent shall make elections or cause elections to be
made to treat each of the Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC
under the Code and, if necessary, under Applicable State and Local Tax Law. Such
elections shall be made on Form 1066 or other appropriate federal tax return for
the taxable year ending on December 31, 2004. For the purposes of the REMIC
election in respect of the Upper-Tier REMIC, each Class of the Regular
Certificates shall be designated as the "regular interests" (in the case of the
Class NR Certificates, exclusive of the portion thereof representing the right
to Excess Interest and amounts in the Excess Interest Distribution Account) and
the Class R Certificates shall be designated as the sole class of "residual
interests" in the Upper-Tier REMIC. For purposes of the REMIC election in
respect of the Lower-Tier REMIC, each Class of Uncertificated Lower-Tier
Interests shall be designated as the "regular interests" and the Class LR
Certificates shall represent the sole class of "residual interests" in the
Lower-Tier REMIC. None of the Special Servicer, the Servicer, the Paying Agent
nor the Trustee shall permit the creation of any "interests" (within the meaning
of Section 860G of the Code) in the Lower-Tier REMIC or the Upper-Tier REMIC
other than the foregoing interests.
(b) The Closing Date is hereby designated as the "Startup Day" of
each of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of
Section 860G(a)(9) of the Code.
(c) The Paying Agent shall act on behalf of each REMIC in relation
to any tax matter or controversy involving any REMIC hereunder and shall
represent any REMIC hereunder in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority with
respect thereto. The legal expenses, including without limitation attorneys' or
accountants' fees, and costs of any such proceeding and any liability resulting
therefrom shall be expenses of the Trust Fund and the Paying Agent shall be
entitled to reimbursement therefor out of amounts attributable to the Mortgage
Loans and any REO Properties on deposit in the Certificate Account as provided
by Section 3.05(a) unless such legal expenses and costs are incurred by reason
of the Paying Agent's willful misfeasance, bad faith or gross negligence. The
Holder of the largest Percentage Interest of the Class LR Certificates shall be
designated, in the manner provided under Treasury Regulations Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T, as the
"tax matters person" of the Lower-Tier REMIC. The Holder of the largest
Percentage Interest of the Class R Certificates shall be designated, in the
manner provided under Treasury Regulations Section 1.860F-4(d) and temporary
Treasury Regulations Section 301.6231(a)(7)-1T, as the "tax matters person" of
the Upper-Tier REMIC. By their acceptance thereof, the Holders of the largest
Percentage Interest in each of the Class R and Class LR Certificates hereby
agree to irrevocably appoint the Paying Agent as their agent to perform all of
the duties of the "tax matters person" for the Upper-Tier REMIC and the
Lower-Tier REMIC, respectively.
(d) The Paying Agent shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC,
and shall cause the Trustee to sign such Tax Returns in a timely manner. The
ordinary expenses of preparing such returns shall be borne by the Paying Agent
without any right of reimbursement therefor.
The Paying Agent agrees to indemnify and hold harmless the Trustee
with respect to any tax or liability arising from the Trustee's signing of Tax
Returns that contain errors or omissions.
(e) The Paying Agent shall provide or cause to be provided (i) to
any Transferor of a Class R Certificate or Class LR Certificate such information
as is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811, within 30
days after the Closing Date, the name, title, address and telephone number of
the "tax matters person" who will serve as the representative of each of the
Lower-Tier REMIC and the Upper-Tier REMIC.
(f) The Paying Agent shall take such actions and shall cause the
Trust Fund to take such actions as are reasonably within the Paying Agent's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status of each of the Lower-Tier REMIC and the
Upper-Tier REMIC as a REMIC under the REMIC Provisions (and the Trustee shall
assist the Paying Agent, to the extent reasonably requested by the Paying Agent
to do so). Neither the Servicer nor the Special Servicer shall knowingly or
intentionally take any action, cause the Trust Fund to take any action or fail
to take (or fail to cause to be taken) any action reasonably within its control
and the scope of duties more specifically set forth herein, that, under the
REMIC Provisions, if taken or not taken, as the case may be, could (i) endanger
the status of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (ii)
result in the imposition of a tax upon the Lower-Tier REMIC or the Upper-Tier
REMIC or the Trust Fund (including but not limited to the tax on "prohibited
transactions" as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code, but not
including the tax on "net income from foreclosure property") (either such event,
an "Adverse REMIC Event") unless the Paying Agent receives an Opinion of Counsel
(at the expense of the party seeking to take such action or, if such party fails
to pay such expense, and the Paying Agent determines that taking such action is
in the best interest of the Trust Fund and the Certificateholders, at the
expense of the Trust Fund, but in no event at the expense of the Paying Agent or
the Trustee) to the effect that the contemplated action will not, with respect
to the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC created
hereunder, endanger such status or, unless the Paying Agent determines in its
sole discretion to indemnify the Trust Fund against such tax, result in the
imposition of such a tax (not including a tax on "net income from foreclosure
property"). The Trustee shall not take or fail to take any action (whether or
not authorized hereunder) as to which the Paying Agent has advised it in writing
that it has received an Opinion of Counsel to the effect that an Adverse REMIC
Event could occur with respect to such action. In addition, prior to taking any
action with respect to the Trust Fund, the Lower-Tier REMIC, the Upper-Tier
REMIC or any of their respective assets, or causing the Trust Fund, the
Lower-Tier REMIC or Upper-Tier REMIC to take any action, which is not expressly
permitted under the terms of this Agreement, the Trustee will consult with the
Paying Agent or its designee, in writing, with respect to whether such action
could cause an Adverse REMIC Event to occur with respect to the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC and the Trustee shall not take any such
action or cause the Trust Fund, the Lower-Tier REMIC or the Upper-Tier to take
any such action as to which the Paying Agent has advised it in writing that an
Adverse REMIC Event could occur. The Paying Agent may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take the action not expressly permitted by this Agreement, but in no
event at the expense of the Paying Agent or the Trustee. At all times as may be
required by the Code, the Paying Agent will to the extent within its control and
the scope of its duties more specifically set forth herein, maintain
substantially all of the assets of each of the Lower-Tier REMIC and the
Upper-Tier REMIC as "qualified mortgages" as defined in Section 860G(a)(3) of
the Code and "permitted investments" as defined in Section 860G(a)(5) of the
Code.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on the Lower-Tier REMIC or the Upper-Tier REMIC, such tax shall
be charged against amounts otherwise distributable to the Holders of the
Certificates, except as provided in the last sentence of this Section 10.01(g);
provided that with respect to the estimated amount of tax imposed on any "net
income from foreclosure property" pursuant to Code Section 860G(c) or any
similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised by
the Trustee in writing), and shall remit to the Servicer such reserved amounts
as the Servicer shall request in order to pay such taxes. Except as provided in
the preceding sentence, the Servicer shall withdraw from the Certificate Account
sufficient funds to pay or provide for the payment of, and to actually pay, such
tax as is estimated to be legally owed by the Lower-Tier REMIC or the Upper-Tier
REMIC (but such authorization shall not prevent the Paying Agent from
contesting, at the expense of the Trust Fund (other than as a consequence of a
breach of its obligations under this Agreement), any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The Paying Agent is hereby authorized to and
shall segregate, into a separate non-interest bearing account, the net income
from any "prohibited transaction" under Code Section 860F(a) or the amount of
any taxable contribution to the Lower-Tier REMIC or the Upper-Tier REMIC after
its respective Startup Day that is subject to tax under Code Section 860G(d) and
use such income or amount, to the extent necessary, to pay such prohibited
transactions tax. To the extent that any such tax (other than any such tax paid
in respect of "net income from foreclosure property") is paid to the Internal
Revenue Service or applicable state or local tax authorities, the Paying Agent
shall retain an equal amount from future amounts otherwise distributable to the
Holders of Residual Certificates (as applicable) and shall distribute such
retained amounts, (x) in the case of the Lower-Tier REMIC, to the Trustee as
holder of the Uncertificated Lower-Tier Interests to the extent it is fully
reimbursed for any Collateral Support Deficit arising therefrom and then to the
Holders of the Class LR Certificates in the manner specified in Section 4.01(b)
and (y) in the case of the Upper-Tier REMIC, to the Holders of Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class P, Class NR, Class X-1 and Class X-2 in the manner
specified in Section 4.01(a), to the extent they are fully reimbursed for any
Collateral Support Deficit arising therefrom and then to the Holders of the
Class R Certificates. None of the Trustee, the Paying Agent, the Servicer or the
Special Servicer shall be responsible for any taxes imposed on the Lower-Tier
REMIC or the Upper-Tier REMIC except to the extent such taxes arise as a
consequence of a breach of their respective obligations under this Agreement
which breach constitutes willful misfeasance, bad faith, or negligence by such
party.
(h) The Trustee (but only to the extent, if any, specifically
required to maintain books and records hereunder) and the Paying Agent shall,
for federal income tax purposes, maintain books and records with respect to each
of the Lower-Tier REMIC and the Upper-Tier REMIC on a calendar year and on an
accrual basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, neither the Paying Agent nor the
Trustee shall accept any contributions of assets to the Lower-Tier REMIC and the
Upper-Tier REMIC unless the Paying Agent and the Trustee shall have received an
Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in the Lower-Tier
REMIC or the Upper-Tier REMIC will not (i) cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interests or Certificates are outstanding or (ii)
subject any of the Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to
any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(j) Neither the Paying Agent nor the Trustee shall enter into any
arrangement by which the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC will receive a fee or other compensation for services nor permit the Trust
Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of the
Code or "permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date," by which (i) the
Certificate Balance or Notional Amount of each Class of Certificates (other than
the Class X-2 Certificates) representing a "regular interest" in the Upper-Tier
REMIC and (ii) the Lower-Tier Principal Amount of each Class of Uncertificated
Lower-Tier Interests representing a "regular interest" in the Lower-Tier REMIC
would be reduced to zero, is the Rated Final Distribution Date. The "latest
possible maturity date" of the Class X-2 Certificates is the Class X-2
Termination Date.
(l) None of the Trustee, the Servicer or the Special Servicer, as
applicable, shall sell, dispose of or substitute for any of the Mortgage Loans
(except in connection with (i) the default, imminent default or foreclosure of a
Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgaged Property acquired by foreclosure or deed in lieu of foreclosure, (ii)
the bankruptcy of the Trust Fund, (iii) the termination of the Trust Fund
pursuant to Article IX of this Agreement or (iv) a purchase of Mortgage Loans
pursuant to Article II or III of this Agreement) or acquire any assets for the
Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC or sell or dispose of
any investments in the Certificate Account or the REO Account for gain unless it
has received an Opinion of Counsel that such sale, disposition or substitution
will not (a) affect adversely the status of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or (b) unless the Servicer or the Special Servicer,
as applicable, has determined in its sole discretion to indemnify the Trust Fund
against such tax, cause the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC to be subject to a tax on "prohibited transactions" pursuant to the REMIC
Provisions.
Section 10.02 Depositor, Servicer and Special Servicer to Cooperate
with Paying Agent.
(a) The Depositor shall provide or cause to be provided to the
Paying Agent, within 10 days after the Closing Date, all information or data
that the Paying Agent reasonably determines to be relevant for tax purposes as
to the valuations and issue prices of the Certificates, including, without
limitation, the price, yield, Prepayment Assumption and projected cash flow of
the Certificates.
(b) The Servicer, the Special Servicer, the Paying Agent and the
Trustee shall each furnish such reports, certifications and information, and
upon reasonable notice and during normal business hours, access to such books
and records maintained thereby, as may relate to the Certificates or the Trust
Fund and as shall be reasonably requested by the Paying Agent in order to enable
it to perform its duties hereunder.
Section 10.03 Use of Agents.
The Paying Agent shall execute all of its obligations and duties
under this Article X through its corporate trust department located at 0 Xxx
Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Trustee may execute any of
its obligations and duties under this Article X either directly or by or through
agents or attorneys. The Paying Agent shall not be relieved of any of its duties
or obligations under this Article X by virtue of the appointment of any such
agents or attorneys.
Section 10.04 Appointment of REMIC Administrators.
(a) The Paying Agent may appoint at the Paying Agent's expense, one
or more REMIC Administrators, which shall be authorized to act on behalf of the
Paying Agent in performing the functions set forth in Sections 2.03, 10.01 and
10.02 herein. The Paying Agent shall cause any such REMIC Administrator to
execute and deliver to the Paying Agent an instrument in which such REMIC
Administrator shall agree to act in such capacity, with the obligations and
responsibilities herein. The appointment of a REMIC Administrator shall not
relieve the Paying Agent from any of its obligations hereunder, and the Paying
Agent shall remain responsible and liable for all acts and omissions of the
REMIC Administrator. Each REMIC Administrator must be acceptable to the Paying
Agent and must be organized and doing business under the laws of the United
States of America or of any State and be subject to supervision or examination
by federal or state authorities. In the absence of any other Person appointed in
accordance herewith acting as REMIC Administrator, the Paying Agent hereby
agrees to act in such capacity in accordance with the terms hereof. If JPMorgan
Chase Bank is removed as Paying Agent, then JPMorgan Chase Bank, shall be
terminated as REMIC Administrator.
(b) Any Person into which any REMIC 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 REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Paying
Agent or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Servicer, the Special Servicer and
the Depositor. The Paying Agent may at any time terminate the agency of any
REMIC Administrator by giving written notice of termination to such REMIC
Administrator, the Servicer, the Certificate Registrar and the Depositor. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time any REMIC Administrator shall cease to be eligible in accordance with the
provisions of this Section 10.04, the Paying Agent may appoint a successor REMIC
Administrator, in which case the Paying Agent shall given written notice of such
appointment to the Servicer and the Depositor and shall mail notice of such
appointment to all Certificateholders; provided, however, that no successor
REMIC Administrator shall be appointed unless eligible under the provisions of
this Section 10.04. Any successor REMIC 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 REMIC Administrator. No REMIC Administrator shall have
responsibility or liability for any action taken by it as such at the direction
of the Paying Agent.
[End of Article X]
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders or the Companion
Holders:
(i) to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder;
(ii) to correct or supplement any provisions herein or in the
Prospectus or Prospectus Supplement, which may be inconsistent with any
other provisions herein or therein or to correct any error to the extent
it does not materially and adversely affect the interests of any
Certificateholder, as evidenced by an Opinion of Counsel (at the expense
of the party requesting the amendment);
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC, or the Grantor Trust
as a grantor trust at all times that any Certificate is outstanding or to
avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either of the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC, provided that the Trustee has
received an Opinion of Counsel (at the expense of the party requesting the
amendment) to the effect that (a) such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of the
imposition of any such tax and (b) such action will not adversely affect
in any material respect the interests of any Certificateholder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account, provided
that (a) the P&I Advance Date shall in no event be later than the related
Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel (at the expense of the party requesting the amendment),
adversely affect in any material respect the interests of any
Certificateholder and (c) such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(c)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being "residual interests" in a REMIC
provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC
or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder not
consenting thereto (y) result in the downgrade, withdrawal or
qualification of the then-current rating assigned to any Class of
Certificates, as evidenced by a letter from each Rating Agency to such
effect;
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency provided that such change shall not
result in the downgrade, withdrawal or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by a letter
from each Rating Agency to such effect; provided that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller under a
Mortgage Loan Purchase Agreement without the consent of each affected
Mortgage Loan Seller;
(viii) to modify the provisions of Section 3.19(e) hereof if (1) the
Depositor, the Servicer and the Trustee determine that the commercial
mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such
modification does not adversely affect the status of the Upper-Tier REMIC
or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion of Counsel
and (3) each Rating Agency has delivered written confirmation that such
modification would not cause the downgrade, withdrawal or qualification of
any of the then current ratings of any class of Certificates; and
(ix) to modify Section 3.05(a), if the Depositor and the Servicer
determine that the commercial mortgage backed securities industry standard
for the reimbursements of Workout-Delayed Reimbursement Amounts from the
interest collections on the Mortgage Loans has changed, in order to
conform to such industry standard, as long as (1) the Depositor, the
Servicer, the Special Servicer, Paying Agent and the Trustee mutually
agree to such modification, (2) such modification does not adversely
affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel
shall be an expense of the party requesting such amendment) and (3) each
Rating Agency has delivered written confirmation that such modification
would not cause the downgrade, withdrawal or qualification of any of the
then current ratings of any class of Certificates.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 662/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain the consent of the holder of the
Companion Loan, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding or the holder of the Companion
Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such
amendment would not result in the downgrading, qualification or withdrawal
of ratings assigned to any Class of Certificates by any Rating Agency,
amend the Servicing Standards.
(c) Notwithstanding the foregoing, neither the Trustee nor the
Paying Agent will be entitled to consent to any amendment hereto without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the effect
that such amendment is permitted hereunder and that such amendment or the
exercise of any power granted to the Servicer, the Depositor, the Special
Servicer, the Trustee or any other specified person in accordance with such
amendment will not result in the imposition of a tax on any portion of the Trust
Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or the Grantor Trust, cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC, or cause
the Grantor Trust to fail to qualify as a grantor trust.
(d) Promptly after the execution of any such amendment, the Paying
Agent shall furnish a statement describing the amendment to each
Certificateholder and the Trustee and shall furnish a copy of such amendment to
each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Paying Agent may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Servicer or the Trustee requests any amendment of
this Agreement in furtherance of the rights and interests of Certificateholders,
the cost of any Opinion of Counsel required in connection therewith pursuant to
Section 11.01(a) or (c) shall be payable out of the Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates.
Section 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee at the expense of the Depositor on direction by the
Special Servicer and with the consent of the Depositor (which may not be
unreasonably withheld), but only upon direction accompanied by an Opinion of
Counsel (the cost of which shall be paid by the Depositor) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee and the Paying Agent a written notice of default hereunder, and of the
continuance thereof, as herein before provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates of any Class
evidencing not less than 25% of the related Percentage Interests in such Class
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Holders of Certificates unless such Holders have offered to the Trustee
reasonable security against the costs, expenses and liabilities which may be
incurred therein or hereby. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03(c), each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
Section 11.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given if personally delivered at or couriered, sent by facsimile
transmission or mailed by registered mail, postage prepaid (except for notices
to the Trustee which shall be deemed to have been duly given only when
received), to: (i) in the case of the Depositor, X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxx, Vice President, telecopy number: (000) 000-0000,
with a copy to Xxxxxx Xxxxx, Esq., telecopy number: (000) 000-0000; (ii) in the
case of the Servicer, GMAC Commercial Mortgage Corporation, 000 Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Managing Director, Commercial Servicing
Operations, Re: JPMorgan Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004 CIBC8, telecopy number: (215)
328-3620; (iii) in the case of the Special Servicer, Midland Loan Services,
Inc., 10851 Xxxxxx, Building 00, 0xx Xxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000,
Attention: President, telecopy number: (000) 000-0000; (iv) in the case of the
Trustee, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000-0000; Attention: Corporate Trust (CMBS), JPMorgan Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8, telecopy number: (000) 000-0000; (v) in the case of the initial
Paying Agent and the initial Authenticating Agent, JPMorgan Chase Bank, 0 Xxx
Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (212)
623-5858, Attention: Institutional Trust Services; (vi) in the case of the
Certificate Registrar, JPMorgan Chase Bank, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx
00000, telecopy number: (000) 000-0000, Attention: Real Estate Structured
Finance X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC8; (vii) in the case of the
Rating Agencies, (a) Xxxxx'x Investors Services, Inc., 00 Xxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage Surveillance
Group, telecopy number: (000) 000-0000; and (b) Standard and Poor's Ratings
Services, a division of the McGraw Hill Companies, Inc., 00 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: CMBS Surveillance Group, telecopy
number: 000-000-0000; (viii) in the case of the Mortgage Loan Sellers, (a)
JPMorgan Chase Bank, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxx, Vice President, telecopy number: (000) 000-0000; and
(b) CIBC Inc., 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Real Estate Finance Group, telecopy number: (000) 000-0000; (ix) in the case of
the Directing Certificateholder, Banc One Capital Corporation, 00 Xxxx Xxxxxx,
00xx Xxxxx, Xxxxx XX 0-0000, Xxxxxxx, XX 00000, Attention: Xxxxxxxx X. Xxxxx,
telecopy number: (000) 000-0000; (x) with respect to the Forum Shops Companion
Notes, X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, Vice President, telecopy
number: (000) 000-0000; (xi) in the case of the Companion Holder with respect to
the the Xxxxxxxx Crossing Companion Loan, Parkwood Apartments Companion Loan and
the Hebron Heights Companion Loan, CBA-Mezzanine Capital Finance, LLC, 00 XXX
Xxxxxxx, 0xx xxxxx, Xxxxx Xxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx,
telecopy number: (000) 000-0000; (xii) in the case of the Companion Holder with
respect to the Central Park Office Companion Loan, the Grandview Xxxxxxx
Companion Loan and the Xxxxxxxx Apartments Companion Loan, LaSalle Bank National
Association, 000 X. XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Asset Backed Securities Trust Services Group Mezz Cap Commercial
Mortgage Trust, Commercial Mortgage Pass Through Certificates, Series 2004-C1,
telecopy number: (000) 000 0000; (xiii) in the case of the Harbor Plaza
Mezzanine Lender, Teachers Insurance and Annuity Association of America, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxx-Real Estate
Mezzanine Group, telecopy number: (000) 000-0000; (xiv) in the case of the PHH
Vehcile Management Services Mezzanine Lender, National City Bank, 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, Attention: Xxxxxx X. Xxxxx, Vice
President, Investment Real Estate Division, Locator No. 01-2152, with a copy to
Xxxxx Xxxx LLP, 00 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxx 00000, Attention:
Xxxxxxx Xxxxx, Esq. and (xv) in the case of any of the preceding parties, such
other address as may hereafter be furnished to the other party in writing by
such parties. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets comprising the Trust Fund,
including without limitation, the Mortgage Loans, all principal and interest
received or receivable with respect to the Mortgage Loans (other than principal
and interest payments due and payable prior to the Cut-off Date and Principal
Prepayments received prior to the Cut-off Date), all amounts held from time to
time in the Certificate Account, the Lower-Tier Distribution Accounts, the
Upper-Tier Distribution Account, the Gain-on-Sale Reserve Account, the Excess
Interest Distribution Account, the Interest Reserve Account and, if established,
the REO Account, and all reinvestment earnings on such amounts, and all of the
Depositor's right, title and interest in and to the proceeds of any title,
hazard or other Insurance Policies related to such Mortgage Loans and (ii) this
Agreement shall constitute a security agreement under applicable law. This
Section 11.07 shall constitute notice to the Trustee pursuant to any of the
requirements of the applicable UCC.
Section 11.08 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. No
other person, including, without limitation, any Mortgagor, shall be entitled to
any benefit or equitable right, remedy or claim under this Agreement.
Section 11.09 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 11.10 Notices to the Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Paying Agent, the
Servicer or the Special Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 6 of the Mortgage Loan Purchase Agreement.
(b) The Servicer shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Servicer and the Special
Servicer shall promptly furnish to each Rating Agency copies of inspection
reports and other items delivered to each of the Servicer and Special Servicer
pursuant to Sections 3.12(a) and 3.12(b).
(d) The Paying Agent shall promptly furnish notice to the Rating
Agencies of (i) any change in the location of either of the Distribution
Accounts and (ii) the final payment to any Class of Certificateholders.
(e) The Trustee, the Paying Agent, the Servicer and the Special
Servicer, as applicable, shall furnish to each Rating Agency with respect to
each Mortgage Loan such information as the Rating Agency shall reasonably
request and which the Trustee, the Servicer or Special Servicer, can reasonably
provide in accordance with applicable law and without waiving any
attorney-client privilege relating to such information or violating the terms of
this Agreement or any Mortgage Loan documents. The Trustee, the Paying Agent,
the Servicer and Special Servicer, as applicable, may include any reasonable
disclaimer it deems appropriate with respect to such information.
Notwithstanding anything to the contrary herein, nothing in this Section 11.10
shall require a party to provide duplicative notices or copies to the Rating
Agencies with respect to any of the above listed items.
[End of Article XI]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP.,
Depositor
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Servicer
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
MIDLAND LOAN SERVICES, INC.,
Special Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A.,
Trustee
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
JPMORGAN CHASE BANK,
Paying Agent
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Trust Officer
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of March 2004, before me, a notary public in and for
said State, personally appeared Xxxxxx X. Xxxxx, known to me to be Vice
President of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxxx Xxxxxx
--------------------------------------
Notary Public
[Notarial Seal]
XXXXXXXXX XXXXXX
Notary Public, State of New York
No. 01 DI6003689
Qualified in New York County
Commission Expires April 14, 0000
XXXXX XX XXXXXXXXXXXX )
) ss.:
COUNTY OF XXXXXXXXXX )
On the 30th day of March 2004, before me, a notary public in and for
said State, personally appeared Xxxxxx Xxxxxxxxxx, known to me to be a
Vice President of GMAC Commercial Mortgage Corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxx
--------------------------------------
Notary Public
[Notarial Seal]
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
XXXXXXX XXXXX, Notary Public
Horsham Township, Xxxxxxxxxx County
My Commission Expires November 15, 0000
XXXXX XX XXXXXX )
) ss.:
COUNTY OF XXXXXXX )
On the 26th day of March 2004, before me, a notary public in and for
said State, personally appeared Xxxxxxxx X. Xxxxxx, known to me to be a Senior
Vice President of Midland Loan Services, Inc., that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such national banking association, and acknowledged to me that such national
banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxx
--------------------------------------
Notary Public
[Notarial Seal]
XXXXX XXXX
NOTARY PUBLIC - State of Kansas
My Appt. Exp. 6/11/06
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 31st day of March 2004, before me, a notary public in and for
said State, personally appeared Xxxxxxx Xxxxxxx, known to me to be a Vice
President of Xxxxx Fargo Bank, N.A., that executed the within instrument, and
also known to me to be the person who executed it on behalf of such national
banking association, and acknowledged to me that such national banking
association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx Xxxxx
--------------------------------------
Notary Public
[Notarial Seal]
XXXXXXXX XXXXX
Notary Public, State of New York
No. 01HS6097721
Qualified in Nassau County
Commission Expires Aug. 25, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 31st day of March 2004, before me, a notary public in and for
said State, personally appeared Xxxxx Xxxxxxx, known to me to be a
Trust Officer of JPMorgan Chase Bank, that executed the within instrument,
and also known to me to be the person who executed it on behalf of such national
banking association, and acknowledged to me that such national banking
association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Notary Public
[Notarial Seal]
XXXXXXXX X. XXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Kings County
Commission Expires April 22, 2007
Exhibit A-1
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: [___]% SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $80,000,000
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: JPMORGAN CHASE BANK
DEFINED HEREIN)
CUSIP NO.: 00000XX00
CLOSING DATE: MARCH 31, 2004
ISIN NO.: US46625MZ853
FIRST DISTRIBUTION DATE:
APRIL 12, 2004
COMMON CODE NO.: 018991241
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-1-1
OF THE CLASS A-1 CERTIFICATES
AS OF THE CLOSING DATE: $80,000,000
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1 Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________________
Dated:__________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-2
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: [___]% SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $188,000,000
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: JPMORGAN CHASE BANK
DEFINED HEREIN)
CUSIP NO.: 00000XX00
CLOSING DATE: MARCH 31, 2004
ISIN NO.: US46625MZ937
FIRST DISTRIBUTION DATE:
APRIL 12, 2004
COMMON CODE NO.: 018991373
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-2-1
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $188,000,000
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2 Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Certificate Registrar, the Paying Agent nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________________
Dated:__________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distribution shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________ for the account of
_______________________ account number ______ or, if mailed by check, to
___________________________. This information is provided by assignee named
above, or ___________________, as its agent.
Exhibit A-3
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS A-3
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: [___]% SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $110,000,000
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: JPMORGAN CHASE BANK
DEFINED HEREIN)
CUSIP NO.: 00000X0X0
CLOSING DATE: MARCH 31, 2004
ISIN NO.: US46625M2A69
FIRST DISTRIBUTION DATE:
APRIL 12, 2004
COMMON CODE NO.: 018991438
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-3-1
OF THE CLASS A-3 CERTIFICATES
AS OF THE CLOSING DATE: $110,000,000
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class A-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3 Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Certificate Registrar, the Paying Agent nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________________
Dated:__________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distribution shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________ for the account of
_______________________ account number ______ or, if mailed by check, to
___________________________. This information is provided by assignee named
above, or ___________________, as its agent.
Exhibit A-4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS A-4
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: [___]% SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $349,357,000
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: JPMORGAN CHASE BANK
DEFINED HEREIN)
CUSIP NO.: 46625M 2B 4
CLOSING DATE: MARCH 31, 2004
ISIN NO.: US46625M2B43
FIRST DISTRIBUTION DATE:
APRIL 12, 2004
COMMON CODE NO.: 018994321
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-4-1
OF THE CLASS A-4 CERTIFICATES
AS OF THE CLOSING DATE: $349,357,000
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class A-4 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-4 Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-4 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Certificate Registrar, the Paying Agent nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________________
Dated:__________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distribution shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________ for the account of
_______________________ account number ______ or, if mailed by check, to
___________________________. This information is provided by assignee named
above, or ___________________, as its agent.
Exhibit A-5
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS A-1A
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
PASS-THROUGH RATE: [___]% SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $344,749,000 OR AS
OTHERWISE SET FORTH ON SCHEDULE A SPECIAL SERVICER: MIDLAND LOAN SERVICES,
HERETO INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF MARCH 31, 2004
PAYING AGENT: JPMORGAN CHASE BANK
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CUSIP NO.: [U48138 QD 3](1) [00000X0X0](2)
[46625M 2M 0](3)
CLOSING DATE: MARCH 31, 2004
ISIN NO.: [USU48138QD38](1)
[US46625M2L25](2) [US46625M2M08](3)
FIRST DISTRIBUTION DATE:
APRIL 12, 2004
COMMON CODE NO.:
[018994666](1)[018994631](2)[18994674](3)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-1A CERTIFICATES CERTIFICATE NO.: A-1A-1
AS OF THE CLOSING DATE:
$344,749,000
--------------------
(1) For Book Entry Regulation S Certificates Only.
(2) For Book Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class A-1A Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1A Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1A Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________________
Dated:__________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS X-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS X-1 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-1 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
THE PASS-THROUGH RATE ON THE CLASS X-1 SERVICER: GMAC COMMERCIAL MORTGAGE
CERTIFICATES WILL BE EQUAL TO, FOR ANY CORPORATION
DISTRIBUTION DATE, THE CLASS X-1
PASS-THROUGH RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: MIDLAND LOAN
SERVICES, INC.
DENOMINATION: $[500,000,000]
[500,000,000] [253,925,805] OR AS TRUSTEE: XXXXX FARGO BANK, N.A.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO
PAYING AGENT: JPMORGAN CHASE BANK
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
CUSIP NO.: [U48138 QB 7](1)
[00000X0X0](2) [00000X0X0](3)
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [USU48138QB71](1)
[US46625M2G30](2) [US46625M2H13](3)
CLOSING DATE: MARCH 31, 2004
COMMON CODE:
[018994470](1)[018994461](2)
[18994518](3)
FIRST DISTRIBUTION DATE:
APRIL 12, 2004
CERTIFICATE NO.: X-1-[1][2][3]
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X-1 CERTIFICATES AS OF THE
CLOSING DATE: $1,253,925,805
------------------
(1) For Book Entry Regulation S Certificates Only.
(2) For Book Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS X-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class X-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Special Servicer,
the Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC8 and are issued in classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-1 Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X-1 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Notional Amount of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Notional
interest in this Amount of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________________
Dated:__________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS X-2
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS X-2 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-2 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
THE PASS-THROUGH RATE ON THE CLASS X-2 SERVICER: GMAC COMMERCIAL MORTGAGE
CERTIFICATES WILL BE EQUAL TO, FOR ANY CORPORATION
DISTRIBUTION DATE, THE CLASS X-2
PASS-THROUGH RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: MIDLAND LOAN
SERVICES, INC.
DENOMINATION: $[500,000,000]
[500,000,000] [215,678,000] OR AS TRUSTEE: XXXXX FARGO BANK, N.A.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO
PAYING AGENT: JPMORGAN CHASE BANK
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
CUSIP NO.: [U48138 QC 5](1)
[00000X0X0](2) [00000X0X0](3)
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [USU48138QC54](1)
[US46625M2J78](2) [US46625M2K42](3)
CLOSING DATE: MARCH 31, 2004
COMMON CODE:
[018994615](1)[018994526](2)
[18994607](3)
FIRST DISTRIBUTION DATE:
APRIL 12, 2004
CERTIFICATE NO.: X-2-[1][2][3]
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X-1 CERTIFICATES AS OF THE
CLOSING DATE: $1,215,678,000
-------------------
(1) For Book Entry Regulation S Certificates Only.
(2) For Book Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS X-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class X-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Special Servicer,
the Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC8 and are issued in classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-2 Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X-2 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Notional Amount of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Notional
interest in this Amount of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________________
Dated:__________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PASS-THROUGH RATE: [___]% SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $31,348,000
SPECIAL SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: JPMORGAN CHASE BANK
DEFINED HEREIN)
CUSIP NO.: 00000X0X0
CLOSING DATE: MARCH 31, 2004
ISIN NO.: US46625M2C26
FIRST DISTRIBUTION DATE:
APRIL 12, 2004
COMMON CODE NO.: 018994348
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: B-1
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $31,348,000
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent, and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________________
Dated:__________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS
ON THE CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO
THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY
BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS
CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PASS-THROUGH RATE: [___]% SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $14,107,000
SPECIAL SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: JPMORGAN CHASE BANK
DEFINED HEREIN)
CUSIP NO.: 00000X0X0
CLOSING DATE: MARCH 31, 2004
ISIN NO.: US46625M2D09
FIRST DISTRIBUTION DATE:
APRIL 12, 2004
COMMON CODE NO.: 018994364
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: C-1
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $14,107,000
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan and the remaining in the Trust Fund, and thereby
effect termination of the Trust Fund and early retirement of the then
outstanding Certificates, on any Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________________
Dated:__________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS
ON THE CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO
THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY
BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS
CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PASS-THROUGH RATE: [___]% SUBJECT SERVICER: GMAC COMMERCIAL MORTGAGE
TO A MAXIMUM RATE AS SET FORTH IN THE CORPORATION
POOLING AND SERVICING AGREEMENT
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DENOMINATION: $28,213,000 INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF MARCH 31, 2004
PAYING AGENT: JPMORGAN CHASE BANK
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CUSIP NO.: 00000X0X0
CLOSING DATE: MARCH 31, 2004 ISIN NO.: US46625M2E81
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 018994402
APRIL 12, 2004
CERTIFICATE NO.: D-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $28,213,000
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee and each of the other
parties to the Pooling and Servicing Agreement, to purchase all, but not less
than all, of the Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining in the Trust Fund, and thereby effect termination of the
Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS E
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS
ON THE CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO
THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY
BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS
CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PASS-THROUGH RATE: [___]% SUBJECT SERVICER: GMAC COMMERCIAL MORTGAGE
TO A MAXIMUM RATE AS SET FORTH IN THE CORPORATION
POOLING AND SERVICING AGREEMENT
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DENOMINATION: $14,107,000 INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF MARCH 31, 2004
PAYING AGENT: JPMORGAN CHASE BANK
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CUSIP NO.: 00000X0X0
CLOSING DATE: MARCH 31, 2004 ISIN NO.: US46625M2F56
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 018994445
APRIL 12, 2004
CERTIFICATE NO.: E-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $14,107,000
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Account) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $1 initial Certificate Balance, and in integral
multiples of $10,000 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
THE PASS-THROUGH RATE: VARIABLE IN SERVICER: GMAC COMMERCIAL MORTGAGE
ACCORDANCE WITH THE POOLING AND CORPORATION
SERVICING AGREEMENT
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DENOMINATION: $15,674,000 OR AS INC.
OTHERWISE SET FORTH ON
SCHEDULE A HERETO
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004 PAYING AGENT: JPMORGAN CHASE BANK
CUT-OFF DATE: AS DEFINED IN THE CUSIP NO.: [X00000XX0](1) [00000X0X0](2)
POOLING AND SERVICING AGREEMENT (AS [00000X0X0](3)
DEFINED HEREIN)
ISIN NO.: [USU48138QE11](1)
CLOSING DATE: MARCH 31, 2004 [US46625M2N80](1) [US46625M2P39](2)
FIRST DISTRIBUTION DATE: COMMON CODE NO.:
APRIL 12, 2004 [018994801]1[018994739]2[18994755](3)
APPROXIMATE AGGREGATE CERTIFICATE NO.: F-1
CERTIFICATE BALANCE
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $15,674,000
-----------------
(1) For Book Entry Regulation S Certificates Only.
(2) For Book Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
THE PASS-THROUGH RATE: VARIABLE IN SERVICER: GMAC COMMERCIAL MORTGAGE
ACCORDANCE WITH THE POOLING AND CORPORATION
SERVICING AGREEMENT
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DENOMINATION: $12,539,000 OR AS INC.
OTHERWISE SET FORTH ON
SCHEDULE A HERETO
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
PAYING AGENT: JPMORGAN CHASE BANK
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [X00000XX0](1) [00000X0X0](2)
DEFINED HEREIN) [00000X0X0](3)
CLOSING DATE: MARCH 31, 2004 ISIN NO.: [USU48138QF85](1)
[US46625M2Q12](2) [US46625M2R94(3)
FIRST DISTRIBUTION DATE:
APRIL 12, 2004 COMMON CODE NO.: [018995000](1)
[018994933](2) [18994968](3)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: G-1
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $12,539,000
------------------
(1) For Book Entry Regulation S Certificates Only.
(2) For Book Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE pooling and servicing agreement SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
THE PASS-THROUGH RATE: VARIABLE IN SERVICER: GMAC COMMERCIAL MORTGAGE
ACCORDANCE WITH THE POOLING AND CORPORATION
SERVICING AGREEMENT
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DENOMINATION: $18,809,000 OR AS INC.
OTHERWISE SET FORTH ON
SCHEDULE A HERETO
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
PAYING AGENT: JPMORGAN CHASE BANK
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [X00000XX0](1) [00000X0X0](2)
DEFINED HEREIN) [00000X0X0](3)
CLOSING DATE: MARCH 31, 2004 ISIN NO.: [USU48138QG68](1)
[US46625M2S77](2) [US46625M2T50](3)
FIRST DISTRIBUTION DATE:
APRIL 12, 2004 COMMON CODE NO.:
[018995085](1) [018995069](2)
[18995131](3)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: H-1
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $18,809,000
----------------------
(1) For Book Entry Regulation S Certificates Only.
(2) For Book Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the Grantor Trust
as a grantor trust at all times any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or either of
the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that would be
a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on the Upper-Tier REMIC
or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3 101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
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 SERVICER, THE SPECIAL SERVICER, THE
PAYING AGENT, 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. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
---------------------------------
(19) For Book Entry Regulation S Certificates Only.
PASS-THROUGH RATE: [___]% SUBJECT TO A SERVICER: GMAC COMMERCIAL MORTGAGE
MAXIMUM RATE AS SET FORTH IN THE CORPORATION
POOLING AND SERVICING AGREEMENT
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DENOMINATION: $6,270,000 OR AS INC.
OTHERWISE SET FORTH ON
SCHEDULE A HERETO
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
PAYING AGENT: JPMORGAN CHASE BANK
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [X00000XX0](1) [00000X0X0(2)
DEFINED HEREIN) [00000X0X0](3)
CLOSING DATE: MARCH 31, 2004 ISIN NO.: [USU48138QH42](1)
[US46625M2U24](2) [US46625M2V07](3)
FIRST DISTRIBUTION DATE:
APRIL 12, 2004 COMMON CODE NO.:
[018995328](1) [018995204](2)
[18995247](3)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: J-1
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $6,270,000
------------------------
(1) For Book Entry Regulation S Certificates Only.
(2) For Book Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [_____________]
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee, and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3 101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
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 SERVICER, THE SPECIAL SERVICER, THE
PAYING AGENT, 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. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
-------------------
(22) For Book Entry Regulation S Certificates Only.
PASS-THROUGH RATE: [___]% SUBJECT TO A SERVICER: GMAC COMMERCIAL MORTGAGE
MAXIMUM RATE AS SET FORTH IN THE CORPORATION
POOLING AND SERVICING AGREEMENT
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DENOMINATION: $6,269,000 OR AS INC.
OTHERWISE SET FORTH ON
SCHEDULE A HERETO
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
PAYING AGENT: JPMORGAN CHASE BANK
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [X00000XX0](1) [00000X0X0](2)
DEFINED HEREIN) [00000X0X0](3)
CLOSING DATE: MARCH 31, 2004 ISIN NO.: [USU48138QJ08](1)
[US46625M2W89](2) [US46625M2X62](3)
FIRST DISTRIBUTION DATE:
APRIL 12, 2004 COMMON CODE NO.:
[018995476](1) [018995344](2)
[18995441](3)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: K-1
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $6,269,000
-------------------------
(1) For Book Entry Regulation S Certificates Only.
(2) For Book Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class K Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-17
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3 101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
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 SERVICER, THE SPECIAL SERVICER, THE
PAYING AGENT, 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. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
------------------------
(1) For Book Entry Regulation S Certificates Only.
PASS-THROUGH RATE: [___]% SUBJECT TO A SERVICER: GMAC COMMERCIAL MORTGAGE
MAXIMUM RATE AS SET FORTH IN THE CORPORATION
POOLING AND SERVICING AGREEMENT
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DENOMINATION: $6,270,000 OR AS INC.
OTHERWISE SET FORTH ON
SCHEDULE A HERETO
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
PAYING AGENT: JPMORGAN CHASE BANK
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [X00000XX0](1) [00000X0X0](2)
DEFINED HEREIN) [00000X0X0](3)
CLOSING DATE: MARCH 31, 2004 ISIN NO.: [USU48138QK70](1)
[US46625M2Y46](2) [US46625M2Z11](3)
FIRST DISTRIBUTION DATE:
APRIL 12, 2004 COMMON CODE NO.:
[018995808](1) [018995719](2)
[18995751](3)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: L-1
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $6,270,000
------------------------
(1) For Book Entry Regulation S Certificates Only.
(2) For Book Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class L
Certificates. The Certificates are designated as the X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class L Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Paying
Agent, the Special Servicer, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-18
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3 101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
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 SERVICER, THE SPECIAL SERVICER, THE
PAYING AGENT, 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. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------------------
(1) For Book Entry Regulation S Certificates Only.
PASS-THROUGH RATE: [___]% SUBJECT TO A SERVICER: GMAC COMMERCIAL MORTGAGE
MAXIMUM RATE AS SET FORTH IN THE CORPORATION
POOLING AND SERVICING AGREEMENT
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DENOMINATION: $4,702,000 OR AS INC.
OTHERWISE SET FORTH ON
SCHEDULE A HERETO
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
PAYING AGENT: JPMORGAN CHASE BANK
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [X00000XX0](1) [00000X0X0](2)
DEFINED HEREIN) [00000X0X0](3)
CLOSING DATE: MARCH 31, 2004 ISIN NO.: [USU48138QL53](1)
[US46625M3A50](2) [US46625M3B34](3)
FIRST DISTRIBUTION DATE:
APRIL 12, 2004 COMMON CODE NO.:
[018995913](1) [018995859](2)
[18995905](3)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: M-1
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $4,702,000
-----------------------
(1) For Book Entry Regulation S Certificates Only.
(2) For Book Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer and the
Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer , the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee and each of the other
parties to the Pooling and Servicing Agreement, to purchase all, but not less
than all, of the Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining in the Trust Fund, and thereby effect termination of the
Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-19
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3 101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
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 SERVICER, THE SPECIAL SERVICER, THE
PAYING AGENT, 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. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------------------------
(1) For Book Entry Regulation S Certificates Only.
PASS-THROUGH RATE: [___]% SUBJECT TO A SERVICER: GMAC COMMERCIAL MORTGAGE
MAXIMUM RATE AS SET FORTH IN THE CORPORATION
POOLING AND SERVICING AGREEMENT
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DENOMINATION: $4,702,000 OR AS INC.
OTHERWISE SET FORTH ON
SCHEDULE A HERETO
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
PAYING AGENT: JPMORGAN CHASE BANK
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [X00000XX0](1) [00000X0X0](2)
DEFINED HEREIN) [00000X0X0](3)
CLOSING DATE: MARCH 31, 2004 ISIN NO.: [USU48138QM37](1)
[US46625M3C17](2) [US46625M3D99](3)
FIRST DISTRIBUTION DATE:
APRIL 12, 2004 COMMON CODE NO.:
[018996022](1) [018995956](2)
[18995999](3)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: N-1
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $4,702,000
---------------------------------
(1) For Book Entry Regulation S Certificates Only.
(2) For Book Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class N
Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class N Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Paying
Agent, the Special Servicer, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee and each of the other
parties to the Pooling and Servicing Agreement, to purchase all, but not less
than all, of the Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining in the Trust Fund, and thereby effect termination of the
Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-20
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS P
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3 101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
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 SERVICER, THE SPECIAL SERVICER, THE
PAYING AGENT, 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. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT].34
-------------------------
(1) For Book Entry Regulation S Certificates Only.
PASS-THROUGH RATE: [___]% SUBJECT TO A SERVICER: GMAC COMMERCIAL MORTGAGE
MAXIMUM RATE AS SET FORTH IN THE CORPORATION
POOLING AND SERVICING AGREEMENT
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DENOMINATION: $3,135,000 OR AS INC.
OTHERWISE SET FORTH ON
SCHEDULE A HERETO
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
PAYING AGENT: JPMORGAN CHASE BANK
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [X00000XX0](1) [00000X0X0](2)
DEFINED HEREIN) [00000X0X0](3)
CLOSING DATE: MARCH 31, 2004 ISIN NO.: [USU48138QN10](1)
[US46625M3E72](2) [US46625M3F48](3)
FIRST DISTRIBUTION DATE:
APRIL 12, 2004 COMMON CODE NO.:
[018996090](1) [018996049](2)
[18996065](3)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: P-1
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $3,135,000
------------------------
(1) For Book Entry Regulation S Certificates Only.
(2) For Book Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class P Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class P
Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class P Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Paying
Agent, the Special Servicer, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee and each of the other
parties to the Pooling and Servicing Agreement, to purchase all, but not less
than all, of the Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining in the Trust Fund, and thereby effect termination of the
Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS NR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS NR CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE REPRESENTS (1) A REMIC REGULAR
INTEREST AND (2) AN INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3 101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
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 SERVICER, THE SPECIAL SERVICER, THE
PAYING AGENT, 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. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
-------------------------
(1) For Book Entry Regulation S Certificates Only.
PASS-THROUGH RATE: [___]% SUBJECT TO A SERVICER: GMAC COMMERCIAL MORTGAGE
MAXIMUM RATE AS SET FORTH IN THE CORPORATION
POOLING AND SERVICING AGREEMENT
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DENOMINATION: $15,674,805 OR AS INC.
OTHERWISE SET FORTH ON
SCHEDULE A HERETO
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 31, 2004
PAYING AGENT: JPMORGAN CHASE BANK
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [X00000XX0](1) [00000X0X0](2)
DEFINED HEREIN) [00000X0X0](3)
CLOSING DATE: MARCH 31, 2004 ISIN NO.: [USU48138QP67](1)
[US46625M3G21](2) [US46625M3H04](3)
FIRST DISTRIBUTION DATE:
APRIL 12, 2004 COMMON CODE NO.:
[018996189](1) [018996138](2)
[18996146](3)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: NR-1
OF THE CLASS NR CERTIFICATES
AS OF THE CLOSING DATE: $15,674,805
-------------------------
(1) For Book Entry Regulation S Certificates Only.
(2) For Book Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS NR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [______________]
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004(the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class NR
Certificates. The Certificates are designated as the X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 and are issued in classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate represents (i) a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended
(the "Code") and (ii) a beneficial interest in a grantor trust under Subpart E,
Part I of Subchapter J of the Code with respect to the Excess Interest. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NR Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent and the Trustee
mutually agree to such modification, (2) such modification does not adversely
affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as
evidenced by an Opinion of Counsel (which Opinion of Counsel shall be an expense
of the party requesting such amendment) and (3) each Rating Agency has delivered
written confirmation that such modification would not cause the downgrade,
withdrawal or qualification of any of the then current ratings of any class of
Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-22
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (B) FOR SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN,
AS DEFINED IN SECTION 3(32) OF ERISA, OR A CHURCH PLAN, AS DEFINED IN SECTION
3(33) OF ERISA FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE
CODE, SUBJECT TO ANY FEDERAL, STATE OR, LOCAL LAW WHICH IS, TO A MATERIAL
EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A
"PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE CODE. EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS
DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFERABILITY TO DISQUALIFIED ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF
EITHER, AS SET FORTH IN SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT, AND
SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR, THE PAYING AGENT
AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT A
DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5),
OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH
DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT HAS
HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO PAY ITS DEBTS
AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT IT MAY INCUR TAX
LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH FLOWS GENERATED
HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE
AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS
CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED
BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR
ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS SERVICER: GMAC COMMERCIAL MORTGAGE
CERTIFICATE: [100]% CORPORATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: MIDLAND LOAN SERVICES,
AGREEMENT: AS OF MARCH 31, 2004 INC.
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: XXXXX FARGO BANK, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
PAYING AGENT: JPMORGAN CHASE BANK
CLOSING DATE: MARCH 31, 2004
CERTIFICATE NO.: R-1
FIRST DISTRIBUTION DATE:
APRIL 12, 2004
CLASS R PERCENTAGE INTEREST: [100]%
CUSIP: [X00000XX0]
ISIN: [USU48138QQ41]
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts, with respect to
the Mortgage Loans, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [_______________]
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC8 and are issued in classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent to
the extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under Section 5.02(c) of the
Pooling and Servicing Agreement to deliver payments to a Person other than such
Person. The rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions: (A) No Person
holding or acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class R Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class R Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; (D) The Transferee will not cause the income with respect to any Class
R Certificate to be attributable to a foreign permanent establishment or fixed
base (within the meaning of an applicable income tax treaty) of such Transferee
or any other Person; and (E) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class R Certificate and (2) not to
transfer its Ownership Interest in such Class R Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or result
in the imposition of a tax on the Upper-Tier REMIC or the Lower-Tier REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
Exhibit A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-CIBC8, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (B) FOR SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN,
AS DEFINED IN SECTION 3(32) OF ERISA, OR A CHURCH PLAN, AS DEFINED IN SECTION
3(33) OF ERISA FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE
CODE, SUBJECT TO ANY FEDERAL, STATE OR, LOCAL LAW WHICH IS, TO A MATERIAL
EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A
"PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE CODE. EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS
DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFERABILITY TO DISQUALIFIED ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF
EITHER, AS SET FORTH IN SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT, AND
SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR, THE PAYING AGENT
AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT A
DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5),
OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH
DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT HAS
HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO PAY ITS DEBTS
AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT IT MAY INCUR TAX
LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH FLOWS GENERATED
HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE
AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS
CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED
BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR
ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS SERVICER: GMAC COMMERCIAL MORTGAGE
CERTIFICATE: [100]% CORPORATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: MIDLAND LOAN SERVICES,
AGREEMENT: AS OF MARCH 31, 2004 INC.
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: XXXXX FARGO BANK, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
PAYING AGENT: JPMORGAN CHASE BANK
CLOSING DATE: MARCH 31, 2004
CERTIFICATE NO.: LR-1
FIRST DISTRIBUTION DATE:
APRIL 12, 2004
CLASS LR PERCENTAGE INTEREST: [100]%
CUSIP: [X00000XX0]
ISIN: [USU48138QR24]
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, all payments on or collections in respect of the Mortgage Loans due after
the Cut-off Date, all REO Properties and revenues received in respect thereof,
the mortgagee's rights under the Insurance Policies, any Assignment of Leases,
and any guaranties, escrow accounts or other collateral as security for the
Mortgage Loans, and such amounts, as shall from time to time be held in the
Certificate Account, the Distribution Accounts, the Interest Reserve Account,
the Excess Interest Distribution Account, the Gain-on-Sale Reserve Account and
the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [_________________]
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC8 and are issued in classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Class LR Certificate represents the "residual interest" in a
"real estate mortgage investment conduit," as those terms are defined,
respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of
1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees
to treat, and take no action inconsistent with the treatment of, this
Certificate in accordance with the preceding sentence for purposes of federal
income taxes, state and local income and franchise taxes and other taxes imposed
on or measured by income. The Holder of the largest Percentage Interest in the
Class LR Certificates shall be the "tax matters person" for the Lower-Tier REMIC
pursuant to Treasury Regulations Section 1.860F-4(d), and the Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent to
the extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class LR Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under Section 5.02(b) of the
Pooling and Servicing Agreement to deliver payments to a Person other than such
Person. The rights of each Person acquiring any Ownership Interest in a Class LR
Certificate are expressly subject to the following provisions: (A) No Person
holding or acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class LR Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class LR Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class LR Certificate to such proposed Transferee
shall be effected; (D) The Transferee will not cause the income with respect to
any Class LR Certificate to be attributable to a foreign permanent establishment
or fixed base (within the meaning of an applicable income tax treaty) of such
Transferee or any other Person; and (E) Each Person holding or acquiring any
Ownership Interest in a Class LR Certificate shall agree (1) to require a
Transfer Affidavit from any prospective Transferee to whom such Person attempts
to transfer its Ownership Interest in such Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class LR Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders or the Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder, to correct or
supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error to the extent it does not materially and adversely affect the
interests of any Certificateholder, as evidenced by an Opinion of Counsel (at
the expense of the party requesting the amendment); to modify, eliminate or add
to any provisions to such extent as is necessary to maintain the qualification
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or the
Grantor Trust as a grantor trust at all times any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund or
either of the Lower-Tier REMIC or the Upper Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
avoid or minimize the risk of the imposition of any such tax; to change the
timing and/or nature of deposits into the Certificate Account, Distribution
Accounts or REO Account, provided, however, that the P&I Advance Date shall not
be later than the related Distribution Date, an Opinion of Counsel is obtained
to the effect that such action shall not adversely affect in any material
respect the interest of any Certificateholder and that such action will not
result in the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; (vii) to amend or supplement any provision of the Pooling
and Servicing Agreement to the extent necessary to maintain the rating or
ratings assigned to each Class of Certificates by each Rating Agency; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect; provided further, that no
such amendment may change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; (viii) to modify the provisions of Section
3.19(e) hereof if (1) the Depositor and the Servicer determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (2) such modification
does not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC, as evidenced by an opinion of counsel and (3) each Rating
Agency has delivered written confirmation that such modification would not cause
the downgrade, withdrawal or qualification of any of the then-current rating
assigned to any Class of Certificates and (ix) to modify Section 3.05(a), if the
Depositor and the Servicer determine that the commercial mortgage backed
securities industry standard for the reimbursements of Workout-Delayed
Reimbursement Amounts from the interest collections on the Mortgage Loans has
changed, in order to conform to such industry standard, as long as (1) the
Depositor, the Servier, the Special Servicer, Paying Agent, the Trustee and the
Fisal Agent mutually agree to such modification, (2) such modification does not
adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall be
an expense of the party requesting such amendment) and (3) each Rating Agency
has delivered written confirmation that such modification would not cause the
downgrade, withdrawal or qualification of any of the then current ratings of any
class of Certificates.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to a holder of the Companion Loan, without the consent of such
holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain the consent of the holder of the Companion Loan, in any
such case without the consent of the Holders of all Certificates of such Class
then outstanding or the holder of the Companion Loan, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of each
affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the holders of the Companion Loans or written confirmation that such amendment
would not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
Dated: [______________]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT _______ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(As delivered to the Trustee on the Closing Date)
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
JPMorgan Chase Bank
as Certificate Registrar
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Global Debt
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance Securitization Group
Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8
--------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of March 31, 2004 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as Depositor, GMAC Commercial Mortgage Corporation, as Servicer, Midland
Loan Services, Inc., as Special Servicer, Xxxxx Fargo Bank, N.A., as Trustee and
JPMorgan Chase Bank, as Paying Agent, on behalf of the holders of X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8 (the "Certificates") in connection with the
transfer by _________________ (the "Seller") to the undersigned (the
"Purchaser") of $_______________ aggregate Certificate Balance of Class ___
Certificates (the "Certificate"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents and
warrants to you and the addressees hereof as follows:
1. Check one of the following:*
/ / The Purchaser is not purchasing a Class R or Class LR Certificate
and the Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act")) and has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Certificates, and the
Purchaser and any accounts for which it is acting are each able to
bear the economic risk of the Purchaser's or such account's
investment. The Purchaser is acquiring the Certificates purchased by
it for its own account or for one or more accounts (each of which is
an "institutional accredited investor") as to each of which the
Purchaser exercises sole investment discretion. The Purchaser hereby
undertakes to reimburse the Trust Fund for any costs incurred by it
in connection with this transfer.
---------------
* Purchaser must include one of the following two certifications.
/ / The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). The Purchaser is
aware that the transfer is being made in reliance on Rule 144A, and
the Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, (ii)
(other than with respect to a Residual Certificate) to institutional "accredited
investors" meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the Securities Act or (iii) (other than with
respect to a Residual Certificate) pursuant to any other exemption from the
registration requirements of the Securities Act, subject in the case of clauses
(ii) and (iii) above to (w) the receipt by the Certificate Registrar of a letter
substantially in the form hereof, (x) the receipt by the Certificate Registrar
of an opinion of counsel acceptable to the Certificate Registrar that such
reoffer, resale, pledge or transfer is in compliance with the Securities Act,
(y) the receipt by the Certificate Registrar of such other evidence acceptable
to the Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the Securities Act and other applicable laws and (z) a written
undertaking to reimburse the Trust for any costs incurred by it in connection
with the proposed transfer. The Purchaser understands that the Certificate (and
any subsequent Certificate) has not been registered under the Securities Act, by
reason of a specified exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the Purchaser's investment intent (or intent to resell to only certain investors
in certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum relating to
the Certificates (the "Private Placement Memorandum") and the agreements and
other materials referred to therein and has had the opportunity to ask questions
and receive answers concerning the terms and conditions of the transactions
contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the Securities Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Pooling and Servicing Agreement in its capacity as an owner of a
Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:**
/ / The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
/ / The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld
by the Paying Agent (or its agent) with respect to distributions to
---------
** Each Purchaser must include one of the two alternative certifications.
be made on the Certificate. The Purchaser has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Purchaser as the beneficial owner of the Certificate and states
that such Purchaser is not a U.S. Person, (ii) IRS Form W-8IMY (with
all appropriate attachments) or (iii)]*** two duly executed copies
of IRS Form W-8ECI (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state that
interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS
Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]*** any
applicable successor IRS forms, or such other certifications as the
Certificate Registrar may reasonably request, on or before the date
that any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a change in
the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity created or organized in, or
under the laws of, the United States, any State thereof or the District of
Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
8. Please make all payments due on the Certificates:****
/ / (a) by wire transfer to the following account at a bank or entity
in New York, New York, having appropriate facilities therefor:
Bank:_________________________________________________
ABA #:________________________________________________
Account #:____________________________________________
Attention:____________________________________________
/ / (b) by mailing a check or draft to the following address:
--------------
*** Does not apply to a transfer of Class R or Class LR Certificates.
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
9. If the Purchaser is purchasing a Class R or Class LR Certificate,
the Purchaser is not a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes), any interest in which is
owned, directly or indirectly, through one or more partnerships, trusts or other
pass-through entities by a non-U.S. Person.
Very truly yours,
_________________________________________
[The Purchaser]
By:___________________________________
Name:
Title:
Dated:
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION
860E(e)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which he makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ].
3. That the Transferee of a X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC8,
Class [R] [LR] Certificate (the "Class [R] [LR] Certificate") is not a
Disqualified Organization (as defined below) or an agent thereof
(including nominee, middleman or other similar person) (an "Agent"), an
ERISA Prohibited Holder or a Non-U.S. Person (as defined below). For these
purposes, a "Disqualified Organization" means any of (i) the United
States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing
(other than an instrumentality which is a corporation if all of its
activities are subject to tax and, majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from
the tax imposed by Chapter 1 of the Code (including the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code and (v) any other Person so designated by the Servicer based upon
an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause either of the Upper-Tier
REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or any Person
having an Ownership Interest in any Class of Certificates (other than such
Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United
States," "State" and "international organization" shall have the meanings
set forth in Section 7701 of the Code or successor provisions. For these
purposes, "ERISA Prohibited Holder" means an employee benefit plan subject
to Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Code, or a governmental plan (as
defined in Section 3(32) of ERISA) or a church plan (as defined in Section
3(33) of ERISA) for which no election has been made under Section 410(d)
of the Code subject to any federal, state or local law which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code
(each, a "Plan") or a person acting on behalf of or investing the assets
of such a Plan. For these purposes, "Non-U.S. Person" means any person
other than a U.S. Person (within the meaning of Section 7701(a)(30) of the
Code), unless, with respect to the Transfer of a Residual Certificate, (i)
such person holds such Residual Certificate in connection with the conduct
of a trade or business within the United States and furnishes the
Transferor and the Certificate Registrar with an effective Internal
Revenue Service Form W-8ECI or (ii) the Transferee delivers to both the
Transferor and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that such Transfer is in accordance
with the requirements of the Code and the regulations promulgated
thereunder and that such Transfer of the Residual Certificate will not be
disregarded for federal income tax purposes; provided, that a partnership
(including any entity treated as a partnership for U.S. federal income tax
purposes) shall be considered a Non-U.S. Person (and clause (i) of this
sentence shall not apply) if any of its interests are owned, directly or
indirectly, through one or more partnerships, trusts or other pass-through
entities, by any person that is not a U.S. Person.
4. That the Transferee historically has paid its debts as they have come due
and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities with
respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR] Certificate
to any Person or entity unless (a) the Transferee has received from such
Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a
letter substantially in the form of Exhibit D-2 to the Pooling and
Servicing Agreement certifying that it has no actual knowledge that such
Person or entity is a Disqualified Organization or an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person and that it has no reason to
know that such Person or entity does not satisfy the requirements set
forth in paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and Servicing
Agreement, dated as of March 31, 2004 (the "Pooling and -------------
Servicing Agreement") among X.X. Xxxxxx Xxxxx Commercial Mortgage
--------------------- Securities Corp., as Depositor, GMAC Commercial
Mortgage Corporation, as Servicer, Midland Loan Services, Inc., as Special
Servicer, Xxxxx Fargo Bank, N.A., as Trustee and JPMorgan Chase Bank, as
Paying Agent, as may be required to further effectuate the restrictions on
transfer of the Class [R] [LR] Certificate to such a Disqualified
Organization or an Agent thereof, an ERISA Prohibited Holder or a Non-U.S.
Person. To the extent not defined herein, the capitalized terms used
herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
8. That, if a "tax matters person" is required to be designated with respect
to the [Upper-Tier REMIC] [Lower-Tier REMIC], the Transferee agrees to act
as "tax matters person" and to perform the functions of "tax matters
person" of the [Upper-Tier REMIC] [Lower-Tier REMIC] pursuant to Section
10.01(c) of the Pooling and Servicing Agreement, and agrees to the
irrevocable designation of the Trustee as the Transferee's agent in
performing the function of "tax matters person."
9. That the Transferee has reviewed, and agrees to be bound by and to abide
by, the provisions of Section 5.02(c) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of Class
[R] [LR] Certificates.
10. That the Transferee will not cause income from the Class [R][LR]
Certificate to be attributable to a foreign permanent establishment or
fixed base, within the meaning of an applicable income tax treaty, of the
Transferee or any other U.S. Person.
11. Check one of the following:
/ / That the present value of the anticipated tax liabilities
associated with holding the Class [R] [LR] Certificate does not exceed the sum
of:
(i) the present value of any consideration given to the Transferee
to acquire such Class [R][LR] Certificate;
(ii) the present value of the expected future distributions on such
Class [R] [LR] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Class [R] [LR] Certificate as the related
REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
/ / That the transfer of the Class [R] [LR] Certificate complies
with U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Sections 1.860E-1(c)(6)(i), as to
which income from Class [R] [LR] Certificate will only be
taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulation Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class [R] [LR] 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 U.S. Treasury
Regulations Sections 1.860G-1(c)(4)(i), (ii) and (iii) and
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Class [R] [LR] Certificate based on reasonable
market assumptions (including, but not limited to, borrowing
and investment rates, prepayment and loss assumptions, expense
and reinvestment assumptions, tax rates and other factors
specific to the Transferee) that it has determined in good
faith.
/ / None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of __________,
20__.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 20__.
______________________________
NOTARY PUBLIC
COUNTY OF ____________________
STATE OF ____________________
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
JPMorgan Chase Bank
as Authenticating Agent
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Institutional Trust Services - JPMC 2004-CIBC8
JPMorgan Chase Bank
as Certificate Registrar
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Institutional Trust Services - JPMC 2004-CIBC8
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8
-------------------------------------------------------
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
know that the requirements set forth in paragraphs 3, 4 and 10 thereof are not
satisfied or, after conducting a reasonable investigation of the financial
condition of the transferee, that the information contained in paragraphs 3, 4
and 10 thereof is not true.
Very truly yours,
[Transferor]
EXHIBIT E
FORM OF REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC8
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp,
Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8, REQUEST FOR RELEASE
---------------------------------------------------------
Dear _______________________,
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing Agreement,
dated as of March 31, 2004 (the "Pooling and Servicing Agreement"), by and among
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, GMAC
Commercial Mortgage Corporation, as Servicer, Midland Loan Services, Inc., as
Special Servicer, JPMorgan Chase Bank, as Paying Agent, and you, as Trustee, the
undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by or on behalf of you as Trustee with respect to
the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The [Servicer] [Special
Servicer] hereby certifies that all amounts received in
connection with the Mortgage Loan have been or will be
credited to the Certificate Account pursuant to the
Pooling and Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[SERVICER][SPECIAL SERVICER]
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
JPMorgan Chase Bank
as Certificate Registrar
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Global Debt
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance Securitization Group
Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8
------------------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC8, Class
__ (the "Certificate") issued pursuant to that certain Pooling and Servicing
Agreement, dated as of March 31, 2004 (the "Pooling and Servicing Agreement"),
by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as
depositor (the "Depositor"), GMAC Commercial Mortgage Corporation, as servicer
(in such capacity, the "Servicer"), Midland Loan Services, Inc., as special
servicer (in such capacity, the "Special Servicer"), Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee") and JPMorgan Chase Bank, as paying agent (the "Paying
Agent"). Capitalized terms used and not otherwise defined herein have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the undersigned hereby represents and
warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA) for
which no election has been made under Section 410(d) of the Code, subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such a Plan or Plans and the application of Department of Labor
Regulation ss. 2510.3-101), other than an insurance company using the assets of
its "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption ("PTCE") 95-60) under circumstances
whereby the purchase and holding of Offered Private Certificates by such
insurance company would be exempt from the prohibited transaction provisions of
ERISA and the Code under Sections I and III of PTCE 95-60.
2. The Purchaser understands that if the Purchaser is a Person referred to
in 1(a) or (b) above, such Purchaser is required to provide to the Certificate
Registrar an opinion of counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such purchaser or transferee will not 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 Paying Agent, the Certificate Registrar, the Servicer, the Special Servicer,
the Dealers or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any such
Similar Law) in addition to those set forth in the Pooling and Servicing
Agreement, which Opinion of Counsel shall not be at the expense of the
Depositor, the Servicer, the Special Servicer, the Trustee, the Paying Agent,
the Initial Purchasers, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 20__.
Very truly yours,
_________________________________________
[The Purchaser]
By:___________________________________
Name:
Title:
EXHIBIT G
FORM OF REPORT TO CERTIFICATEHOLDERS
[See Annex E to Prospectus Supplement]
EXHIBIT H
FORM OF OMNIBUS ASSIGNMENT
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT ASSIGNOR]
(the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto "Xxxxx Fargo Bank, N.A., as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC8" (the "Assignee"), having
an office at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 Attention: X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC8, its successors and assigns, all
right, title and interest of the Assignor in and to:
That certain mortgage and security agreement, deed of trust and security
agreement, deed to secure debt and security agreement, or similar security
instrument (the "Security Instrument"), and that certain Promissory Note (the
"Note"), for each of the Mortgage Loans shown on the Mortgage Loan Schedule
attached hereto as Exhibit A, and that certain assignment of leases and rents
given in connection therewith and all of the Assignor's right, title and
interest in any claims, collateral, insurance policies, certificates of deposit,
letters of credit, escrow accounts, performance bonds, demands, causes of action
and any other collateral arising out of and/or executed and/or delivered in or
to or with respect to the Security Instrument and the Note, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Security Instrument and the Note.
IN WITNESS WHEREOF, the Assignor has executed this instrument under
seal to be effective as of the [__] day of [ ], 2004.
[NAME OF CURRENT ASSIGNOR]
By:____________________________________
Name:
Title:
EXHIBIT I-1
FORM OF REGULATION S TRANSFER CERTIFICATE
DURING RESTRICTED PERIOD
JPMorgan Chase Bank
as Certificate Registrar
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Institutional Trust Services - JPMC 2004-CIBC8
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8 Class ___
------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, GMAC Commercial Mortgage Corporation, as
Servicer, Midland Loan Services, Inc., as Special Servicer, JPMorgan Chase Bank,
as Paying Agent and Xxxxx Fargo Bank, N.A., as Trustee, on behalf of the holders
of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC8, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") to
_________________ (the "Transferee") of $__________________ [Certificate
Balance] [Notional Amount]of Certificates, in fully registered form (each, an
"Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance] [Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT I-2
FORM OF REGULATION S TRANSFER CERTIFICATE
AFTER RESTRICTED PERIOD
JPMorgan Chase Bank
as Certificate Registrar
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Institutional Trust Services - JPMC 2004-CIBC8
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8 Class __
------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, GMAC Commercial Mortgage Corporation, as
Servicer, Midland Loan Services, Inc., as Special Servicer, JPMorgan Chase Bank,
as Paying Agent and Xxxxx Fargo Bank, N.A., as Trustee, on behalf of the holders
of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC8, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") to
_________________ (the "Transferee") of $__________________ [Certificate
Balance][Notional Amount] of Certificates, in fully registered form (each, an
"Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance][Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------------------
* Insert one of these two provisions, which come from the definition of "off-
shore transaction" in Regulation S.
EXHIBIT J
FORM OF PURCHASE OPTION NOTICE
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC8
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC8
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8
-------------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of March 31, 2004,
by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as
depositor (the "Depositor"), GMAC Commercial Mortgage Corporation, as servicer
(the "Servicer"), Midland Loan Services, Inc., as special servicer (the "Special
Servicer"), JPMorgan Chase Bank, as paying agent (the "Paying Agent") and Xxxxx
Fargo Bank, N.A., as trustee (the "Trustee"). Capitalized terms used herein and
not otherwise defined shall have the meaning set forth in the Pooling and
Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Controlling Class Certificateholder] [acquired its Purchase
Option from the Controlling Class Certificateholder on ___________] [is the
Special Servicer] [acquired its Purchase Option from the Special Servicer].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(a)(ii) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the Servicer's notice confirming
that the exercise of its Purchase Option is effective, [the undersigned Option
Holder] [______________, an Affiliate of the undersigned Option Holder] will
deliver the Option Price to or at the direction of the Servicer in exchange for
the release of the Mortgage Loan, the related Mortgaged Property and delivery of
the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the Servicer with such instruments of transfer or assignment, in each
case without recourse, as shall be reasonably necessary to vest in it or its
designee the ownership of Mortgage Loan [__], together with such other documents
or instruments as the Servicer shall reasonably require to consummate the
purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the Servicer' notice confirming that the exercise of its
Purchase Option is effective, the undersigned Option Holder, or its designee,
shall be obligated to close its purchase of Mortgage Loan ___ in accordance with
the terms and conditions of this letter and of the Pooling and Servicing
Agreement.
Very truly yours,
[Option Holder]
By:____________________________________
Name:
Title:
[By signing this letter in the space provided below, the
[Controlling Class Certificateholder] [Special Servicer] hereby acknowledges
and affirms that it transferred its Purchase Option to the Option Holder
identified above on [_________].
[_______________________]
By:______________________
Name:
Title:]
EXHIBIT K
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
JPMorgan Chase Bank
as Certificate Registrar
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Institutional Trust Services - JPMC 2004-CIBC8
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8 Class
------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of March 31, 2004 (the "Pooling and Servicing Agreement"), by and among
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, GMAC
Commercial Mortgage Corporation, as Servicer, Midland Loan Services, Inc., as
Special Servicer, JPMorgan Chase Bank, as Paying Agent and Xxxxx Fargo Bank,
N.A., as Trustee, on behalf of the holders of X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $_______ aggregate [Certificate
Balance][Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Book-Entry Certificate (CUSIP No. _________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest for an interest
in the Regulation S Book-Entry Certificate (CUSIP No. __________) to be held
with [Euroclear] [CEDEL]* (Common Code No.____________) through the Depositary.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States],*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].**
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------------------
* Insert one of these two provisions, which come from the definition of "off-
shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT L
[RESERVED]
EXHIBIT M
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
JPMorgan Chase Bank
as Certificate Registrar
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Institutional Trust Services - JPMC 2004-CIBC8
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8, Class
------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of March 31, 2004 (the "Pooling and Servicing Agreement"), by and among
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, GMAC
Commercial Mortgage Corporation, as Servicer, Midland Loan Services, Inc., as
Special Servicer, JPMorgan Chase Bank, as Paying Agent and Xxxxx Fargo Bank,
N.A., as Trustee, on behalf of the holders of X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $________ aggregate [Certificate Balance]
[Notional Amount] of Certificates (the "Certificates") which are held in the
form of the Rule 144A Book-Entry Certificate (CUSIP No. ________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Book-Entry Certificate (Common
Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------------------
*Insert one of these two provisions, which come from the definition of "off-
shore transaction" in Regulation S.
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR
REGULATION S BOOK-ENTRY CERTIFICATE
TO RULE 144A GLOBAL BOOK-ENTRY CERTIFICATE
DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
JPMorgan Chase Bank
as Certificate Registrar
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Institutional Trust Services - JPMC 2004-CIBC8
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8, Class
------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of March 31, 2004 (the "Pooling and Servicing Agreement"), by and among
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, GMAC
Commercial Mortgage Corporation, as Servicer, Midland Loan Services, Inc., as
Special Servicer, JPMorgan Chase Bank, as Paying Agent and Xxxxx Fargo Bank,
N.A., as Trustee, on behalf of the holders of X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $________ aggregate [Certificate Balance]
[Notional Amount] of Certificates (the "Certificates") which are held in the
form of the Regulation S Book-Entry Certificate (CUSIP No. _______) with
[Euroclear] [Clearstream]* (Common Code No.__________) through the Depository in
the name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation 144A Book-Entry Certificate (CUSIP No.____________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer, the Special Servicer and Initial Purchasers of the offering of the
Certificates.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------------------
* Select appropriate depository.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING THE RESTRICTED PERIOD
JPMorgan Chase Bank
as Certificate Registrar
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Institutional Trust Services - JPMC 2004-CIBC8
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8, Class
------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated as of March 31, 2004 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, GMAC Commercial Mortgage Corporation, as
Servicer, Midland Loan Services, Inc., as Special Servicer, JPMorgan Chase Bank,
as Paying Agent and Xxxxx Fargo Bank, N.A., as Trustee, on behalf of the holders
of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC8 in connection with the transfer by
_______________ of a beneficial interest of $___________ [Certificate Balance]
[Notional Amount] in a Book-Entry Certificate during the Restricted Period to
the undersigned (the "Transferee"). The Transferee desires to beneficially own
such transferred interest in the form of the Regulation S Book-Entry
Certificate. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the Paying Agent, the Servicer and the Special Servicer.
[Insert Name of Transferee]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT P
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM 10-K
X.X.Xxxxxx Xxxxx Commercial Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates
Series 2004-CIBC8 (the "Trust")
I, [________________], the President and Chief Executive Officer of X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., the depositor into the
above-referenced Trust, certify that:
1. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by this annual report, of the
Trust;
2. Based on my knowledge, the information in these reports, taken
as a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing
information required to be provided to the paying agent by the servicer and the
special servicer under the pooling and servicing agreement for inclusion in
these reports is included in these reports;
4. Based on my knowledge and upon the annual compliance statement
included in this annual report and required to be delivered to the paying agent
in accordance with the terms of the pooling and servicing agreement, and except
as disclosed in this annual report, the servicer and the special servicer have
fulfilled their obligations under the pooling and servicing agreement; and
5. This annual report discloses all significant deficiencies
relating to the servicer's or special servicer's compliance with the minimum
servicing standards based upon the report provided by an independent public
accountant, after conducting a review in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar procedure, as set forth in
the pooling and servicing agreement, that is included in this annual report.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: GMAC
Commercial Mortgage Corporation and Midland Loan Services, Inc.
Date:__________________________________
_______________________________________
President and Chief Executive Officer
X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp.
EXHIBIT Q-1
FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY THE PAYING AGENT
CERTIFICATION
-------------
X.X.Xxxxxx Chase Commercial Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates
Series 2004-CIBC8 (the "Trust")
I, [identify the certifying individual], a [title] of JPMorgan Chase
Bank, certify to X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp. and its
officers, directors and affiliates, 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 20__, and all reports on Form 8-K containing distribution or servicing
reports filed in respect of periods included in the year covered by that annual
report, of the Trust;
2. Based on my knowledge, the distribution information in these
reports, taken as a whole, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading
as of the last day of the period covered by that annual report; and
3. Based on my knowledge, the distribution or servicing
information provided to the paying agent by the servicer under the pooling and
servicing agreement, for inclusion in these reports is included in these
reports.
Date:__________________________________
_______________________________________
[Title]
JPMorgan Chase Bank
EXHIBIT Q-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY THE SERVICER
CERTIFICATION
-------------
I, [identify the certifying individual], a [_______________ ] of
GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation (the "Servicer")
as Servicer under that certain pooling and servicing agreement dated as of March
31, 2004 (the "Pooling and Servicing Agreement"), among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as depositor (the "Depositor"), GMAC
Commercial Mortgage Corporation, Xxxxx Fargo Bank, N.A., as trustee, and
JPMorgan Chase Bank, as paying agent (the "Paying Agent"), on behalf of the
Servicer, certify to the Depositor, and its officers, directors and affiliates,
and with the knowledge and intent that they will rely upon this certification,
that:
1. Based on our knowledge, with respect to the period ending December 31,
20[__] (the "Relevant Period"), all required reportable information (the
"Servicing Reports") was materially complete and reviewed by the Servicer
prior to its submission for inclusion in the monthly reports issued by the
Paying Agent under the Pooling and Servicing Agreement and all required
reports required to be submitted by the Servicer to the Paying Agent
pursuant to the Pooling and Servicing Agreement (the "Servicer Reports")
have been submitted by the Servicer to the Paying Agent;
2. Based on our knowledge, the information contained in the Servicer Reports
taken as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading as of the period ending December 31, 20[__];
3. Based on our knowledge and the annual compliance review required under
Section 3.13 of the Pooling and Servicing Agreement, during the Relevant
Period the Servicer has fulfilled its obligations under the Pooling and
Servicing Agreement in all material respects, except as disclosed in the
annual officer's certificate required under such Section 3.13; and
4. The Servicer has disclosed to its certified public accountants all
significant deficiencies relating to the Servicer's compliance with the
minimum servicing standards and such deficiencies, if any, have been
included in the independent public accountants' report (the "Report"). The
Report was created in accordance with a review covering the Relevant
Period in compliance with the minimum servicing standards set forth in the
Mortgage Bankers Association's "Uniform Single Attestation Program" or
similar standard as set forth in the Pooling and Servicing Agreement.
Date: _________________________
GMAC COMMERCIAL MORTGAGE CORPORATION
By:____________________________
[Name]
[Title]
EXHIBIT Q-3
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY THE SPECIAL SERVICER
CERTIFICATION
-------------
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp, Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC8 (the "Trust"), issued
pursuant to that certain Pooling and Servicing Agreement, dated as of
March 31, 2004 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp, as depositor, GMAC
Commercial Mortgage Corporation, as servicer (the "Servicer"), Midland
Loan Services, Inc., as special servicer (the "Special Servicer"), Xxxxx
Fargo Bank, N.A., as trustee (the "Trustee") and JPMorgan Chase Bank, as
paying agent (the "Paying Agent")
I, ____________, a _____________ of Midland Loan Services, Inc., on
behalf of Midland Loan Services, Inc., certify to X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., [Servicer] and their officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. Based on my knowledge, all reports required to be submitted by
the Special Servicer to the Servicer under the Pooling and Servicing Agreement
(the "Servicing Reports") for inclusion in the annual report on Form 10-K for
the fiscal year 20__ of the Trust and all reports on Form 8-K containing
distribution or servicing reports filed in respect of periods included in the
year covered by such annual report have been submitted to the Servicer;
2. Based on my knowledge, the information contained in the
Servicing Reports, taken as a whole, does not contain any untrue statement of a
material facts 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 December 31, 20__;
3. I am responsible for reviewing the activities performed by the
Special Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the annual compliance review required under Section 3.13 of the
Pooling and Servicing Agreement with respect to the Special Servicer, and except
as disclosed in the annual officer's certificate required under Section 3.13 of
the Pooling and Servicing Agreement, the Special Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement; and
4. The report of the Special Servicer's certified public
accountants required under Section 3.14 of the Pooling and Servicing Agreement
discloses all significant deficiencies relating to the compliance of 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.
Date: _________________________
MIDLAND LOAN SERVICES, INC.
By:____________________________
[Name]
[Title]
EXHIBIT R
DIRECTION LETTER
March [__], 2004
VIA FACSIMILE
Midland Loan Services, Inc.
10851 Xxxxxx, Building 82, 0xx Xxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: [__________________]
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC8 and the Forum
Shops Mortgage Loan
Dear [_____________]:
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC8 (the "Trust Fund") is the
Note A-3 Holder, as such term is defined under the Forum Shops Intercreditor
Agreement dated as of December 5, 2003, by and among JPMorgan Chase Bank, as
Note A-1 Holder, JPMorgan Chase Bank, as Note A-2 Holder, JPMorgan Chase Bank,
as Note A-3 Holder and JPMorgan Chase Bank, as Note B Holder. Note A-3 is being
serviced pursuant to the terms of a Pooling and Servicing Agreement, dated as of
December 8, 2003, by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as depositor, Midland Loan Services, Inc., as servicer, Midland Loan
Services, Inc., as special servicer, LaSalle Bank National Association, as
trustee, and JPMorgan Chase Bank, as paying agent, as from time to time amended,
supplemented or modified (the "Forum Shops Pooling Agreement"). Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of the Trust Fund hereby
directs Midland Loan Services, Inc., as servicer under the Forum Shops Pooling
Agreement, as follows:
Midland Loan Services, Inc. shall remit the amount payable in accordance
with the Forum Shops Intercreditor Agreement and the Forum Shops Pooling
Agreement due to the Note A-3 Holder on such days as specified in Section
3.04(b) of the Forum Shops Pooling Agreement to GMAC Commercial Mortgage
Corporation, as Servicer of the Trust Fund (the "Servicer"), to the account set
forth on Schedule I hereto in accordance with the terms of the Forum Shops
Pooling Agreement;
Thank you for your attention to this matter.
XXXXX FARGO BANK, N.A., as Trustee for the Holders of the X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC8
Date: _________________________
XXXXX FARGO BANK, N.A.
By: ___________________________
[Name]
[Title]
EXHIBIT S
FORM OF THE EXCEPTION REPORT OF THE TRUSTEE
March [__], 2004
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
CIBC World Markets Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Midland Loan Services, Inc.
00000 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Xxxxx'x Investors Services, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx
Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC8
-----------------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.02(a) of the Pooling and Servicing Agreement dated as of
March 31, 2004 relating to the above-referenced Certificates (the "Agreement"),
Xxxxx Fargo Bank, N.A., as Trustee (the "Trustee"), hereby certifies (subject to
Section 2.01 of the Agreement) as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Loan paid in full or any Loan specifically
identified in the exception report attached hereto as not being covered by this
certification) that:
(i) all documents specified in clause (i) of the definition of "Mortgage
File", as applicable, are in its possession.
Pursuant to Section 2.02(e) of the Agreement, the Trustee may conclusively
assume the due execution and genuineness of any such documents and the
genuineness of any signatures thereon. The scope of the review conducted in
connection with this certification is limited solely to confirming, after
receipt of the documents listed in clause (i) of the definition of "Mortgage
File", that such documents appear regular on their face, have been executed,
received and recorded, if applicable, and relate to the Mortgage Loans
identified in the Mortgage Loan Schedule. Pursuant to Section 2.02(e) of the
Agreement, the Trustee does not make any representation as to the validity,
legality, sufficiency, enforceability or genuineness of any such documents
contained in each Mortgage File or any of the Mortgage Loans identified in the
Mortgage Loan Schedule or the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
XXXXX FARGO BANK, N.A.
as Trustee
By:____________________________________
Name:__________________________________
Title: Assistant Vice President
Attachments
-----------
Mortgage Loan Schedule
Trustee Exception Report
EXHIBIT T
FORM OF FINAL CERTIFICATION OF THE TRUSTEE
[___________], 2004
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
CIBC World Markets Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Midland Loan Services, Inc.
00000 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Xxxxx'x Investors Services, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx
Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC8
-----------------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement dated as of
March 31, 2004, relating to the above-referenced Certificates (the "Agreement"),
Xxxxx Fargo Bank, N.A., as Trustee (the "Trustee"), hereby certifies (subject to
Section 2.01 of the Agreement) as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Loan paid in full or any Loan specifically
identified in the exception report attached hereto as not being covered by this
certification) that:
(i) all documents specified in clauses (i) through (v), (ix)
through (xii), and (xvi) (or, with respect to clause (xvi), a
copy of such letter of credit and an Officer's Certificate as
contemplated by the penultimate sentence of Section 2.01(b) of
the Agreement), if any, of the definition of "Mortgage File", as
applicable, and all documents specified in clauses (vi), (viii),
(xiii) through (xv) and (xvii) through (xx) to the extent the
Mortgage Loan Checklist indicates that such items are part of
the Mortgage File are in its possession;
(ii) the foregoing documents delivered or caused to be delivered
by the Mortgage Loan Sellers pursuant to Section 2.01 of the
Agreement have been reviewed by the Trustee and appear regular
on their face, appear to be executed, and relate to such
Mortgage Loan; and
(iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan
Schedule with respect to the items specified in clauses (iv),
(vi) and (viii)(c) in the definition of "Mortgage Loan Schedule"
is correct, subject to any exceptions identified in the attached
Trustee Exception Report.
Pursuant to Section 2.02(e) of the Agreement, the Trustee may conclusively
assume the due execution and genuineness of any such documents and the
genuineness of any signatures thereon. The scope of the review called for is
limited solely to confirming, after receipt of the documents listed in Section
2.01 of the Agreement, that such documents appear regular on their face, have
been executed, received and recorded, if applicable, and relate to the Mortgage
Loans identified in the Mortgage Loan Schedule. Pursuant to Section 2.02(e) of
the Agreement, the Trustee does not make any representation as to (i) the
validity, legality, sufficiency, enforceability or genuineness of any such
documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule or the collectibility, insurability,
effectiveness or suitability of any such Mortgage Loan, (ii) whether any
document required to be reviewed by it is in the related Mortgage File, unless
such document is identified in the checklist relating to such Mortgage File
delivered pursuant to Section 2.02(e) of the Agreement, (iii) the documents
specified in clause (ix) of the definition of Mortgage File, whether insurance
is effective as of the date of recordation, whether all endorsements or riders
issued are included in the file or if the policy has not been issued whether any
acceptable replacement document has been dated the date of the related Mortgage
Loan funding, or (iv) whether more than one county or state financing statement
is required to be filed for any given Mortgage Loan.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
XXXXX FARGO BANK, N.A.
as Trustee
By:____________________________________
Name:__________________________________
Title: Assistant Vice President
Attachments
-----------
Mortgage Loan Schedule
Trustee Exception Report
EXHIBIT U
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: GMAC Commercial Mortgage Corporation, in its capacity as
Servicer (the "Servicer") under the Pooling and Servicing
Agreement dated as of March 31, 2004 (the "Pooling and
Servicing Agreement"), among the Servicer, Xxxxx Fargo Bank,
N.A., as Trustee, and others.
Date: _________, 20___
Re: X.X. Xxxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8
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 Properties identified on the Mortgage Loan
Schedule by the following names:____________________
____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Servicer under the Pooling and Servicing Agreement, we hereby:
(a) 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 entire principal balance of the
Mortgage Loan; or
____ a partial defeasance of a portion of the principal balance of
the Mortgage Loan that represents and, an allocated loan amount of
$____________ or _______% of the entire principal balance of the
Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Servicer has determined, consistent with the Servicing
Standard, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(i) 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.
(ii) The defeasance was consummated on __________, 20__.
(iii) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are
listed as "Qualified Investments for `AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii) are rated
`AAA' by S&P, (iv) if they include a principal obligation, the principal
due at maturity cannot vary or change, and (v) are not subject to
prepayment, call or early redemption.
(iv) The Servicer received an opinion of counsel (from counsel
approved by Servicer in accordance with the Servicing Standard) that the
defeasance will not result in an Adverse REMIC Event.
(v) The Servicer determined that the defeasance collateral will be
owned by an entity (the "Defeasance Obligor") that is a Single-Purpose
Entity (as defined in Standard & Poor's Structured Finance Ratings Real
Estate Finance Criteria, as amended to the date of the defeasance (the
"S&P Criteria")) as of the date of the defeasance, and after the
defeasance owns no assets other than the defeasance collateral and real
property securing Mortgage Loans included in the pool.
(vi) The Servicer received written confirmation of the crediting 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 a securities intermediary and has
been pledged to the Trustee.
(vii) The agreements executed in connection with the defeasance (i)
grant control of the pledged securities account to Trustee, (ii) require
the securities intermediary to make the scheduled payments on the Mortgage
Loan from the proceeds of the defeasance collateral directly to the
Servicer's collection account in the amounts and on the dates specified in
the Mortgage Loan documents or, in a partial defeasance, the portion of
such scheduled payments attributed to the allocated loan amount for the
real property defeased, increased by any defeasance premium specified in
the Mortgage Loan documents (the "Scheduled Payments"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in Permitted
Investments (as defined in the S&P Criteria), (iv) permit release of
surplus defeasance collateral and earnings on reinvestment from the
pledged securities account only after the Mortgage Loan has been paid in
full, if any such release is permitted, (v) prohibit transfers by the
Defeasance Obligor of the defeasance collateral and subordinate liens
against the defeasance collateral, and (vi) 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.
(viii) The Servicer received written confirmation from a firm of
independent certified public accountants, who were approved by Servicer in
accordance with the Servicing Standard stating that (i) revenues from the
defeasance collateral (without taking into account any earnings on
reinvestment of such revenues) will be sufficient to timely pay each of
the Scheduled Payments after the defeasance including the payment in full
of the Mortgage Loan (or the allocated portion thereof in connection with
a partial defeasance) on its Maturity Date (or, in the case of an ARD
Loan, on its Anticipated Repayment Date), (ii) the revenues received in
any month from the defeasance collateral will be applied to make Scheduled
Payments within four (4) months after the date of receipt, and (iii)
interest income from the defeasance collateral to the Defeasance Obligor
in any calendar or fiscal year will not exceed such Defeasance Obligor's
interest expense for the Mortgage Loan (or the allocated portion thereof
in a partial defeasance) for such year.
(ix) The Mortgage Loan is not among the ten (10) largest loans in
the pool. The entire principal balance of the Mortgage Loan as of the date
of defeasance was less than both $[______] and five percent of pool
balance, which is less than [__]% of the aggregate Certificate Balance of
the Certificates as of the date of the most recent Trustee's Distribution
Date Statement received by us (the "Current Report").
(x) The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully
and partially defeased Mortgage Loans to $__________________, which is
_____% of the aggregate Certificate Balance of the Certificates as of the
date of the Current Report.
(c) 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.
(d) Certify that the individual under whose hand the Servicer has
caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
MIDLAND LOAN SERVICES, INC.
By:____________________________________
Name:
Title:
EXHIBIT V-1
FORM OF
INFORMATION REQUEST BY CERTIFICATEHOLDER OR
CERTIFICATE OWNER
[Date]
JPMorgan Chase Bank
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Institutional Trust Services - XX Xxxxxx 2004-CIBC8
Re: XX Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC8
----------------------------------------------------------------
In accordance with the Pooling and Servicing Agreement, dated as of
March 31, 2004 (the "Pooling and Servicing Agreement"), by and among XX Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., as depositor, GMAC Commercial
Mortgage Corporation, as servicer, Midland Loan Services, Inc., as special
servicer, Xxxxx Fargo Bank, N.A., as trustee and JPMorgan Chase Bank, as paying
agent (the "Paying Agent") with respect to the XX Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8 (the "Certificates"), the undersigned hereby certifies and agrees as
follows:
1. The undersigned is a [holder] [beneficial holder] of
$___________ aggregate [Certificate Principal Balance/Certificate Notional
Amount] of the Class ____ Certificates.
2. The undersigned is requesting access to the following
information (the "Information"):
___ The information available pursuant to Section 3.15 of the
Pooling and Servicing Agreement.
___ The information on the Paying Agent's Internet Website
pursuant to Section 4.02 of the Pooling and Servicing
Agreement.
3. In consideration of the Paying Agent's disclosure to the
undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in evaluating
the Information), and such Information will not, without the prior written
consent of the Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part; provided that
the undersigned may provide all or any part of the Information to any other
person or entity that holds or is contemplating the purchase of any Certificate
or interest therein, but only if such person or entity confirms in writing such
ownership interest or prospective ownership interest and agrees to keep it
confidential; and provided that the undersigned may provide all or any part of
the Information to its auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities Exchange Act
of 1934, as amended, or would require registration of any Non-Registered
Certificate (as defined in the Pooling and Servicing Agreement) pursuant to
Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
_________________________________________
[CERTIFICATEHOLDER] [BENEFICIAL HOLDER OF
A CERTIFICATE]
By:____________________________________
Name:
Title:
Telephone No.:
EXHIBIT V-2
FORM OF
INFORMATION REQUEST BY PROSPECTIVE PURCHASER
[Date]
JPMorgan Chase Bank
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Institutional Trust Services - XX Xxxxxx 2004-CIBC8
Re: XX Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC8
----------------------------------------------------------------
In accordance with the Pooling and Servicing Agreement, dated as of
March 31, 2004 (the "Pooling and Servicing Agreement"), by and among XX Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., as depositor, GMAC Commercial
Mortgage Corporation, as servicer, Midland Loan Services, Inc., as special
servicer, Xxxxx Fargo Bank, N.A., as trustee and JPMorgan Chase Bank, as paying
agent (the "Paying Agent") with respect to the XX Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC8 (the "Certificates"), the undersigned hereby certifies and agrees as
follows:
1. The undersigned is contemplating an investment in the Class
____ Certificates.
2. The undersigned is requesting access to the following information
(the "Information") for use in evaluating such possible investment:
___ The information available at the Corporate Trust Office of the
Paying Agent pursuant to Section 3.12 of the Pooling and
Servicing Agreement.
___ The information on the Paying Agent's Internet Website
pursuant to Section 4.02 of the Pooling and Servicing
Agreement.
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in making the
investment decision described in paragraphs 1 and 2), and such Information will
not, without the prior written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners employees, agents or
representatives (collectively, the "Representatives") in any manner whatsoever,
in whole or in part; provided that in the event the undersigned purchases any
Certificate or any interest in any Certificate, the undersigned may provide all
or any part of the Information to any other person or entity that holds or is
contemplating the purchase of any Certificate or interest therein, but only if
such person or entity confirms in writing such ownership interest or prospective
ownership interest and agrees to keep it confidential; and provided that the
undersigned may provide all or any part of the Information to its auditors,
legal counsel and regulators.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities Exchange Act
of 1934, as amended, or would require registration of any Non-Registered
Certificate (as defined in the Trust and Servicing Agreement) pursuant to
Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
_________________________________________
[PROSPECTIVE PURCHASER]
By:____________________________________
Name:
Title:
Telephone No.:
EXHIBIT W
INITIAL COMPANION HOLDER
CBA-Mezzanine Capital Finance, LLC shall be the initial Companion
Holder for the Parkwood Apartments Companion Loan and the Hebron Heights
Companion Loan. LaSalle Bank National Association, on behalf of the Mezz Cap
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates Series
2004-C1, shall be the Initial Companion Holder for the Xxxxxxxx Crossing
Companion Loan, the Central Park Office Companion Loan, the Grandview Xxxxxxx
Apartments Companion Loan and the Xxxxxxxx Apartments Companion Loan.
SCHEDULE 1
Mortgage Loans Containing Additional Debt
Loan No. Loan Name
-------- ---------
1 Forum Shops
10 Parkwood Apartments
26 Xxxxxxxx Crossing
32 Hebron Heights
00 Xxxxxxx Xxxx Xxxxxx
00 Xxxxxxxxx Xxxxxxx
92 Xxxxxxxx Apartments
SCHEDULE 2
Mortgage Loans that Initially Pay Interest Only
Loan No. Loan Name
-------- ---------
1 The Forum Xxxxx
0 Xxxxxx Xxxxx
0 Xxxxxxxx Xxxxxxx Portfolio III
4 Santee Trolley Square
5 Camp Creek Marketplace
8 PHH Vehicle Management Services
20 The Orchard
26 Xxxxxxxx Crossing Phase II
24 The Summit Apartments
41 Mission Foothills Professional
Building
47 Central Park Office Tower
54 Concept II Towers
00 Xxxx Xxxxxx Xxxxxxxx Xxxx
00 Xxxxx Xxxxx Center
100 0000 Xxxxxxxxx Xxxxxx
SCHEDULE 3
Class X Reference Rates
Distribution Date Reference Rate
April 2004 5.54309%
May 2004 5.36833%
June 2004 5.54272%
July 2004 5.36799%
August 2004 5.54236%
September 2004 5.54218%
October 2004 5.36748%
November 2004 5.54181%
December 2004 5.36712%
January 2005 5.36693%
February 2005 5.36676%
March 2005 5.36700%
April 2005 5.54081%
May 2005 5.36610%
June 2005 5.54026%
July 2005 5.36556%
August 2005 5.53969%
September 2005 5.53942%
October 2005 5.36475%
November 2005 5.53883%
December 2005 5.36419%
January 2006 5.36389%
February 2006 5.36372%
March 2006 5.36492%
April 2006 5.53766%
May 2006 5.36316%
June 2006 5.53733%
July 2006 5.36292%
August 2006 5.53707%
September 2006 5.53693%
October 2006 5.36255%
November 2006 5.53666%
December 2006 5.36229%
January 2007 5.36216%
February 2007 5.36203%
March 2007 5.36412%
April 2007 5.53392%
May 2007 5.35981%
June 2007 5.53375%
July 2007 5.35966%
August 2007 5.53357%
September 2007 5.53349%
October 2007 5.35942%
November 2007 5.53330%
December 2007 5.35926%
January 2008 5.53448%
February 2008 5.36025%
March 2008 5.36094%
April 2008 5.53397%
May 2008 5.35978%
June 2008 5.53363%
July 2008 5.35946%
August 2008 5.53328%
September 2008 5.53311%
October 2008 5.35898%
November 2008 5.53275%
December 2008 5.36977%
January 2009 5.37079%
February 2009 5.36885%
March 2009 5.37389%
April 2009 5.54712%
May 2009 5.37290%
June 2009 5.54687%
July 2009 5.37269%
August 2009 5.54663%
September 2009 5.54652%
October 2009 5.37238%
November 2009 5.54627%
December 2009 5.37216%
January 2010 5.37197%
February 2010 5.37179%
March 2010 5.37452%
April 2010 5.54535%
May 2010 5.37123%
June 2010 5.54491%
July 2010 5.37082%
August 2010 5.54446%
September 2010 5.54424%
October 2010 5.37019%
November 2010 5.54378%
December 2010 5.37454%
January 2011 5.48589%
February 2011 5.49021%
March 2011 5.53451%
SCHEDULE 4
----------
Forum Shops Loan Amortization Schedule
A-3 Pooled Component
----------------------------------------------------------------
Total
Date Interest ($) Principal ($) Payment ($)
----------------------------------------------------------------
12/1/2003 - - -
----------------------------------------------------------------
1/1/2004 639,745.71 - 639,745.71
----------------------------------------------------------------
2/1/2004 639,745.71 - 639,745.71
----------------------------------------------------------------
3/1/2004 598,471.79 - 598,471.79
----------------------------------------------------------------
4/1/2004 639,745.71 - 639,745.71
----------------------------------------------------------------
5/1/2004 619,108.75 - 619,108.75
----------------------------------------------------------------
6/1/2004 639,745.71 - 639,745.71
----------------------------------------------------------------
7/1/2004 619,108.75 - 619,108.75
----------------------------------------------------------------
8/1/2004 639,745.71 - 639,745.71
----------------------------------------------------------------
9/1/2004 639,745.71 - 639,745.71
----------------------------------------------------------------
10/1/2004 619,108.75 - 619,108.75
----------------------------------------------------------------
11/1/2004 639,745.71 - 639,745.71
----------------------------------------------------------------
12/1/2004 619,108.75 - 619,108.75
----------------------------------------------------------------
1/1/2005 639,745.71 - 639,745.71
----------------------------------------------------------------
2/1/2005 639,745.71 - 639,745.71
----------------------------------------------------------------
3/1/2005 577,834.83 - 577,834.83
----------------------------------------------------------------
4/1/2005 639,745.71 - 639,745.71
----------------------------------------------------------------
5/1/2005 619,108.75 - 619,108.75
----------------------------------------------------------------
6/1/2005 639,745.71 - 639,745.71
----------------------------------------------------------------
7/1/2005 619,108.75 - 619,108.75
----------------------------------------------------------------
8/1/2005 639,745.71 - 639,745.71
----------------------------------------------------------------
9/1/2005 639,745.71 - 639,745.71
----------------------------------------------------------------
10/1/2005 619,108.75 - 619,108.75
----------------------------------------------------------------
11/1/2005 639,745.71 - 639,745.71
----------------------------------------------------------------
12/1/2005 619,108.75 - 619,108.75
----------------------------------------------------------------
1/1/2006 639,745.71 173,201.82 812,947.53
----------------------------------------------------------------
2/1/2006 639,030.84 173,915.34 812,946.17
----------------------------------------------------------------
3/1/2006 576,540.79 236,286.74 812,827.53
----------------------------------------------------------------
4/1/2006 637,337.77 175,605.19 812,942.96
----------------------------------------------------------------
5/1/2006 616,077.08 196,825.52 812,902.59
----------------------------------------------------------------
6/1/2006 635,800.60 177,139.44 812,940.04
----------------------------------------------------------------
7/1/2006 614,583.37 198,316.39 812,899.76
----------------------------------------------------------------
8/1/2006 634,250.95 178,686.15 812,937.10
----------------------------------------------------------------
9/1/2006 633,513.44 179,422.26 812,935.70
----------------------------------------------------------------
10/1/2006 612,360.87 200,534.67 812,895.54
----------------------------------------------------------------
11/1/2006 631,945.21 180,987.51 812,932.72
----------------------------------------------------------------
12/1/2006 610,836.97 202,055.67 812,892.65
----------------------------------------------------------------
1/1/2007 630,364.24 182,565.48 812,929.72
----------------------------------------------------------------
2/1/2007 629,610.72 183,317.57 812,928.29
----------------------------------------------------------------
3/1/2007 567,997.25 244,814.06 812,811.31
----------------------------------------------------------------
4/1/2007 627,843.66 185,081.28 812,924.93
----------------------------------------------------------------
5/1/2007 606,851.38 206,033.70 812,885.08
----------------------------------------------------------------
6/1/2007 626,229.37 186,692.50 812,921.87
----------------------------------------------------------------
7/1/2007 605,282.73 207,599.37 812,882.10
----------------------------------------------------------------
8/1/2007 624,601.98 188,316.80 812,918.78
----------------------------------------------------------------
9/1/2007 623,824.72 189,092.59 812,917.30
----------------------------------------------------------------
10/1/2007 602,946.06 209,931.61 812,877.66
----------------------------------------------------------------
11/1/2007 622,177.79 190,736.39 812,914.18
----------------------------------------------------------------
12/1/2007 601,345.69 211,528.94 812,874.63
----------------------------------------------------------------
1/1/2008 620,517.48 192,393.54 812,911.03
----------------------------------------------------------------
2/1/2008 619,723.40 193,186.12 812,909.52
----------------------------------------------------------------
3/1/2008 578,995.33 233,836.86 812,832.19
----------------------------------------------------------------
4/1/2008 617,960.91 194,945.26 812,906.17
----------------------------------------------------------------
5/1/2008 597,248.03 215,618.82 812,866.85
----------------------------------------------------------------
6/1/2008 616,266.35 196,636.60 812,902.95
----------------------------------------------------------------
7/1/2008 595,601.37 217,262.35 812,863.72
----------------------------------------------------------------
8/1/2008 614,558.03 198,341.68 812,899.71
----------------------------------------------------------------
9/1/2008 613,739.39 199,158.76 812,898.16
----------------------------------------------------------------
10/1/2008 593,145.86 219,713.20 812,859.06
----------------------------------------------------------------
11/1/2008 612,010.54 200,884.33 812,894.87
----------------------------------------------------------------
12/1/2008 591,465.89 221,389.98 812,855.87
----------------------------------------------------------------
1/1/2009 610,267.65 202,623.91 812,891.57
----------------------------------------------------------------
2/1/2009 609,431.34 203,458.63 812,889.98
----------------------------------------------------------------
3/1/2009 549,695.63 263,080.94 812,776.57
----------------------------------------------------------------
4/1/2009 607,505.75 205,380.57 812,886.32
----------------------------------------------------------------
5/1/2009 587,088.45 225,759.11 812,847.56
----------------------------------------------------------------
6/1/2009 605,726.27 207,156.67 812,882.94
----------------------------------------------------------------
7/1/2009 585,359.28 227,485.00 812,844.28
----------------------------------------------------------------
8/1/2009 603,932.33 208,947.20 812,879.54
----------------------------------------------------------------
9/1/2009 603,069.93 209,807.97 812,877.90
----------------------------------------------------------------
10/1/2009 582,778.03 230,061.34 812,839.37
----------------------------------------------------------------
11/1/2009 601,254.41 211,620.04 812,874.45
----------------------------------------------------------------
12/1/2009 581,013.85 231,822.18 812,836.02
----------------------------------------------------------------
1/1/2010 599,424.15 213,446.82 812,870.98
----------------------------------------------------------------
2/1/2010 598,543.18 214,326.13 812,869.31
----------------------------------------------------------------
3/1/2010 539,820.64 272,937.18 812,757.82
----------------------------------------------------------------
4/1/2010 596,532.05 216,333.44 812,865.49
----------------------------------------------------------------
5/1/2010 576,424.99 236,402.32 812,827.31
----------------------------------------------------------------
6/1/2010 594,663.43 218,198.51 812,861.94
----------------------------------------------------------------
7/1/2010 574,609.20 238,214.66 812,823.87
----------------------------------------------------------------
8/1/2010 592,779.64 220,078.73 812,858.36
----------------------------------------------------------------
9/1/2010 591,871.28 220,985.35 812,856.64
----------------------------------------------------------------
10/1/2010 571,895.99 240,922.72 812,818.71
----------------------------------------------------------------
11/1/2010 589,964.81 222,888.21 812,853.02
----------------------------------------------------------------
12/1/2010 570,043.41 142,716,007.88 143,286,051.29
----------------------------------------------------------------
A-1 & A-2 Non-Pooled Component
----------------------------------------------------------------
Total
Date Interest ($) Principal ($) Payment ($)
----------------------------------------------------------------
12/1/2003 - - -
----------------------------------------------------------------
1/1/2004 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
2/1/2004 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
3/1/2004 1,196,943.58 - 1,196,943.58
----------------------------------------------------------------
4/1/2004 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
5/1/2004 1,238,217.50 - 1,238,217.50
----------------------------------------------------------------
6/1/2004 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
7/1/2004 1,238,217.50 - 1,238,217.50
----------------------------------------------------------------
8/1/2004 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
9/1/2004 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
10/1/2004 1,238,217.50 - 1,238,217.50
----------------------------------------------------------------
11/1/2004 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
12/1/2004 1,238,217.50 - 1,238,217.50
----------------------------------------------------------------
1/1/2005 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
2/1/2005 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
3/1/2005 1,155,669.67 - 1,155,669.67
----------------------------------------------------------------
4/1/2005 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
5/1/2005 1,238,217.50 - 1,238,217.50
----------------------------------------------------------------
6/1/2005 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
7/1/2005 1,238,217.50 - 1,238,217.50
----------------------------------------------------------------
8/1/2005 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
9/1/2005 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
10/1/2005 1,238,217.50 - 1,238,217.50
----------------------------------------------------------------
11/1/2005 1,279,491.42 - 1,279,491.42
----------------------------------------------------------------
12/1/2005 1,238,217.50 - 1,238,217.50
----------------------------------------------------------------
1/1/2006 1,279,491.42 346,403.65 1,625,895.06
----------------------------------------------------------------
2/1/2006 1,278,061.67 347,830.67 1,625,892.35
----------------------------------------------------------------
3/1/2006 1,153,081.58 472,573.48 1,625,655.07
----------------------------------------------------------------
4/1/2006 1,274,675.54 351,210.38 1,625,885.92
----------------------------------------------------------------
5/1/2006 1,232,154.16 393,651.03 1,625,805.19
----------------------------------------------------------------
6/1/2006 1,271,601.21 354,278.87 1,625,880.08
----------------------------------------------------------------
7/1/2006 1,229,166.74 396,632.78 1,625,799.52
----------------------------------------------------------------
8/1/2006 1,268,501.90 357,372.30 1,625,874.20
----------------------------------------------------------------
9/1/2006 1,267,026.89 358,844.51 1,625,871.40
----------------------------------------------------------------
10/1/2006 1,224,721.74 401,069.34 1,625,791.08
----------------------------------------------------------------
11/1/2006 1,263,890.43 361,975.02 1,625,865.44
----------------------------------------------------------------
12/1/2006 1,221,673.95 404,111.34 1,625,785.29
----------------------------------------------------------------
1/1/2007 1,260,728.49 365,130.95 1,625,859.44
----------------------------------------------------------------
2/1/2007 1,259,221.45 366,635.13 1,625,856.58
----------------------------------------------------------------
3/1/2007 1,135,994.50 489,628.12 1,625,622.62
----------------------------------------------------------------
4/1/2007 1,255,687.31 370,162.55 1,625,849.87
----------------------------------------------------------------
5/1/2007 1,213,702.75 412,067.41 1,625,770.16
----------------------------------------------------------------
6/1/2007 1,252,458.74 373,384.99 1,625,843.74
----------------------------------------------------------------
7/1/2007 1,210,565.46 415,198.74 1,625,764.20
----------------------------------------------------------------
8/1/2007 1,249,203.95 376,633.61 1,625,837.56
----------------------------------------------------------------
9/1/2007 1,247,649.44 378,185.17 1,625,834.61
----------------------------------------------------------------
10/1/2007 1,205,892.11 419,863.21 1,625,755.33
----------------------------------------------------------------
11/1/2007 1,244,355.58 381,472.78 1,625,828.35
----------------------------------------------------------------
12/1/2007 1,202,691.38 423,057.87 1,625,749.25
----------------------------------------------------------------
1/1/2008 1,241,034.97 384,787.08 1,625,822.05
----------------------------------------------------------------
2/1/2008 1,239,446.80 386,372.24 1,625,819.03
----------------------------------------------------------------
3/1/2008 1,157,990.66 467,673.72 1,625,664.39
----------------------------------------------------------------
4/1/2008 1,235,921.82 389,890.53 1,625,812.34
----------------------------------------------------------------
5/1/2008 1,194,496.05 431,237.64 1,625,733.69
----------------------------------------------------------------
6/1/2008 1,232,532.70 393,273.21 1,625,805.91
----------------------------------------------------------------
7/1/2008 1,191,202.75 434,524.69 1,625,727.44
----------------------------------------------------------------
8/1/2008 1,229,116.05 396,683.37 1,625,799.42
----------------------------------------------------------------
9/1/2008 1,227,478.78 398,317.53 1,625,796.31
----------------------------------------------------------------
10/1/2008 1,186,291.72 439,426.40 1,625,718.12
----------------------------------------------------------------
11/1/2008 1,224,021.09 401,768.66 1,625,789.75
----------------------------------------------------------------
12/1/2008 1,182,931.77 442,779.97 1,625,711.74
----------------------------------------------------------------
1/1/2009 1,220,535.30 405,247.83 1,625,783.13
----------------------------------------------------------------
2/1/2009 1,218,862.69 406,917.27 1,625,779.95
----------------------------------------------------------------
3/1/2009 1,099,391.26 526,161.87 1,625,553.13
----------------------------------------------------------------
4/1/2009 1,215,011.50 410,761.14 1,625,772.64
----------------------------------------------------------------
5/1/2009 1,174,176.90 451,518.21 1,625,695.12
----------------------------------------------------------------
6/1/2009 1,211,452.54 414,313.35 1,625,765.89
----------------------------------------------------------------
7/1/2009 1,170,718.55 454,970.00 1,625,688.55
----------------------------------------------------------------
8/1/2009 1,207,864.67 417,894.41 1,625,759.07
----------------------------------------------------------------
9/1/2009 1,206,139.85 419,615.95 1,625,755.80
----------------------------------------------------------------
10/1/2009 1,165,556.07 460,122.68 1,625,678.75
----------------------------------------------------------------
11/1/2009 1,202,508.83 423,240.08 1,625,748.91
----------------------------------------------------------------
12/1/2009 1,162,027.69 463,644.36 1,625,672.05
----------------------------------------------------------------
1/1/2010 1,198,848.31 426,893.65 1,625,741.96
----------------------------------------------------------------
2/1/2010 1,197,086.35 428,652.26 1,625,738.61
----------------------------------------------------------------
3/1/2010 1,079,641.28 545,874.35 1,625,515.63
----------------------------------------------------------------
4/1/2010 1,193,064.10 432,666.88 1,625,730.97
----------------------------------------------------------------
5/1/2010 1,152,849.98 472,804.65 1,625,654.63
----------------------------------------------------------------
6/1/2010 1,189,326.86 436,397.02 1,625,723.88
----------------------------------------------------------------
7/1/2010 1,149,218.40 476,429.33 1,625,647.73
----------------------------------------------------------------
8/1/2010 1,185,559.27 440,157.46 1,625,716.73
----------------------------------------------------------------
9/1/2010 1,183,742.57 441,970.71 1,625,713.28
----------------------------------------------------------------
10/1/2010 1,143,791.98 481,845.45 1,625,637.43
----------------------------------------------------------------
11/1/2010 1,179,929.62 445,776.42 1,625,706.04
----------------------------------------------------------------
12/1/2010 1,140,086.83 285,432,015.76 286,572,102.59
----------------------------------------------------------------
B Non-Pooled Component
----------------------------------------------------------------
Total
Date Interest ($) Principal ($) Payment ($)
----------------------------------------------------------------
12/1/2003 - - -
----------------------------------------------------------------
1/1/2004 346,518.43 - 346,518.43
----------------------------------------------------------------
2/1/2004 346,518.43 - 346,518.43
----------------------------------------------------------------
3/1/2004 324,162.40 - 324,162.40
----------------------------------------------------------------
4/1/2004 346,518.43 - 346,518.43
----------------------------------------------------------------
5/1/2004 335,340.42 - 335,340.42
----------------------------------------------------------------
6/1/2004 346,518.43 - 346,518.43
----------------------------------------------------------------
7/1/2004 335,340.42 - 335,340.42
----------------------------------------------------------------
8/1/2004 346,518.43 - 346,518.43
----------------------------------------------------------------
9/1/2004 346,518.43 - 346,518.43
----------------------------------------------------------------
10/1/2004 335,340.42 - 335,340.42
----------------------------------------------------------------
11/1/2004 346,518.43 - 346,518.43
----------------------------------------------------------------
12/1/2004 335,340.42 - 335,340.42
----------------------------------------------------------------
1/1/2005 346,518.43 - 346,518.43
----------------------------------------------------------------
2/1/2005 346,518.43 - 346,518.43
----------------------------------------------------------------
3/1/2005 312,984.39 - 312,984.39
----------------------------------------------------------------
4/1/2005 346,518.43 - 346,518.43
----------------------------------------------------------------
5/1/2005 335,340.42 - 335,340.42
----------------------------------------------------------------
6/1/2005 346,518.43 - 346,518.43
----------------------------------------------------------------
7/1/2005 335,340.42 - 335,340.42
----------------------------------------------------------------
8/1/2005 346,518.43 - 346,518.43
----------------------------------------------------------------
9/1/2005 346,518.43 - 346,518.43
----------------------------------------------------------------
10/1/2005 335,340.42 - 335,340.42
----------------------------------------------------------------
11/1/2005 346,518.43 - 346,518.43
----------------------------------------------------------------
12/1/2005 335,340.42 - 335,340.42
----------------------------------------------------------------
1/1/2006 346,518.43 94,981.64 441,500.08
----------------------------------------------------------------
2/1/2006 346,131.22 95,372.93 441,504.15
----------------------------------------------------------------
3/1/2006 312,283.47 129,576.60 441,860.07
----------------------------------------------------------------
4/1/2006 345,214.17 96,299.62 441,513.79
----------------------------------------------------------------
5/1/2006 333,698.31 107,936.57 441,634.88
----------------------------------------------------------------
6/1/2006 344,381.56 97,140.98 441,522.55
----------------------------------------------------------------
7/1/2006 332,889.24 108,754.15 441,643.39
----------------------------------------------------------------
8/1/2006 343,542.19 97,989.18 441,531.37
----------------------------------------------------------------
9/1/2006 343,142.72 98,392.85 441,535.57
----------------------------------------------------------------
10/1/2006 331,685.42 109,970.63 441,656.05
----------------------------------------------------------------
11/1/2006 342,293.29 99,251.21 441,544.50
----------------------------------------------------------------
12/1/2006 330,860.01 110,804.72 441,664.73
----------------------------------------------------------------
1/1/2007 341,436.96 100,116.55 441,553.51
----------------------------------------------------------------
2/1/2007 341,028.81 100,528.99 441,557.80
----------------------------------------------------------------
3/1/2007 307,655.86 134,252.87 441,908.73
----------------------------------------------------------------
4/1/2007 340,071.68 101,496.18 441,567.87
----------------------------------------------------------------
5/1/2007 328,701.21 112,986.22 441,687.43
----------------------------------------------------------------
6/1/2007 339,197.30 102,379.76 441,577.06
----------------------------------------------------------------
7/1/2007 327,851.55 113,844.82 441,696.37
----------------------------------------------------------------
8/1/2007 338,315.82 103,270.51 441,586.33
----------------------------------------------------------------
9/1/2007 337,894.82 103,695.93 441,590.76
----------------------------------------------------------------
10/1/2007 326,585.89 115,123.78 441,709.67
----------------------------------------------------------------
11/1/2007 337,002.76 104,597.37 441,600.14
----------------------------------------------------------------
12/1/2007 325,719.05 115,999.74 441,718.79
----------------------------------------------------------------
1/1/2008 336,103.46 105,506.14 441,609.59
----------------------------------------------------------------
2/1/2008 335,673.34 105,940.77 441,614.12
----------------------------------------------------------------
3/1/2008 313,612.97 128,233.12 441,846.09
----------------------------------------------------------------
4/1/2008 334,718.69 106,905.47 441,624.15
----------------------------------------------------------------
5/1/2008 323,499.55 118,242.58 441,742.13
----------------------------------------------------------------
6/1/2008 333,800.83 107,832.98 441,633.81
----------------------------------------------------------------
7/1/2008 322,607.64 119,143.87 441,751.51
----------------------------------------------------------------
8/1/2008 332,875.52 108,768.02 441,643.54
----------------------------------------------------------------
9/1/2008 332,432.10 109,216.10 441,648.20
----------------------------------------------------------------
10/1/2008 321,277.61 120,487.88 441,765.49
----------------------------------------------------------------
11/1/2008 331,495.67 110,162.37 441,658.05
----------------------------------------------------------------
12/1/2008 320,367.65 121,407.41 441,775.06
----------------------------------------------------------------
1/1/2009 330,551.63 111,116.34 441,667.97
----------------------------------------------------------------
2/1/2009 330,098.65 111,574.09 441,672.74
----------------------------------------------------------------
3/1/2009 297,742.78 144,270.19 442,012.97
----------------------------------------------------------------
4/1/2009 329,055.65 112,628.05 441,683.70
----------------------------------------------------------------
5/1/2009 317,996.61 123,803.38 441,799.99
----------------------------------------------------------------
6/1/2009 328,091.79 113,602.05 441,693.84
----------------------------------------------------------------
7/1/2009 317,060.01 124,749.84 441,809.84
----------------------------------------------------------------
8/1/2009 327,120.11 114,583.95 441,704.06
----------------------------------------------------------------
9/1/2009 326,652.98 115,055.99 441,708.97
----------------------------------------------------------------
10/1/2009 315,661.87 126,162.67 441,824.55
----------------------------------------------------------------
11/1/2009 325,669.61 116,049.70 441,719.31
----------------------------------------------------------------
12/1/2009 314,706.30 127,128.29 441,834.59
----------------------------------------------------------------
1/1/2010 324,678.25 117,051.48 441,729.73
----------------------------------------------------------------
2/1/2010 324,201.07 117,533.68 441,734.75
----------------------------------------------------------------
3/1/2010 292,393.99 149,675.23 442,069.22
----------------------------------------------------------------
4/1/2010 323,111.74 118,634.47 441,746.21
----------------------------------------------------------------
5/1/2010 312,220.75 129,639.98 441,860.73
----------------------------------------------------------------
6/1/2010 322,099.60 119,657.25 441,756.85
----------------------------------------------------------------
7/1/2010 311,237.22 130,633.85 441,871.07
----------------------------------------------------------------
8/1/2010 321,079.24 120,688.33 441,767.58
----------------------------------------------------------------
9/1/2010 320,587.24 121,185.52 441,772.75
----------------------------------------------------------------
10/1/2010 309,767.61 132,118.91 441,886.53
----------------------------------------------------------------
11/1/2010 319,554.59 122,229.02 441,783.61
----------------------------------------------------------------
12/1/2010 308,764.16 78,263,617.22 78,572,381.39
----------------------------------------------------------------
