EXHIBIT 4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP., DEPOSITOR
GMAC COMMERCIAL MORTGAGE CORPORATION,
Servicer
ARCAP SERVICING, INC.,
Special Servicer
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
and
ABN AMRO BANK N.V.,
Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of
June 30, 2004
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates
Series 2004-CIBC9
TABLE OF CONTENTS
Page
----
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 and Upper-Tier
Distribution Accounts, the Companion Distribution
Account, the Gain-on-Sale Reserve Account and the Excess
Interest Distribution Account................................
Section 3.05 Permitted Withdrawals from the Certificate Account, the
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 3.12A Delivery of Certain Reports to the Grace Building Loan
Group Noteholders............................................
Section 3.12B Statements to the Grace Building Loan Group Noteholders.......
Section 3.13 Annual Statement as to Compliance.............................
Section 3.14 Reports by Independent Public Accountants.....................
Section 3.15 Access to Certain Information.................................
Section 3.16 Title to REO Property; REO Account............................
Section 3.17 Management of REO Property....................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties...........
Section 3.19 Additional Obligations of Servicer and Special Servicer.......
Section 3.20 Modifications, Waivers, Amendments and Consents...............
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Recordkeeping; Asset Status Report.................
Section 3.22 Sub-Servicing Agreements......................................
Section 3.23 [RESERVED]....................................................
Section 3.24 Representations, Warranties and Covenants of the Servicer.....
Section 3.25 Representations, Warranties and Covenants of the Special
Servicer.....................................................
Section 3.26 Interest Reserve Account......................................
Section 3.27 Excess Interest Distribution Account..........................
Section 3.28 Directing Certificateholder Contact with Servicer.............
Section 3.29 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of
Directing Certificateholder..................................
Section 3.30 Intercreditor Agreements......................................
Section 3.31 Companion Paying Agent........................................
Section 3.32 Companion Register............................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s...............................................
Section 4.03 P&I Advances..................................................
Section 4.04 Allocation of Collateral Support Deficit......................
Section 4.05 Appraisal Reductions..........................................
Section 4.06 Certificate Deferred Interest.................................
Section 4.07 Grantor Trust Reporting.......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates..............................................
Section 5.02 Registration of Transfer and Exchange of Certificates.........
Section 5.03 Book-Entry Certificates.......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.............
Section 5.05 Persons Deemed Owners.........................................
Section 5.06 Certificate Ownership Certification...........................
Article VI
THE DEPOSITOR, THE SERVICER,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Servicer and the Special
Servicer.....................................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Servicer or the Special Servicer.............................
Section 6.03 Limitation on Liability of the Depositor, the Servicer,
the Special Servicer and Others..............................
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign........
Section 6.05 Rights of the Depositor in Respect of the Servicer and
the Special Servicer.........................................
Section 6.06 The Servicer and the Special Servicer as Certificate Owner....
Section 6.07 The Directing Certificateholder and the Grace Building
Directing Holder.............................................
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 and Fiscal Agent as Maker of Advances.................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
Section 8.01 Duties of Trustee.............................................
Section 8.02 Certain Matters Affecting the Trustee.........................
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans...............................
Section 8.04 Trustee or Fiscal Agent May Own Certificates..................
Section 8.05 Fees and Expenses of Trustee; Indemnification of Trustee
and Fiscal Agent.............................................
Section 8.06 Eligibility Requirements for Trustee and the Fiscal Agent.....
Section 8.07 Resignation and Removal of the Trustee........................
Section 8.08 Successor Trustee.............................................
Section 8.09 Merger or Consolidation of Trustee and Fiscal Agent...........
Section 8.10 Appointment of Co-Trustee or Separate Trustee.................
Section 8.11 Appointment of Custodians.....................................
Section 8.12 Access to Certain Information.................................
Section 8.13 The Fiscal Agent..............................................
Section 8.14 Representations and Warranties of the Trustee.................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans...............................................
Section 9.02 Additional Termination Requirements...........................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration..........................................
Section 10.02 Use of Agents.................................................
Section 10.03 Depositor, Servicer and Special Servicer to Cooperate
with Trustee.................................................
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; Third Party 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 Certificate
Exhibit A-7 [Reserved]
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 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 Controlling Class Certificateholder's Reports Checklist
Exhibit N Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate after
Restricted Period
Exhibit O Form of Transfer Certificate of Regulation S Book-Entry
Certificate to Rule 144A Global Book-Entry during Restricted
Period
Exhibit P Form of Transfer Certificate for Regulation S Book-Entry
Certificate during Restricted Period
Exhibit Q Form Certification to be Provided with Form 10-K
Exhibit R-1 Form of Certification to be Provided to Depositor by Trustee
Exhibit R-2 Form of Certification to be Provided to Depositor by
Servicer
Exhibit R-3 Form of Certification to be Provided to Depositor by
Special Servicer
Exhibit S Initial Companion Holders
Exhibit T ARCap Naming Convention
Exhibit U Form of Notice and Certification regarding Defeasance of
Mortgage Loan
Exhibit V Information Request From Certificateholder, Beneficial
Owner or Prospective Purchaser
Exhibit W Trustee Certification/Exception Report
Exhibit X Monthly Additional Report on Recoveries and Reimbursements
Exhibit Y Realized Loss Report Form
SCHEDULES
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans which Initially Pay Interest Only
Schedule 3 Servicer Fees
Schedule 4 Grace Building Mortgage Loan Amortization Schedule
Schedule 5 Grace Building Whole Loan
This Pooling and Servicing Agreement (the "Agreement") is dated and
effective as of June 30, 2004, among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, GMAC Commercial Mortgage Corporation, as
Servicer, ARCap Servicing, Inc., as Special Servicer, LaSalle Bank National
Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell 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 Trustee shall elect or shall cause an election
to be made to treat the Trust Fund (exclusive of the Excess Interest and the
Excess Interest Distribution Account) for federal income tax purposes as two
separate real estate mortgage investment conduits (the "Upper-Tier REMIC" and
"Lower-Tier REMIC" as described herein).
The parties intend that the portions of the Trust Fund representing
the Excess Interest, the Excess Interest Distribution Account and the proceeds
thereof will be treated as a grantor trust under subpart E of Part 1 of
subchapter J of the Code and that the beneficial interest therein will be
represented by the Class NR Certificates.
LOWER-TIER REMIC
The Class LA-1, Class LA-2, Class LA-3, Class LA-4, Class LA-1A,
Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ,
Class LK, 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 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 Original Lower-Tier
Designation Interest Rate Principal Amount
----------- ------------- -------------------
Class LA-1 (1) $64,985,000
Class LA-2 (1) $145,991,000
Class LA-3 (1) $103,723,000
Class LA-4 (1) $466,392,000
Class LA-1A (1) $167,933,000
Class LB (1) $27,548,000
Class LC (1) $13,774,000
Class LD (1) $20,661,000
Class LE (1) $11,019,000
Class LF (1) $15,151,000
Class LG (1) $9,642,000
Class LH (1) $17,906,000
Class LJ (1) $2,755,000
Class LK (1) $4,132,000
Class LL (1) $5,510,000
Class LM (1) $5,509,000
Class LN (1) $2,755,000
Class LP (1) $2,755,000
Class LNR (1) $13,774,388
Class LR None(2) None(3)
-----------
(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 (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 NR (other than with respect to the right to receive
Excess Interest), Class P and Class X 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:
Original
Initial Certificate
Pass-Through Balance or Ratings(1)
Rate Notional Amount (S&P/Fitch)
------------- ------------ -------------------- -----------
Class A-1(2) 3.4750% $64,895,000 AAA/AAA
Class A-2(2) 5.1080% $145,991,000 AAA/AAA
Class A-3(2) 5.1507%(3) $103,723,000 AAA/AAA
Class A-4(2) 5.3827%(3) $466,392,000 AAA/AAA
Class A-1A(2) 5.2347%(3) $167,933,000 AAA/AAA
Class B 5.4607%(3) $27,548,000 AA/AA
Class C 5.4737%(4) $13,774,000 AA-/AA-
Class D 5.4737%(4) $20,661,000 A/A
Class E 5.4737%(4) $11,019,000 A-/A-
Class F 5.4737%(4) $15,151,000 BBB+/BBB+
Class G 5.4737%(4) $9,642,000 BBB/BBB
Class H 5.4737%(4) $17,906,000 BBB-/ BBB-
Class J 5.4737%(5) $2,755,000 BB+/BB+
Class K 5.4737%(5) $4,132,000 BB/BB
Class L 5.4737%(5) $5,510,000 BB-/BB-
Class M 5.4737%(5) $5,509,000 B+/B+
Class N 5.4737%(5) $2,755,000 B/B
Class P 5.4737%(5) $2,755,000 B-/B-
Class NR 5.4737%(5) $13,774,388 NR/NR
Class R None(8) None(8) */*
Class X 0.2720%(6) $1,101,915,388(7) AAA/AAA
(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) The Pass-Through Rate for any Distribution Date for the Class A-3
Certificates will be the Weighted Average Net Mortgage Rate for the
Distribution Date minus 0.3230% per annum. The Pass-Through Rate for any
Distribution Date for the Class A-4 Certificates will be the Weighted
Average Net Mortgage Rate for the Distribution Date minus 0.0910% per
annum. The Pass-Through Rate for any Distribution Date for the Class A-1A
Certificates will be the Weighted Average Net Mortgage Rate for the
Distribution Date minus 0.2390% per annum. The Pass-Through Rate for any
Distribution Date for the Class B Certificates will be the Weighted
Average Net Mortgage Rate for the Distribution Date minus 0.0130% per
annum.
(4) The Pass-Through Rate for any Distribution Date for the Class C, Class D,
Class E, Class F, Class G and Class H Certificates will be the Weighted
Average Net Mortgage Rate.
(5) Subject to a maximum Pass Through Rate equal to the Weighted Average Net
Mortgage Rate.
(6) The Pass-Through Rates for the Class X Certificates will be calculated in
accordance with the definition of "Class X Pass-Through Rate".
(7) The Class X Certificates will not have a Certificate Balance and will not
be entitled to receive distributions of principal. Interest will accrue on
the Components of such Class at the Component Pass-Through Rates thereof
on the Notional Amounts thereof. The Notional Amount of each Component for
any Distribution Date will be equal to the Lower-Tier Principal Amount of
the respective Uncertificated Lower-Tier Interest for such Distribution
Date, which will be equal to the Certificate Balance of the Related
Certificates as of the preceding Distribution Date (after giving effect to
the distribution of principal and allocation of Collateral Support Deficit
on such Distribution Date) or, in the case of the first Distribution Date,
the Cut-off Date.
(8) The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Upper-Tier Distribution Account, after all required distributions
under this Agreement have been made to each other Class of Certificates,
will be distributed to the Holders of the Class R Certificates.
As of 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
$1,101,915,388.
Five mortgage loans (or groups of mortgage loans), the Ridgemont
Companion Loan, Pontchartrain Companion Loan, Portage Companion Loan, Gulfbrook
Companion Loan and the Grace Building Companion Notes (collectively, the
"Companion Loans") are not part of the Trust Fund, but are secured by the same
Mortgage that secures the related Mortgage Loan (each, with the exception of the
Grace Building Mortgage Loan, an "AB Mortgage Loan" and, collectively, the "AB
Mortgage Loans") that is 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 Grace Building Whole Loan consists of the Grace Building Mortgage
Loan and the Grace Building Companion Notes. The Grace Building Companion Notes
consist of the Grace Building Senior Companion Notes and the Grace Building B
Notes. The Grace Building Mortgage Loan and the Grace Building Senior Companion
Notes are pari passu with each other and the Grace Building B Notes are
subordinated to such loans. The Grace Building Mortgage Loan is part of the
Trust Fund. The Grace Building Companion Notes are not part of the Trust Fund.
The Grace Building Mortgage Loan and the Grace Building Companion Notes will be
serviced and administered in accordance with this Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer, the Trustee and the Fiscal 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.
"4th and Xxxxxxxxx Building Mortgage Loan": That certain Mortgage
Loan identified on the Mortgage Loan Schedule as loan number 3.
"AB Mortgage Loan": Each of the Mortgage Loans identified on the
Mortgage Loan Schedule as loan numbers 9, 44, 53 and 68 that are part of the
trust fund.
"Acceptable Insurance Default": With respect to any Mortgage Loan or
Loan Pair, 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 not materially
less favorable than those in place as of June 30, 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 after consultation
with the Directing Certificateholder in connection with loans other than the
Grace Building Whole Loan (or with respect to the Grace Building Whole Loan, the
Grace Building Directing Holder), that either (a) such insurance is not
available at commercially reasonable rates and that such hazards are not at the
time commonly insured against for properties similar to the related Mortgaged
Property and located in or around the region in which such related Mortgaged
Property is located, or (b) such insurance is not available at any rate;
provided, however, the Directing Certificateholder in connection with loans
other than the Grace Building Whole Loan (or with respect to the Grace Building
Whole Loan, the Grace Building Directing Holder) 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 in connection with
loans other than the Grace Building Whole Loan (or with respect to the Grace
Building Whole Loan, the Grace Building Directing Holder), the Special Servicer
will not be required to do so. The Special Servicer shall be entitled to rely at
its own expense on insurance consultants in making determinations described
above.
"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
Certificates, the Notional Amount of the Class X Certificates 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, as applicable, 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 mortgaged properties similar to the
Mortgaged Properties on June 30, 2004.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York; and (b) such other state or local tax laws whose applicability shall have
been brought to the attention of the Trustee by either (i) an opinion of counsel
delivered to it, or (ii) written notice from the appropriate taxing authority as
to the applicability of such state or local tax laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan and the Grace Building Whole Loan as to which an Appraisal
Reduction Event has occurred, will be an amount calculated by the Special
Servicer, in consultation with the Directing Certificateholder in connection
with loans other than the Grace Building Whole Loan (or with respect to the
Grace Building Whole Loan, the Grace Building Directing Holder), as of the first
Determination Date following the date on which the Special Servicer receives or
performs the related Appraisal, equal to the excess of (a) the Stated Principal
Balance of such Mortgage Loan and any related Companion Loan or the Stated
Principal Balance of the Grace Building Whole Loan, as the case may be, 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) or the Grace Building Whole 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) other than any
loan forming a part of the Grace Building Whole Loan or with respect to the
Grace Building Whole Loan, as applicable (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 or the Grace Building Whole Loan, as
applicable, 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, the Trustee or the Fiscal Agent, all unpaid
interest on such Mortgage Loan or the Grace Building Whole Loan, as applicable,
at a per annum rate equal to its Mortgage Rate (and any accrued and unpaid
interest on any related Companion Loan), (B) all unreimbursed Advances and any
Advances that were not reimbursed out of collections on such Mortgage Loan or
the Grace Building Whole Loan, as applicable, 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 or the Grace Building Whole Loan, as applicable (which
taxes, premiums, ground rents and other amounts have not been the subject of an
Advance by the Servicer, the Trustee or the Fiscal Agent, 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
clauses (i) and (vi) of the definition of Appraisal Reduction Event, within 120
days after the initial delinquency for the related Appraisal Reduction Event),
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 or the
Grace Building Whole Loan, as applicable, until such time as such appraisal or
valuation referred to above is received and the Appraisal Reduction is
calculated. Within 60 days after the Appraisal Reduction Event, the Special
Servicer shall order and receive an Appraisal (the cost of which shall be paid
as a Servicing Advance); provided, however, that with respect to an Appraisal
Reduction Event as set forth in clause (i) of the definition of Appraisal
Reduction Event, the Special Servicer shall order and receive such Appraisal
within the 120-day period set forth in such clause (i), which Appraisal shall be
delivered by the Special Servicer to the Servicer, the Directing
Certificateholder and the Trustee and, in the case of the Grace Building Whole
Loan, the Grace Building Senior Companion Noteholders.
With respect to each Mortgage Loan (other than any loan that forms a
part of the Grace Building Whole Loan) and with respect to the Grace Building
Whole Loan as to which an Appraisal Reduction has occurred (unless such Mortgage
Loan or the Grace Building Whole Loan, as applicable, has become a Corrected
Mortgage Loan (for such purposes taking into account any amendment or
modification of such Mortgage Loan or the Grace Building Whole Loan)), the
Special Servicer shall, within 30 days of each anniversary of the related
Appraisal Reduction Event, order an Appraisal (which may be an update of a prior
Appraisal), the cost of which shall be paid by the Servicer as a Servicing
Advance or to conduct an internal valuation, as applicable and, promptly
following receipt of any such Appraisal, shall deliver a copy thereof to the
Servicer, the Directing Certificateholder and the Trustee, as well as (if the
Appraisal relates to the Mortgaged Property securing the Grace Building Whole
Loan) the holders of the Grace Building Companion Notes. Based upon such
Appraisal, the Special Servicer shall redetermine (in consultation with the
Directing Certificateholder in connection with loans other than the Grace
Building Whole Loan (and, in the case of the Grace Building Whole Loan, the
Grace Building Directing Holder) which consultation shall not be binding on the
Special Servicer) and report to the Directing Certificateholder (and, in the
case of the Grace Building Loan, the Grace Building Directing Holder and the
other holders of the Grace Building Companion Notes), the Servicer and the
Trustee the amount of the Appraisal Reduction with respect to such Mortgage Loan
or the Grace Building Whole Loan, as applicable, and such redetermined Appraisal
Reduction shall replace the prior Appraisal Reduction with respect to such
Mortgage Loan or the Grace Building Whole Loan, as applicable. The Directing
Certificateholder or Grace Building Directing Holder, as applicable, shall have
ten (10) Business Days to review and approve each calculation of an Appraisal
Reduction; provided, however, that if the Directing Certificateholder or Grace
Building Directing Holder, as applicable, fails to approve or disapprove any
calculation of the Appraisal Reduction within ten (10) Business Days of receipt
of the initial Appraisal Reduction, such consent shall be deemed given.
Notwithstanding the foregoing, the Special Servicer will not be required to
obtain an Appraisal or conduct an internal valuation, as applicable, with
respect to a Mortgage Loan or the Grace Building Whole Loan, as applicable,
which is the subject of an Appraisal Reduction Event to the extent the Special
Servicer has obtained an Appraisal or conducted such a valuation (in accordance
with requirements of this Agreement), 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 or the Grace Building
Whole Loan, as applicable; provided that the Special Servicer is not aware of
any material change to the related Mortgaged Property having occurred and
affecting the validity of such appraisal or valuation, as applicable.
Any Mortgage Loan or the Grace Building Whole Loan previously
subject to an Appraisal Reduction which Mortgage Loan has become a Corrected
Mortgage Loan (for such purposes taking into account any amendment or
modification of such Mortgage Loan or the Grace Building Whole Loan, as
applicable), and with respect to which no other Appraisal Reduction Event has
occurred and is continuing, will no longer be subject to an Appraisal Reduction.
Any Appraisal Reduction for the Grace Building Whole Loan shall be allocated in
accordance with the Grace Building Co-Lender Agreement as follows: first, to the
Grace Building B Notes in an amount up to the principal balances of the Grace
Building B Notes and then, to the Grace Building Mortgage Loan and the Grace
Building Senior Companion Notes, pro rata and pari passu according to their
respective Stated Principal Balances.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan and the Grace Building Whole 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 and
the Grace Building Whole 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 or the Grace Building Whole Loan, as applicable,
(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 or the Grace Building Whole Loan, as applicable (other than an extension of
the Maturity Date), becomes effective as a result of a modification of such
Mortgage Loan, as applicable, by the Special Servicer, (iii) the date on which a
receiver has been appointed, (iv) 60 days after a Mortgagor declares bankruptcy,
(v) 60 days after the date on which an involuntary petition of bankruptcy is
filed with respect to a Mortgagor, (vi) 90 days after an uncured delinquency
occurs in respect of a Balloon Payment with respect to such Mortgage Loan or the
Grace Building Whole Loan, as applicable, unless the Mortgagor has delivered to
the Servicer on the related Maturity Date a written refinancing commitment
reasonably satisfactory to the Special Servicer which provides that such
refinancing will occur within 60 days thereafter and (vii) immediately after
such Mortgage Loan or the Grace Building Whole Loan, as applicable, 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 the occurrence of any of the
foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing the related Mortgage Loan.
"ARCap Naming Convention": As defined in Section 3.12(a).
"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
thereof occurring in connection with a modification of such Mortgage Loan in
connection with a default or bankruptcy or similar proceedings, and (b) interest
on the Stated Principal Balance of such Mortgage Loan at the applicable Mortgage
Rate (net of interest at the Servicing Fee Rate).
"Authenticating Agent": The Trustee or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Trust Fund on deposit in
the Certificate Account (exclusive of any Net Investment Earnings
contained therein and exclusive of any amount on deposit in or credited to
any portion of the Certificate Account that is held for the benefit of the
Companion Holders) and the Lower-Tier Distribution Account as of the close
of business on the first Business Day preceding 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
related Due Date for the related Mortgage Loan), Liquidation
Proceeds or Insurance and Condemnation Proceeds, in each case,
received subsequent to the related Determination Date;
(iii) all amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through (xvii),
inclusive, and clauses (xix) and (xx) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Lower-Tier Distribution Account pursuant to clauses (iv) through
(ix), inclusive, of Section 3.05(b);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) [Reserved];
(viii) all amounts deposited in the Certificate Account or the
Lower-Tier Distribution Account, as the case may be, in error; and
(ix) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual Period ending in
(1) each January or (2) any December in a year immediately preceding
a year which is not a leap year, an amount equal to one day of
interest on the Stated Principal Balance of such Mortgage Loan as of
the Due Date in the month preceding the month in which such
Distribution Date occurs at the related Mortgage Rate to the extent
such amounts are to be deposited in the Interest Reserve Account and
held for future distribution pursuant to Section 3.26;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to the Certificate
Account for such Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Servicer,
the Trustee or the Fiscal Agent, 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 3.26(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 or Companion Loan that by
its original terms or by virtue of any modification entered into as of the
Closing Date provides for an amortization schedule extending beyond its Maturity
Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any Class A, Class B, Class C, Class D,
Class E, Class F, Class G and Class H Certificate is a fraction (a) whose
numerator is the greater of (x) zero and (y) the amount by which (i) the
Pass-Through Rate on such Class of Certificates exceeds (ii) the discount rate
used in accordance with the related Mortgage Loan documents in calculating the
Yield Maintenance Charge with respect to such Principal Prepayment and (b) whose
denominator is the amount by which (i) the Mortgage Rate on such Mortgage Loan
exceeds (ii) the discount rate used in accordance with the related Mortgage Loan
documents in calculating the Yield Maintenance Charge with respect to such
Principal Prepayment. However, under no circumstances shall the Base Interest
Fraction be greater than one. If such discount rate is greater than the Mortgage
Rate on such Mortgage Loan, then the Base Interest Fraction will equal zero. The
Servicer shall provide to the Trustee the discount rate references above for
purposes of calculating the Base Interest Fraction.
"Bid Allocation": With respect to the Servicer and each Sub-Servicer
and the proceeds of any bid pursuant to Section 7.01(c), the amount of such
proceeds (net of any expenses incurred in connection with such bid and the
transfer of servicing), multiplied by a fraction equal to (a) the Servicing Fee
Amount for the Servicer or such Sub-Servicer, as the case may be, as of such
date of determination, over (b) the aggregate of the Servicing Fee Amounts for
the Servicer and all Sub-Servicers 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, Chicago, Illinois, or the city
and state in which the Corporate Trust Office of the Trustee, or the principal
place of business of the Servicer or the Special Servicer or (but only insofar
as matters governed by the Sub-Servicing Agreement relating to the Grace
Building Whole Loan between the Servicer and Xxxxx Fargo Bank, National
Association, as subservicer are involved) the principal commercial mortgage
servicing office of Xxxxx Fargo Bank, National Association is located, are
authorized or obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC9, 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 LaSalle Bank National
Association, as Trustee, in trust for the registered holders of X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-CIBC9, 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 Trustee, the Fiscal Agent, the Depositor, or any Affiliate
thereof shall be deemed not to be outstanding, and the Voting Rights to which it
is entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver has been obtained, if such consent, approval or waiver sought from such
party would in any way increase its compensation or limit its obligations as
Servicer, Special Servicer, Depositor, Trustee or Fiscal Agent, 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 shall be entitled
to request and rely upon a certificate of the Servicer, the Special Servicer or
the Depositor in determining whether a Certificate is registered in the name of
an Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Class": With respect to any Certificates or 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-1A, Class A-2, Class
A-3 or Class A-4 Certificate.
"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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LA-1
Uncertificated Interest.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 3.4750%.
"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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LA-1A
Uncertificated Interest.
"Class A-1A Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the Weighted Average Net Mortgage Rate minus
0.2390%.
"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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LA-2
Uncertificated Interest.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 5.1080%.
"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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LA-3
Uncertificated Interest.
"Class A-3 Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the Weighted Average Net Mortgage Rate minus
0.3230%.
"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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LA-4
Uncertificated Interest.
"Class A-4 Pass Through Rate": With respect to any Distribution
Date, a rate per annum equal to the Weighted Average Net Mortgage Rate minus
0.0910%.
"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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LB
Uncertificated Interest.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the Weighted Average Net Mortgage Rate minus 0.0130%.
"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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LC
Uncertificated Interest.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LD
Uncertificated Interest.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LE
Uncertificated Interest.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LF
Uncertificated Interest.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LG
Uncertificated Interest.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LH
Uncertificated Interest.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LJ
Uncertificated Interest.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.437% 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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LK
Uncertificated Interest.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.437% 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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LL
Uncertificated Interest.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.437% and (ii) the Weighted Average
Net Mortgage Rate.
"Class LA-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 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 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 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG 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 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 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, 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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LM
Uncertificated Interest.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.437% 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 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LN
Uncertificated Interest.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.437% and (ii) the Weighted Average
Net Mortgage Rate.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-21 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions and the
undivided beneficial interest in the Grantor Trust.
"Class NR Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LNR
Uncertificated Interest.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.437% 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 A-20 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LP
Uncertificated Interest.
"Class P Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.437% 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 sole class
of "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 Certificate": Any one of the Certificates with a "Class X"
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 Notional Amount": For any date of determination, a notional
amount equal to the aggregate of the Lower-Tier Principal Amounts of the
Uncertificated Lower-Tier Interests as of the preceding Distribution Date (after
giving effect to the distributions of principal and allocation of Collateral
Support Deficit on such Distribution Date), and in the case of the first
Distribution Date, as of the Closing Date.
"Class X Pass-Through Rate": A per annum rate equal to the weighted
average of the Component Pass-Through Rates on the Class A-1 Component, the
Class A-2 Component, the Class A-3 Component, the Class A-4 Component, the Class
A-1A Component, the Class B Component, the Class C Component, the Class D
Component, the Class E Component, the Class F Component, the Class G Component,
the Class H Component, the Class J Component, the Class K Component, the Class L
Component, the Class M Component, the Class N Component, the Class P Component
and the Class NR Component (each, a "Component Pass-Through Rate"), weighted on
the basis of their respective Notional Amounts. The Component Pass-Through Rate
on the Class A-1 Component is a per annum rate equal to the Weighted Average Net
Mortgage Rate minus the Class A-1 Pass-Through Rate. The Component Pass-Through
Rate on the Class A-2 Component is a per annum rate equal to the Weighted
Average Net Mortgage Rate minus the Class A-2 Pass-Through Rate. The Component
Pass-Through Rate on the Class A-3 Component is a per annum rate equal to the
Weighted Average Net Mortgage Rate minus the Class A-3 Pass-Through Rate. The
Component Pass-Through Rate on the Class A-4 Component is a per annum rate equal
to the Weighted Average Net Mortgage Rate minus the Class A-4 Pass-Through Rate.
The Component Pass-Through Rate on the Class A-1A Component is a per annum rate
equal to the Weighted Average Net Mortgage Rate minus the Class A-1A
Pass-Through Rate. The Component Pass-Through Rate on the Class B Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class B
Pass-Through Rate. The Component Pass-Through Rate on the Class C Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class C
Pass-Through Rate. The Component Pass-Through Rate on the Class D Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class D
Pass-Through Rate. The Component Pass-Through Rate on the Class E Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class E
Pass-Through Rate. The Component Pass-Through Rate on the Class F Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class F
Pass-Through Rate. The Component Pass-Through Rate on the Class G Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class G
Pass-Through Rate. The Component Pass-Through Rate on the Class H Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class H
Pass-Through Rate. The Component Pass-Through Rate on the Class J Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class J
Pass-Through Rate. The Component Pass-Through Rate on the Class K Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class K
Pass-Through Rate. The Component Pass-Through Rate on the Class L Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class L
Pass-Through Rate. The Component Pass-Through Rate on the Class M Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class M
Pass-Through Rate. The Component Pass-Through Rate on the Class N Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class N
Pass-Through Rate. The Component Pass-Through Rate on the Class P Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class P
Pass-Through Rate. The Component Pass-Through Rate on the Class NR Component is
a per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class
NR Pass-Through Rate.
"Clearstream": Clearstream Banking, societe anonyme or any successor
thereto.
"Closing Date": June 30, 2004.
"Closing Date Deposit Amount": $1,735,797.64, representing the
aggregate amount of interest that would have accrued at the related Mortgage
Rates during the Due Period ending in July 2004, for those Mortgage Loans which
do not have their first Monthly Payment due until August 2004.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Trustee, the Servicer and
the Directing Certificateholder.
"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 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 Trustee and Servicer.
"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
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Comparative Financial Status Report" available as
of the Closing Date on the CMSA website, is reasonably acceptable to the
Servicer or the Special Servicer, as applicable.
"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 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 and Corrected Mortgage Loan
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) CMSA 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 and Corrected Mortgage Loan
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 been adopted or recommended by the CMSA) and the Realized Loss Report in the
form attached hereto as Exhibit Z (the "Realized Loss Report"). 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 or reports as may from time to time
be approved by the CMSA for commercial mortgage backed securities transaction
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA IRP" available as of the
Closing Date on the CMSA website, as is reasonably acceptable to the Servicer,
the Special Servicer and the Trustee. For the purposes of the production of the
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 Level Reserve/LOC Report": The monthly report in the
"CMSA Loan Level Reserve/LOC 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 "Loan Level Reserve/LOC Report" available as of
the Closing Date on the CMSA website, is reasonably acceptable to the Servicer.
"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 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 data file 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 Servicer and the Trustee.
"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 "CMSA NOI Adjustment Worksheet" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the Servicer or the Special
Servicer, as applicable.
"CMSA Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, or
such other form for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Operating Statement
Analysis Report" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA Property File": The 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 Reconciliation of Funds Report": The monthly report in the
"Reconciliation of Funds" 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 "Reconciliation of Funds" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Trustee.
"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
"CMSA REO Status Report" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA Servicer Watch list and Portfolio Review Guidelines": As of
each Determination Date a report, including and identifying each Non Specially
Serviced Mortgage Loan satisfying the "CMSA Portfolio Review Guidelines"
approved from time to time by the CMSA in the "CSMA Servicer Watch list" format
substantially in the form of and containing the information called for therein
for the Mortgage Loans, or such other form (including other portfolio review
guidelines) 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 Servicer Watch list"
available as of the Closing Date on the CMSA website, is reasonably acceptable
to the Servicer.
"CMSA Special Servicer Loan File": The data file in the "CMSA
Special Servicer Loan 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 Special Servicer Loan File" available as of the Closing
Date on the CMSA website, is reasonably acceptable to the Special Servicer.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to the Companion
Loans, the separate account created and maintained by the Companion Paying Agent
pursuant to Section 3.04(b) and held on behalf of the Companion Holders, which
shall be entitled "GMAC Commercial Mortgage Corporation, as Companion Paying
Agent for the Companion Holders of the Companion Loans, relating to the X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC9." The Companion Distribution
Account shall not be an asset of the Trust Fund, but instead shall be held by
the Companion Paying Agent on behalf of the Companion Holders. Any such account
shall be an Eligible Account. Notwithstanding the foregoing, if the Servicer and
the Companion Paying Agent are the same entity, the Companion Distribution
Account may be the subaccount referenced in the second to the last paragraph of
Section 3.04(a).
"Companion Holder": With respect to any Mezz Cap B Loan, the Mezz
Cap B Noteholder, with respect to any Grace Building Senior Companion Note, the
related Grace Building Senior Companion Noteholder and with respect to any Grace
Building B Note, the related Grace Building B Noteholder.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Paying Agent": The Servicer in its role as Companion
Paying Agent appointed pursuant to Section 3.31.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 3.32.
"Compensating Interest Payments": With respect to each Mortgage Loan
and Companion Loan (or REO Loan), an amount as of any Distribution Date equal to
the lesser of (i) the aggregate amount of Prepayment Interest Shortfalls, and
(ii) the aggregate of (A) that portion of Servicing Fees (or in the case of a
Companion Loan, Servicing Fees for such Companion Loan) for such Distribution
Date that is, in the case of each and every Mortgage Loan or Companion Loan and
REO Loan for which such Servicing Fees are being paid for such Distribution
Date, calculated at 0.02% per annum, and (B) all Prepayment Interest Excesses
and, to the extent earned on Principal Prepayments, Net Investment Earnings for
such Distribution Date. However, if a Prepayment Interest Shortfall occurs as a
result of the Servicer's allowing the related Mortgagor to deviate from the
terms of the related Mortgage Loan or Companion Loan documents regarding
Principal Prepayments (other than (X) subsequent to a default under the related
Mortgage Loan or Companion Loan documents, (Y) pursuant to applicable law or a
court order, or (Z) at the request or with the consent of the Directing
Certificateholder or with respect to the Grace Building Whole Loan, the Grace
Building Directing Holder), 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 (or in the case of a Companion Loan, all Servicing Fees for such Companion
Loan) and (B) all Prepayment Interest Excesses and (C) to the extent earned on
Principal Prepayments, Net Investment Earnings received by the Servicer for such
Distribution Date. In no event will the rights of the Certificateholders to
offset the aggregate Prepayment Interest Shortfalls be cumulative.
"Component": Any of the Class A-1 Component, the Class A-2
Component, the Class A-3 Component, the Class A-4 Component, the Class A-1A
Component, the Class B Component, the Class C Component, the Class D Component,
the Class E Component, the Class F Component, the Class G Component, the Class H
Component, the Class J Component, the Class K Component, the Class L Component,
the Class M Component, the Class N Component, the Class P Component and the
Class NR Component.
"Component Pass-Through Rate": Has the meaning set forth in the
definition of Class X Pass-Through Rate.
"Control Appraisal Event" shall have the meaning given thereto in
the Grace Building Co-Lender Agreement.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates (other than the Class X Certificates)
then outstanding that has a then aggregate Certificate Balance at least equal to
25% of the initial Certificate Balance of such Class of Certificates. As of the
Closing Date, the Controlling Class will be the Class NR Certificates. In
determining the most subordinate Class of Regular Certificates for the purpose
of determining the Controlling Class, such determination shall be made without
consideration of Appraisal Reductions, if any, allocated to any Class of Regular
Certificates.
"Controlling Class Certificateholder's Option Period": As defined
in Section 3.18(a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18(a)(i).
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its asset-backed securities trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities
Trust Group - JPMorgan Chase Commercial Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC9 (telecopy number (312)
904-2084).
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan or Companion Loan, whether by a consensual modification or in
connection with a bankruptcy, insolvency or similar proceeding involving the
Mortgagor), and (provided that no additional default is foreseeable in the
reasonable judgment of the Special Servicer and no other event or circumstance
exists that causes such Mortgage Loan or Companion Loan to otherwise constitute
a Specially Serviced Mortgage Loan) the servicing of which the Special Servicer
has returned to the Servicer pursuant to Section 3.21(a).
"Country Club Plaza Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 4.
"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.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The weighted average Debt
Service Coverage Ratio for all remaining related Crossed Loans for the four
calendar quarters immediately preceding the repurchase or substitution shall not
be less than the greater of (a) the Debt Service Coverage Ratio for all such
related Crossed Loans, including the affected Crossed Loan, for the four
calendar quarters immediately preceding the repurchase or substitution, and (b)
1.25x, (ii) the weighted average LTV Ratio for all remaining related Crossed
Loans determined at the time of repurchase or substitution based upon an
Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller shall not be greater than the lesser of (a) the weighted
average LTV Ratio for all such related Crossed Loans, including the affected
Crossed Loan, determined at the time of repurchase or substitution based upon an
Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller and (b) 75%, (iii) 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 shall
not cause an Adverse REMIC Event, (iv) the related Mortgage Loan Seller causes
the related Crossed Loans to become not cross-collateralized and cross-defaulted
with each other prior to such repurchase or substitution or otherwise forbears
from exercising enforcement rights against any Crossed Loan remaining in the
Trust Fund and (v) the Directing Certificateholder shall have consented to the
repurchase of the affected Crossed Loan, which consent shall not be unreasonably
withheld.
"Cure Option Notice": As defined in Section 3.09(i).
"Cure Payment": As defined in Section 3.09(i).
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, either of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan, the related Due
Date of the Mortgage Loan in June 2004, or, with respect to those Mortgage Loans
that were originated in May 2004 and have their first Due Date in July 2004,
June 1, 2004, or, with respect to those Mortgage Loans that were originated in
June 2004 and have their first Due Date in August 2004, the origination date.
"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 remaining amortization
term indicated in the Mortgage Loan Schedule).
"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. For the avoidance of doubt,
a defaulted Companion Loan does not constitute a "Defaulted Mortgage Loan".
"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, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date and with respect to the
Grace Building Whole Loan, the Due Date of the Grace Building Whole Loan.
"Determination Information": As defined in Section 3.18(a)(i).
"Directing Certificateholder": The Controlling Class
Certificateholder selected by more than 50% of the Controlling Class
Certificateholders, by Certificate Balance, as certified by the Certificate
Registrar from time to time; provided, however, that (i) absent such selection,
or (ii) until a Directing Certificateholder is so selected or (iii) upon receipt
of a notice from a majority of the Controlling Class Certificateholders, by
Certificate Balance, that a Directing Certificateholder is no longer designated,
the Controlling Class Certificateholder that owns the largest aggregate
Certificate Balance of the Controlling Class will be the Directing
Certificateholder which will initially be ARCap CMBS Fund II REIT, Inc.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers, the use of such REO Property in a trade or
business conducted by the Trust Fund or on behalf of a Companion Holder 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 an REO
Property shall not be considered to be Directly Operated 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, the Accrued
Certificate Interest in respect of such Class of Regular Certificates for such
Distribution Date, reduced (to not less than zero) by any allocations to such
Class of Certificates (other than in the case of the Class X Certificates) of
(i) the product of (a) any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date, multiplied by (b) a fraction, expressed as a decimal, the
numerator of which is the Accrued Certificate Interest in respect of such Class
of Certificates for such Distribution Date, and the denominator of which is the
aggregate Accrued Certificate Interest in respect of all the Classes of Regular
Certificates (other than the Class X Certificates) for such Distribution Date,
and (ii) any Certificate Deferred Interest for such Distribution Date allocated
to such Class pursuant to Section 4.06(a).
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account and the Excess Interest
Distribution Account, all of which may be subaccounts of a single Eligible
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
July 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 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 or Companion 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) "A+" by S&P, if the deposits are to be held in such
account for 30 days or more and the short term debt obligations of which have a
short-term rating of not less than "A1" from S&P, if the deposits are to be held
in such account for less than 30 days or, (B) "A+" by Fitch, if the deposits are
to be held in such account for 30 days or more and the short-term debt
obligations of which have a short-term rating of not less than "F-1" from Fitch,
if the deposits are to be held in such account for less than 30 days, (C)
insofar as there is then outstanding any class of Grace Building Companion Loan
Securities that is then rated by Xxxxx'x and the relevant account may
potentially hold funds related to the Grace Building Whole Loan, "A1" by
Xxxxx'x, if the deposits are to be held in such account for 30 days or more and
the short term obligations of which have a short-term rating of not less than
"P-1" from Xxxxx'x, if the deposits are to be held in such account for less than
30 days, and (D) such other account or accounts with respect to which each of
the Rating Agencies shall have confirmed in writing that the then current rating
assigned to any of the Certificates or any Grace Building Companion Loan
Securities that are currently being rated by such Rating Agency will not be
qualified, downgraded or withdrawn by reason thereof, or (ii) a segregated trust
account or accounts maintained with the corporate trust department of a federal
or state chartered depository institution or trust company that, in either case,
has 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 or Class NR Certificate; provided that any such Certificate:
(a) will cease to be considered an ERISA Restricted Certificate and (b) will
cease to be subject to the transfer restrictions contained in Section 5.02(c)
if, as of the date of a proposed transfer of such Certificate, either (i) it is
rated in one of the four highest generic ratings categories by a Rating Agency
or (ii) relevant provisions of ERISA would permit the transfer of such
Certificate to a Plan.
"Escrow Payment": Any payment received by the Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"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 the Lower-Tier REMIC or the Upper-Tier REMIC formed
hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate account or accounts (or as a
subaccount of the Distribution Account) by the Trustee pursuant to Section
3.04(c), which shall be entitled "LaSalle Bank National Association, as Trustee,
in trust for the registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC9, Excess Interest Distribution Account," and which must be an Eligible
Account (or a subaccount of an Eligible Account). The Excess Interest
Distribution Account shall not be an asset of 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, in consultation with the Directing Certificateholder, which
consultation shall be non-binding on the Special Servicer, with respect to any
Defaulted Mortgage Loan or Corrected Mortgage Loan (and, if applicable, any
defaulted Companion Loan) or REO Property (other than a Mortgage Loan or REO
Property, as the case may be, that was purchased by any of the Mortgage Loan
Sellers pursuant to Section 3 of the applicable Mortgage Loan Purchase
Agreement, the Controlling Class Option Holder, the applicable Companion Holder
or the Special Servicer pursuant to Section 3.18 or the Servicer, Special
Servicer, the Holders of the Controlling Class, or the Holders of the Class LR
Certificates pursuant to Section 9.01 or otherwise by a holder of a Grace
Building B Note pursuant to the Grace Building Co-Lender Agreement) 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. The Directing
Certificateholder shall have ten (10) Business Days to review and approve each
such recovery determination by the Special Servicer; provided, however, that if
the Directing Certificateholder fails to approve or disapprove any recovery
determination within ten (10) Business Days of receipt of the initial recovery
determination, such consent shall be deemed given.
"FIRREA": The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as it may be amended from time to time.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking
corporation and affiliate of the Trustee in its capacity as fiscal agent and its
successors in interest, or any successor fiscal agent appointed as herein
provided.
"Fitch": Fitch, Inc., and its successors in interest. If neither
Fitch nor any successor remains in existence, "Fitch" shall be deemed to refer
to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Servicer and the Special Servicer, and specific
ratings of Fitch herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan or
Companion Loan, as applicable, the excess of (i) Liquidation Proceeds of the
Mortgage Loan or Companion Loan or related REO Property net of any related
Liquidation Expenses, Unliquidated Advances, unreimbursed Advances, Liquidation
Fees, interest on Advances, unpaid Servicing Fees, and unpaid Special Servicing
Fees and additional Trust Fund expenses over (ii) the Purchase Price for such
Mortgage Loan or Companion Loan, as applicable, on the date on which such
Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A custodial account or accounts
created and maintained by the Trustee, pursuant to Section 3.04(d) on behalf of
the Trustee in trust for the Certificateholders, which shall be entitled
"LaSalle Bank National Association, as Trustee, in trust for the registered
Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC9, Gain-on-Sale Reserve
Account." Any such account shall be an Eligible Account or a subaccount of an
Eligible Account.
"Grace Building A Notes": Collectively, the Grace Building Mortgage
Loan and the Grace Building Senior Companion Notes.
"Grace Building A-2 Note": With respect to the Grace Building Whole
Loan, the related promissory note made by the related Mortgagor and secured by
the Mortgage on the Grace Building 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 Grace Building B Notes and pari passu in right of
payment to the Grace Building Mortgage Loan, the Grace Building A-3 Note and the
Grace Building A-4 Note to the extent set forth in the related Mortgage Loan
documents and as provided in the Grace Building Co-Lender Agreement.
"Grace Building A-3 Note": With respect to the Grace Building Whole
Loan, the related promissory note made by the related Mortgagor and secured by
the Mortgage on the Grace Building Mortgaged Property and designated as
promissory note A-3, which is not included in the Trust and which is senior in
right of payment to the Grace Building B Notes and pari passu in right of
payment to the Grace Building Mortgage Loan, the Grace Building A-2 Note and the
Grace Building A-4 Note to the extent set forth in the related Mortgage Loan
documents and as provided in the Grace Building Co-Lender Agreement.
"Grace Building A-4 Note": With respect to the Grace Building Whole
Loan, the related promissory note made by the related Mortgagor and secured by
the Mortgage on the Grace Building Mortgaged Property and designated as
promissory note A-4, which is not included in the Trust and which is senior in
right of payment to the Grace Building B Notes and pari passu in right of
payment to the Grace Building Mortgage Loan, the Grace Building A-2 Note and the
Grace Building A-3 Note to the extent set forth in the related Mortgage Loan
documents and as provided in the Grace Building Co-Lender Agreement.
"Grace Building B Note Representative": As defined in Section
3.29(g).
"Grace Building B Noteholder": A holder of a Grace Building B Note.
"Grace Building B Notes": With respect to the Grace Building Whole
Loan, the related promissory notes made by the related Mortgagor and secured by
the Mortgage on the Grace Building Mortgaged Property and designated as
promissory note B1, promissory note B2, promissory note B3 and promissory note
B4. The Grace Building B Notes are not included in the Trust and are subordinate
in right of payment to the Grace Building A Notes to the extent set forth in the
related Mortgage Loan documents and as provided in the Grace Building Co-Lender
Agreement.
"Grace Building Co-Lender Agreement": The co-lender agreement, by
and among the holders of the Grace Building A Notes and the holders of the Grace
Building B Notes, relating to the relative rights of such holders of the Grace
Building Whole Loan, as the same may be further amended in accordance with the
terms thereof.
"Grace Building Companion Default": As defined in Section 7.01(a).
"Grace Building Companion Loan Securities": Any class of securities
backed, wholly or partially, by any of the Grace Building Companion Notes.
"Grace Building Companion Noteholders": The Grace Building Senior
Companion Noteholders and the Grace Building B Noteholders.
"Grace Building Companion Notes": The Grace Building Senior
Companion Notes and the Grace Building B Notes.
"Grace Building Control Appraisal Event": A "Grace Building Control
Appraisal Event" will exist with respect to the Grace Building Whole Loan, if
and for so long as a "Control Appraisal Event" has occurred and is continuing
pursuant to the Grace Building Co-Lender Agreement.
"Grace Building Directing Holder": As defined in Section 3.29(g).
"Grace Building Event of Default": An "Event of Default" as defined
under the Grace Building Whole Loan documents.
"Grace Building Majority Senior Holders": As defined in Section
3.29(g).
"Grace Building Mortgage Loan": With respect to the Grace Building
Whole Loan, the Mortgage Loan that is included in the Trust (identified as
Mortgage Loan No. 2 on the Mortgage Loan Schedule), which is designated as
promissory note A-1 and is senior in right of payment to the related Grace
Building B Notes and pari passu in right of payment with the Grace Building A-2
Note, the Grace Building A-3 Note and the Grace Building A-4 Note to the extent
set forth in the Grace Building Whole Loan and as provided in the Grace Building
Co-Lender Agreement.
"Grace Building Mortgaged Property": The Mortgaged Property which
secures the Grace Building Whole Loan.
"Grace Building Remittance Date": The Business Day following the Due
Date of the Grace Building Whole Loan.
"Grace Building Senior Companion Noteholders": The holders of the
Grace Building Senior Companion Notes.
"Grace Building Senior Companion Notes": The Grace Building A-2
Note, the Grace Building A-3 Note and Grace Building A-4 Note.
"Grace Building Senior Notes": The Grace Building Mortgage Loan, the
Grace Building A-2 Note, the Grace Building A-3 Note and the Grace Building A-4
Note.
"Grace Building Whole Loan": The Grace Building Mortgage Loan,
together with the Grace Building B Notes and the Grace Building Senior Companion
Notes, each of which is secured by the same Mortgage on the Grace Building
Mortgaged Property. References herein to the Grace Building Whole Loan shall be
construed to refer to the aggregate indebtedness under the Grace Building A
Notes and the Grace Building B Notes.
"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.
"Gulfbrook AB Mortgage Loan": That certain Mortgage Loan identified
on the Mortgage Loan Schedule as loan number 68.
"Gulfbrook 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 Gulfbrook AB Mortgage Loan.
"Gulfbrook Intercreditor Agreement": That certain Intercreditor
Agreement Among Noteholders, dated as of March 4, 2002, between CIBC Inc., as
Note A Holder, and CBA Mezzanine Capital Finance, LLC, as Note B Holder. The
Gulfbrook Intercreditor Agreement relates to the Gulfbrook AB Mortgage Loan.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Trustee, the Fiscal Agent, the
Depositor, the Servicer, the Special Servicer, the Directing Certificateholder,
the Grace Building Senior Companion Noteholders, the Grace Building B
Noteholders, the Trustee 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 Fiscal Agent, the Depositor, the Servicer,
the Special Servicer, the Directing Certificateholder, the Grace Building Senior
Companion Noteholders, the Grace Building B Noteholders or any Affiliate thereof
and (iii) is not connected with the Trustee, the Fiscal Agent, the Depositor,
the Servicer, the Special Servicer, the Directing Certificateholder, the Grace
Building Senior Companion Noteholders, the Grace Building B 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 Fiscal Agent,
the Depositor, the Servicer, the Special Servicer or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any Class of
securities issued by the Trustee, the Fiscal Agent, the Depositor, the Servicer,
the Special Servicer, the Directing Certificateholder, the Grace Building Senior
Companion Noteholders, the Grace Building B Noteholder or any Affiliate thereof,
as the case may be provided ownership constitutes less than 1% of the total
assets of such person.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of Section
856(d)(3) of the Code if the Trust were a real estate investment trust (except
that the ownership test set forth in that Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
Fiscal Agent, the Servicer, any Companion Holder or the Trust, delivered to the
Trustee, the Fiscal Agent, any Companion Holder and the Servicer), so long as
the Trust does not receive or derive any income from such Person and provided
that the relationship between such Person and the Trust is at arm's length, all
within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except that
the Servicer or the Special Servicer shall not be considered to be an
Independent Contractor under the definition in this clause (i) unless an Opinion
of Counsel has been delivered to the Trustee (and with respect to the Grace
Building Whole Loan, to the Grace Building Directing Holder) to that effect) or
(ii) any other Person (including the Servicer and the Special Servicer) upon
receipt by the Trustee, the Fiscal Agent and the Servicer of an Opinion of
Counsel, which shall be at no expense to the Trustee, the Fiscal 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 Purchasers": 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 as of 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.
"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 Grace Building Co-Lender
Agreement, the Ridgemont Intercreditor Agreement, the Pontchartrain
Intercreditor Agreement, the Portage Intercreditor Agreement and the Gulfbrook
Intercreditor Agreement.
"Interest Accrual Period": With respect to any Class of Regular
Certificates or Uncertificated Lower-Tier Interests and any Distribution Date,
the period beginning on the first day of the calendar month preceding the
calendar month in which the related Distribution Date occurs and ending on the
last day of the calendar month preceding the calendar month in which such
Distribution Date occurs, calculated assuming that each month has 30 days and
each year has 360 days.
"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 Trustee pursuant to Section
3.26 in the name of "LaSalle Bank National Association, as Trustee, in trust for
the registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9,
Interest Reserve Account," into which the amounts set forth in Section 3.25
shall be deposited directly and which must be an Eligible Account or subaccount
of an Eligible Account.
"Interest Reserve Loan": Each 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 3
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Controlling Class Option Holder or the Special Servicer
pursuant to Section 3.18(b); (v) such Mortgage Loan is purchased by the Special
Servicer, the Servicer, the Holders of the Controlling Class or the Holders of
the Class LR Certificates pursuant to Section 9.01; or (vi) such Mortgage Loan
is purchased by the applicable Companion Holder pursuant to or as contemplated
by Section 3.18(d) or 3.18(f) or (c) a mezzanine lender pursuant to a mezzanine
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; (ii) such REO Property is purchased by the
Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates pursuant to Section 9.01; or (iii) such REO
Property is purchased by (a) the applicable Companion Holder pursuant to or as
contemplated by Section 3.18(d) or 3.18(f) or (b) a mezzanine lender pursuant to
a mezzanine intercreditor agreement.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with a 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 work out) with respect thereto from the related Mortgagor or any
Liquidation Proceeds or Insurance and Condemnation Proceeds with respect to the
related Mortgage Loan (in any case, other than amounts for which a Workout Fee
has been paid, or will be payable), equal to the product of the Liquidation Fee
Rate and the proceeds of such full or discounted payoff or other partial payment
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 any event
described in (1) clause (iii)(A) of the definition of "Liquidation Proceeds,"
(2) 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 applicable Mortgage Loan Seller was acting in good faith to resolve
such breach or defect, (3) clause (v) and clause (vi) of the definition of
"Liquidation Proceeds," as long as, with respect to a purchase pursuant to
clause (vi)(b), the repurchase occurs within the time period provided for in the
underlying mezzanine intercreditor agreements, (4) clause (vii) of the
definition of "Liquidation Proceeds," or (5) with respect to the Grace Building
Companion Notes, (i) no such fee shall be payable in connection with a purchase
or repurchase of a Grace Building Senior Companion Note under an Other Pooling
and Servicing Agreement and (ii) in connection with the purchase of the Grace
Building Senior Companion Notes pursuant to the Grace Building Co-Lender
Agreement by the Grace Building B Noteholders, such fee shall be payable only if
the Grace Building Senior Companion Notes are purchased after 60 days from the
transfer of servicing responsibilities on such notes to the Special Servicer and
only to the extent such fee is actually paid by the Grace Building B
Noteholders.
"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
(including a payment in full) of a Mortgaged Property or other collateral
constituting security for a Defaulted Mortgage Loan or Corrected 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, or a
Specially Serviced Mortgage Loan by the Grace Building B Noteholder, the Special
Servicer or the Servicer pursuant to Section 3.18(a) or (B) any other sale
thereof pursuant to Section 3.18(c), Section 3.18(e), Section 3.18(f) or Section
3.18(g); (iv) the repurchase of a Mortgage Loan by the applicable Mortgage Loan
Seller pursuant to Section 3 of the related Mortgage Loan Purchase Agreement;
(v) the purchase of a Mortgage Loan or REO Property by the Holders of the
Controlling Class, the Special Servicer, the Servicer or the Holders of the
Class LR Certificates pursuant to Section 9.01 or acquisition of the Mortgage
Loans and REO Properties by the Sole Certificateholder in exchange for its
certificates pursuant to Section 9.01(a); (vi) the purchase of a Mortgage Loan
or an REO Property by (a) the Companion Holder pursuant to Section 3.18(e) or
(b) any other mezzanine lender of the related Mortgage Loan or REO Loan or (vii)
in the case of the Grace Building Mortgage Loan, if such Mortgage Loan is
purchased by a Grace Building B Noteholder or its designee pursuant to the Grace
Building Co-Lender Agreement.
"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 Loan Group 2
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 2 Principal Distribution Amount (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 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 Loan Group 1
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 1 Principal Distribution Amount (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 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. As used in this Agreement, the term "Loan Pair" shall include the
Grace Building Whole Loan.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Trustee pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "LaSalle
Bank National Association, as Trustee, in trust for the registered Holders of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC9, 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)).
"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, such amounts as shall from
time to time be held in the Certificate Account, the REO Account, if any, the
Interest Reserve Account with respect thereto, the Lower-Tier Distribution
Account, 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.
"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.
"Mezz Cap B Loans": The Companion Loans, excluding the Grace
Building Companion Notes.
"Mezz Cap B Noteholders": The holders of the Mezz Cap B Loans.
"Monthly Additional Report on Recoveries and Reimbursements": With
respect to the one-month period immediately prior to the related Determination
Date, a report, containing the information and in the form as that set forth on
Exhibit X with respect to such period, in all cases both on a loan-by-loan basis
and in the aggregate. 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.
"Moody's": Xxxxx'x Investors Service, Inc.
"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.
"Mortgage": With respect to any Mortgage Loan and Companion 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 each Mortgage Loan and Companion
Loan, if applicable, 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 LaSalle Bank
National Association, as trustee for the registered holders of X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC9"; or in blank
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 (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the most recent assignee
of record thereof prior to the Trustee, or if none, by the
originator to "LaSalle Bank National Association, as trustee for the
registered holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2004-CIBC9" and, in the case of the Grace Building Whole
Loan, in its capacity as "lead lender" under the Grace Building
Co-Lender Agreement on behalf of the Grace Building Companion
Noteholders;
(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 (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the applicable assignee of
record to "LaSalle Bank National Association, as trustee for the
registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2004-CIBC9" and, in the case of the Grace Building Whole
Loan, in its capacity as "lead lender" under the Grace Building
Co-Lender Agreement on behalf of the Grace Building Companion
Noteholders;
(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 (except for recording information not yet available if the
instrument being assigned has not been returned from the applicable
recording office), executed by the applicable Mortgage Loan Seller
to "LaSalle Bank National Association, as trustee for the registered
holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9"
and, in the case of the Grace Building Whole Loan, in its capacity
as "lead lender" under the Grace Building Co-Lender Agreement on
behalf of the Grace Building Companion Noteholders;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee or
leasehold interest in the Mortgaged Property, or if the policy has
not yet been issued, an original or copy of a "marked-up" written
commitment, or the pro forma or specimen title insurance policy
(marked as binding and in all cases countersigned by the title
insurer or its authorized agent) or an agreement to provide the same
pursuant to lender's escrow trust instructions executed by an
authorized representative of the title insurance company, provided
the policy is issued within 180 days from the Closing Date, 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 or copies
thereof, as filed or recorded, or in form that is complete and
suitable for filing or recording, as appropriate, or other evidence
of filing or recording sufficient to perfect (and maintain the
perfection of) the security interest held by the originator of the
Mortgage Loan (and each assignee of record prior to the Trustee) in
and to the personalty of the Mortgagor at the Mortgaged Property (in
each case with evidence of filing or recording thereon), and to
transfer such security interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional
Debt, a co-lending agreement, a subordination agreement or other
intercreditor agreement, pursuant to which such Additional Debt will
be subordinated or pari passu to such Mortgage Loan as set forth in
such intercreditor agreement;
(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 and any
related ground lessor estoppels;
(xvi) a copy of any letter of credit securing such Mortgage
Loan and, within thirty (30) days of the Closing Date, a copy of the
appropriate transfer or assignment documents for such letter of
credit;
(xvii) a copy of any Environmental Indemnity Agreement,
together with a copy of any environmental insurance policy;
(xviii) a copy of any loan agreement(s);
(xix) a copy of any escrow agreement(s);
(xx) a copy of any property management agreement(s);
(xxi) a copy of any franchise agreements and comfort letters
related thereto;
(xxii) a copy of any lock-box or cash management agreement(s);
(xxiii) a list related to such Mortgage Loan indicating the
related Mortgage Documents included in the related Mortgage File
(the "Mortgage Loan Checklist");
(xxiv) a copy of all environmental reports that were received
by the applicable Mortgage Loan Seller relating to the relevant
Mortgaged Property;
(xxv) with respect to each Mortgage Loan that has one or more
Companion Loan(s), the related Intercreditor Agreement and a copy of
each mortgage note relating to such Companion Loan(s), rather than
the original;
provided, however, that (a) 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, (b) 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, (c) to the extent that this Agreement refers to a "Mortgage File" for any
Companion Loan, such "Mortgage File" shall be construed to mean the Mortgage
File for the related Mortgage Loan (except that references to the Mortgage Note
otherwise described above shall be construed to instead refer to a photocopy of
such Mortgage Note) and (d) the execution and/or recordation of any assignment
of Mortgage, any separate assignment of Assignment of Leases and any assignment
of any UCC Financing Statement in the name of the Trustee shall not be construed
to limit the beneficial interest of the related Companion Holder(s) in such
instrument and the benefits intended to be provided to them by such instrument,
it being acknowledged that (I) the Trustee shall hold such record title for the
benefit of the Trust as the holder of the related Mortgage Loan and the related
Companion Holder(s) collectively and (II) any efforts undertaken by the Trustee
or the Special Servicer on its behalf to enforce or obtain the benefits of such
instrument shall be construed to be so undertaken by Trustee or the Special
Servicer for the benefit of the Trust as the holder of the applicable Mortgage
Loan and the related Companion Holder(s) collectively.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. As used in this Agreement, the term "Mortgage Loan" does
not include any Companion Loan.
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan i.d. number and loan servicing number (as
specified in Exhibit A to the Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, state, county and
zip code) and name of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining
term to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xi) the applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is a 30/360 Mortgage Loan or
an Actual/360 Mortgage Loan;
(xiii) the Anticipated Repayment Date, if applicable;
(xiv) the Revised Rate of such Mortgage Loan, if any;
(xv) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvi) identifying any Mortgage Loans with which such Mortgage
Loan is cross-defaulted or cross-collateralized;
(xvii) the originator of such Mortgage Loan and the Mortgage
Loan Seller;
(xviii) whether such Mortgage Loan has a guarantor;
(xix) whether such Mortgage Loan is secured by a letter of
credit;
(xx) amount of any reserve or escrowed funds that were
deposited at origination and any ongoing periodic deposit
requirements;
(xxi) number of grace days;
(xxii) whether a cash management agreement or lock-box
agreement is in place;
(xxiii) the general property type of the related Mortgaged
Property;
(xxiv) whether the Mortgage Loan permits defeasance;
(xxv) the interest accrual period; and
(xxvi) 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. Notwithstanding any contrary provision set
forth above or any entry on the Mortgage Loan Schedule, the parties acknowledge
that the Servicing Fee Rate applicable to the Grace Building Mortgage Loan and
each Grace Building Companion Note shall be the rate per annum that is
identified in the final sentence of the definition of "Servicing Fee Rate".
"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; or (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 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 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
or the Special Servicer or resulting from a bankruptcy, insolvency or similar
proceeding involving the Mortgagor; provided, further, that if any Mortgage Loan
does not accrue interest on the basis of a 360-day year consisting of twelve
30-day months, then, solely for purposes of calculating Pass-Through Rates, the
Net Mortgage Rate of such Mortgage Loan for any one-month period preceding a
related Due Date will be the annualized rate at which interest would have to
accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued (exclusive of Default Interest or Excess Interest) in
respect of such Mortgage Loan during such one-month period at the related Net
Mortgage Rate; provided, further, that, with respect to each Interest Reserve
Loan, the Net Mortgage Rate for the one month period (A) preceding the Due Dates
that occur in January and February in any year which is not a leap year or
preceding the Due Date that occurs in February in any year which is a leap year,
and (B) preceding the Due Date in March, will be the per annum rate stated in
the related Mortgage Note less the related Administrative Cost Rate. With
respect to any REO Loan, the Net Mortgage Rate shall be calculated as described
above, determined as if the predecessor Mortgage Loan had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" approved from
time to time endorsed and put forth by the CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X, 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 or
Companion Loan that is not 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) if such Person is a U.S.
Person with respect to whom income from a Residual Certificate is attributable
to a foreign permanent establishment of fixed base, within the meaning of an
applicable income treaty, of such Person or any other U.S. Person.
"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, the Trustee or the Fiscal Agent, 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, the Trustee or the Fiscal Agent (and with respect to the Grace
Building Mortgage Loan, to each Other Servicer, as applicable) notice of such
determination. Any such determination shall be conclusive and binding on the
Servicer, the Trustee and the Fiscal Agent. In making such recoverability
determination, the Servicer, Special Servicer, Trustee or Fiscal Agent, as
applicable, 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 and the Special 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
and the Special Servicer) (among other things) the timing of recoveries. In
addition, any Person, in considering whether a P&I Advance is a Nonrecoverable
Advance, will be entitled to give due regard to the existence of any outstanding
Nonrecoverable Advance with respect to other Mortgage Loans which, at the time
of such consideration, the reimbursement of which is being deferred or delayed
by the Servicer, the Trustee or the Fiscal Agent because there is insufficient
principal available for such reimbursement, in light of the fact that proceeds
on the related Mortgage Loan are a source of reimbursement not only for the P&I
Advance under consideration, but also as a potential source of reimbursement of
such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are
or may be being deferred or delayed. In addition, any such Person may update or
change its recoverability determinations at any time (but not reverse any other
Person's determination that an Advance is a Nonrecoverable Advance) and,
consistent with the Servicing Standards, in the case of the Servicer may obtain,
promptly upon request, from the Special Servicer any reasonably required
analysis, Appraisals or market value estimates or other information in the
Special Servicer's possession for making a recoverability determination. Absent
bad faith, the Servicer's, Special Servicer's, the Trustee's or the Fiscal
Agent's determination as to the recoverability of any P&I Advance shall be
conclusive and binding on the Certificateholders. The determination by the
Servicer or the Special Servicer, the Trustee or the Fiscal Agent, 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 recoverability determination, shall be evidenced by an
Officer's Certificate delivered by either the Special Servicer or the Servicer
to the other and to the Trustee, the Fiscal Agent, the Directing
Certificateholder (and in the case of the Grace Building Mortgage Loan, the
Grace Building Directing Holder and to any Other Servicer, as applicable), the
Depositor or by the Trustee or Fiscal Agent to the Depositor, the Servicer, the
Special Servicer and the Directing Certificateholder (and in the case of the
Grace Building Mortgage Loan, the Grace Building Directing Holder and to each
Other Servicer). The Officer's Certificate shall set forth such determination of
nonrecoverability and the considerations of the Servicer, the Trustee or the
Fiscal Agent, 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 Trustee or the Fiscal Agent, as applicable, to make
such determination and shall include any existing Appraisal of the related
Mortgage Loan or Mortgaged Property). The Trustee and the Fiscal Agent shall be
entitled to conclusively rely on the Servicer's or Special Servicer's
determination that a P&I Advance is or would be nonrecoverable, and the Servicer
shall be entitled to conclusively rely on 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 or REO Property which,
in the reasonable judgment of the Servicer, the Special Servicer, the Trustee or
the Fiscal Agent, 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 recoverability determination, 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 or the Special 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 or
the Special 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 recoverability determinations at any time (but
not reverse any other Person's determination that an Advance is a Nonrecoverable
Advance) and, consistent with the Servicing Standards, in the case of the
Servicer may obtain, promptly upon request, from the Special Servicer any
reasonably required analysis, Appraisals or market value estimates or other
information in the Special Servicer's possession for making a recoverability
determination. The determination by the Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, 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 Fiscal Agent, the Directing Certificateholder (and in
the case of the Grace Building Mortgage Loan, the Grace Building Directing
Holder and to each Other Servicer, as applicable), and the Depositor, or by the
Trustee or the Fiscal Agent to the Depositor, the Servicer, the Special Servicer
and the Directing Certificateholder (and in the case of the Grace Building
Mortgage Loan, the Grace Building Directing Holder and to each Other Servicer);
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, the Trustee and the Fiscal Agent
notice of such determination. Any such determination shall be conclusive and
binding on the Servicer, the Special Servicer, the Trustee and the Fiscal Agent.
The Officer's Certificate shall set forth such determination of
nonrecoverability and the considerations of the Servicer, the Special Servicer,
the Trustee or the Fiscal Agent, 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 Fiscal
Agent shall 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, and the Servicer shall be entitled to conclusively rely
on the Special Servicer's 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.
"Notional Amount": In the case of the Class X Certificates, the
Class X 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 or the Fiscal Agent, as the case may be.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Servicer or the Special
Servicer, acceptable in form and delivered to the Trustee, except that any
opinion of counsel relating to (a) the qualification of the Upper-Tier REMIC or
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 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 Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X Notional
Amount the initial Notional Amount thereof as of the Closing Date, as specified
in the Preliminary Statement.
"Other Pooling and Servicing Agreement": Any of the pooling and
servicing agreements that create a trust fund whose assets include a Grace
Building Companion Note.
"Other Servicer": Any servicer under an Other Pooling and Servicing
Agreement.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Servicer, the Trustee or the Fiscal Agent, as applicable, pursuant to
Section 4.03 or Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the Business Day prior to the P&I Advance Date.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-2 Pass-Through Rate, the Class 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 and the Class X Pass-Through Rate.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan) or Companion Loan (or successor REO Loan), any amounts actually
collected thereon (or, in the case of a Mortgage Loan or Companion Loan (or
successor REO Loan thereto) that is part of a Loan Pair, actually collected on
such Loan Pair and allocated and paid on such Mortgage Loan or Companion Loan
(or successor REO Loan) in accordance with the related Intercreditor Agreement)
that represent late payment charges or Default Interest, other than a Yield
Maintenance Charge, and other than any Excess Interest.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the initial
Certificate Balance or Notional Amount, as applicable, of such Class of
Certificates as of the Closing Date. With respect to a Residual Certificate, the
percentage interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee,
or managed by the Trustee or any affiliate of the Trustee, if otherwise
qualifying hereunder), regardless whether issued by the Depositor, the Servicer,
the Special Servicer, the Trustee, the Fiscal Agent 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 or Xxxxx'x to any Certificate or Grace Building Companion
Loan Security 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 and, insofar as there is then outstanding any class of
Grace Building Companion Loan Securities that is then rated by
Xxxxx'x and the relevant account may potentially hold funds related
to such Grace Building Senior Companion Note, of Xxxxx'x, 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 Class of Certificates (or, insofar as there is then
outstanding any class of Grace Building Companion Loan Securities
that is then rated by such Rating Agency, such class of securities)
or, insofar as there is then outstanding any class of Grace Building
Companion Loan Securities that is then rated by Xxxxx'x, of the
then-current rating assigned by Xxxxx'x to such class of securities,
in each case 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 and,
insofar as there is then outstanding any class of Grace Building
Companion Loan Securities that is then rated by Xxxxx'x and the
relevant account may potentially hold funds related to such Grace
Building Senior Companion Note, of Xxxxx'x 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 Class
of Certificates (or, insofar as there is then outstanding any class
of Grace Building Companion Loan Securities that is then rated by
such Rating Agency, to such class of securities) or, insofar as
there is then outstanding any class of Grace Building Companion Loan
Securities that is then rated by Xxxxx'x, of the then-current rating
assigned by Xxxxx'x to such class of securities, in each case as
evidenced in writing; 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 and, insofar as there is then outstanding any class of
Grace Building Companion Loan Securities that is then rated by
Xxxxx'x and the relevant account may potentially hold funds related
to such Grace Building Senior Companion Note, of Xxxxx'x (or such
lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned by each Rating Agency to any
Class of Certificates (or, insofar as there is then outstanding any
class of Grace Building Companion Loan Securities that is then rated
by such Rating Agency, to such class of securities) or, insofar as
there is then outstanding any class of Grace Building Companion Loan
Securities that is then rated by Xxxxx'x, of the then-current rating
assigned by Xxxxx'x to such class of securities, in each case as
evidenced in writing);
(vi) money market funds, rated in the highest rating
categories of each Rating Agency and, insofar as there is then
outstanding any class of Grace Building Companion Loan Securities
that is then rated by Xxxxx'x and the relevant account may
potentially hold funds related to such Grace Building Senior
Companion Note, of Xxxxx'x; 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 assigned by such Rating Agency of to any Class
of Certificates (or, insofar as there is then outstanding any class
of Grace Building Companion Loan Securities that is then rated by
such Rating Agency, to such class of securities) or, insofar as
there is then outstanding any class of Grace Building Companion Loan
Securities that is then rated by Xxxxx'x, of the then-current rating
assigned by Xxxxx'x to such class of securities, in each case as
evidenced in writing 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 or, insofar as a Grace Building Senior
Companion Note is then included in a commercial mortgage securitization trust
with respect to the whole or any portion of which a REMIC election has been or
will be made and the relevant account may potentially hold funds related to such
Grace Building Senior Companion Note, such whole or portion as a REMIC under the
Code or result in imposition of a tax on the Upper-Tier REMIC or the Lower-Tier
REMIC or, if applicable, such whole or portion. Permitted Investments that are
subject to prepayment or call may not be purchased at a price in excess of par.
"Permitted Transferee": Any Person who is a Qualified Institutional
Buyer.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Pontchartrain AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 44.
"Pontchartrain 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 Pontchartrain AB Mortgage Loan.
"Pontchartrain Intercreditor Agreement": That certain Intercreditor
Agreement Among Noteholders, dated as of April 7, 2004, between CIBC Inc., as
Note A Holder, and CBA Mezzanine Capital Finance, LLC, as Note B Holder. The
Pontchartrain Intercreditor Agreement relates to the Pontchartrain AB Mortgage
Loan.
"Portage AB Mortgage Loan": That certain Mortgage Loan identified on
the Mortgage Loan Schedule as loan number 53.
"Portage 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 Portage AB Mortgage Loan.
"Portage Intercreditor Agreement": That certain Intercreditor
Agreement Among Noteholders, dated as of May 4, 2004, between CIBC Inc., as Note
A Holder, and CBA Mezzanine Capital Finance, LLC, as Note B Holder. The Portage
Intercreditor Agreement relates to the Portage AB Mortgage Loan.
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization premium, if any, on the Certificates for federal income tax
purposes; provided it is assumed that each Mortgage Loan with an Anticipated
Repayment Date prepays on such date.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Due Date and prior to the following
Determination Date, the amount of interest (net of the related Servicing Fees
and any 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. The Primary Servicing Fee under the Sub-Servicing
Agreement related to each mortgage loan that forms a part of the Grace Building
Whole Loan shall be two basis points (0.02%) per annum.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of the New York city edition of The Wall Street Journal (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Trustee in its reasonable discretion) as may be in effect
from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Trustee in its reasonable discretion) as
may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date and any Class of Regular Certificates, an amount equal to 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 Purchasers, each Mortgage
Loan Seller and a certain financial market publisher (which initially shall be
Bloomberg, L.P.), any Companion Holder, each party to this Agreement, the
Directing Certificateholder, any designee of the Depositor, using the form
attached hereto as Exhibit V, certifying that such Person is a
Certificateholder, a beneficial owner or a prospective purchaser of a
Certificate.
"Prospectus": The Prospectus dated May 12, 2004, as supplemented by
the Prospectus Supplement dated June 25, 2004, relating to the offering of the
Offered Certificates.
"Purchase Option Notice": As defined in Section 3.18 (a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan)
or, if applicable, Loan Pair to be purchased by a Mortgage Loan Seller pursuant
to Section 3 of the related Mortgage Loan Purchase Agreement, by the Majority
Controlling Class Certificateholder, the Special Servicer or the Servicer
pursuant to Section 3.18(b), by the Servicer, the Special Servicer, the Holders
of the Controlling Class or the Holders of the Class LR Certificates pursuant to
Section 9.01 or to be otherwise sold pursuant to Section 3.18(d), a price equal
to:
(i) the outstanding principal balance of such Mortgage Loan
(or related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or
the related REO Loan) at the related Mortgage Rate in effect from
time to time (exclusive of Excess Interest) to but not including the
Due Date immediately preceding the Determination Date for the
related Distribution Date 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 and all additional Trust Fund expenses in respect of
such Mortgage Loan; plus
(iv) if such Mortgage Loan (or REO Loan) is being purchased by
a Mortgage Loan Seller pursuant to Section 3 of the applicable
Mortgage Loan Purchase Agreement, to the extent not otherwise
included pursuant to clause (iii), all reasonable out-of-pocket
expenses reasonably incurred or to be incurred by the Servicer, the
Special Servicer, the Depositor and the Trustee in respect of the
Breach or Defect giving rise to the repurchase obligation, including
any expenses arising out of the enforcement of the repurchase
obligation, including, without limitation, all legal fees and
expenses and any expenses of the Trust Fund relating to such
Mortgage Loan (or REO Loan); plus
(v) Liquidation Fees payable with respect to such Mortgage
Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan. With respect to any REO Property to be purchased or sold
pursuant to Section 3.18(b) that relates to a Loan Pair, the term "REO Loan"
shall mean the REO Loan with respect to both the related Mortgage Loan and the
related Companion Loans.
"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 "A- " by S&P and "A " by Fitch
and, insofar as a mortgage loan that forms a part of the Grace Building Whole
Loan is involved and the relevant company is rated by Xxxxx'x, an insurer
financial strength rating of at least "A2" by Xxxxx'x and (ii) with respect to
the fidelity bond and errors and omissions Insurance Policy required to be
maintained pursuant to Section 3.07(c), except as set forth in Section 3.07(c),
an insurance company that has a claims paying ability rated no lower than two
ratings below the rating assigned to the then highest rated outstanding
Certificate, but in no event lower than "A- " by S&P and "A " by Fitch (or, if
not rated by one of such Rating Agencies, then at least "A2" by Xxxxx'x or "A"
by two other nationally recognized statistical rating organizations (which may
include the other Rating Agency)) and if any Grace Building Companion Loan
Securities are then rated by Xxxxx'x, has a rating of at least "A2" by Xxxxx'x
(or if such insurance company is not then rated by Xxxxx'x, has a rating of at
least "AIX" by A.M. Best's Key Rating Guide) 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 by such Rating Agency to any Class of Certificates (or,
insofar as there is then outstanding any class of Grace Building Companion Loan
Securities that is then rated by such Rating Agency, to such class of
securities) or, insofar as there is then outstanding any class of Grace Building
Companion Loan Securities that is then rated by Xxxxx'x, of the then-current
rating assigned by Xxxxx'x to such class of securities, in each case as
evidenced in writing.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not less than
the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same Due Date as
and grace period no longer than that of the deleted Mortgage Loan; (iv) accrue
interest on the same basis as the deleted Mortgage Loan (for example, on the
basis of a 360-day year consisting of twelve 30-day months); (v) have a
remaining term to stated maturity not greater than, and not more than two years
less than, the remaining term to stated maturity of the deleted Mortgage Loan;
(vi) have a then current loan-to-value ratio not higher than that of the deleted
Mortgage Loan as of the Closing Date and a current loan-to-value ratio not
higher than the then current loan-to-value ratio of the deleted Mortgage Loan,
in each case using the "value" as determined using an MAI appraisal; (vii)
comply (except in a manner that would not be adverse to the interests of the
Certificateholders) as of the date of substitution with all of the
representations and warranties set forth in the applicable Mortgage Loan
Purchase Agreement; (viii) have an environmental report that indicates no
material adverse environmental conditions with respect to the related Mortgaged
Property and which will be delivered as a part of the related Mortgage File;
(ix) have a then current debt service coverage ratio of not less than the
original debt service coverage ratio of the deleted Mortgage Loan as of the
Closing Date and a current debt service coverage ratio of not less than the
current debt service coverage ratio of the deleted Mortgage Loan; (x) constitute
a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of
the Code as evidenced by an Opinion of Counsel (provided at the applicable
Mortgage Loan Seller's expense); (xi) not have a maturity date or an
amortization schedule after the date two years prior to the Rated Final
Distribution Date; (xii) have comparable prepayment restrictions; (xiii) not be
substituted for a deleted Mortgage Loan unless the Trustee has received prior
confirmation in writing by each Rating Agency that such substitution will not
result in the withdrawal, downgrade, or qualification of the rating assigned by
the Rating Agency to any Class of Certificates then rated by the Rating Agency
(the cost, if any, of obtaining such confirmation to be paid by the applicable
Mortgage Loan Seller); (xiv) have been approved by the Directing
Certificateholder; (xv) prohibit defeasance within two years of the Closing
Date; (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 either of such REMICs other than a
tax on income expressly permitted or contemplated to be received by the terms of
this Agreement, as determined by an Opinion of Counsel; and (xvii) have an
engineering report with respect to the related Mortgaged Property that 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 (i) through
(xvi) and the rates described in clause (ii) above and the remaining term to
stated maturity referred to in clause (v) above shall be determined on a
weighted average basis, provided that no individual Mortgage Rate (net of the
Servicing Fee Rate and the Trustee Fee Rate) shall be lower than the highest
fixed Pass-Through Rate (and not subject to a cap equal to the Weighted Average
Net Mortgage Rate) of any class of Regular Certificates having a principal
balance then outstanding. When a Qualified Substitute Mortgage Loan is
substituted for a deleted Mortgage Loan, (i) 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
Certificateholders and (ii) such Qualified Substitute Mortgage Loan shall become
part of the same Loan Group as the deleted Mortgage Loan.
"Rated Final Distribution Date": As to each Class of Certificates,
June 12, 2041, 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 S&P and Fitch or their successors in
interest, and any rating agency rating the Grace Building Companion Loan
Securities. 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 S&P and Fitch herein referenced shall be
deemed to refer to the equivalent ratings of the party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"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 Trustee as custodian for the
Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate.
"Related Certificates," "Related Uncertificated Lower-Tier
Interests" and "Related Component of Class X Certificates": For each of the
following Classes of Uncertificated Lower-Tier Interests, the related Class of
Certificates and the related Component of Class X Certificates; for each of the
following Class of Certificates, the related Class of Uncertificated Lower-Tier
Interests and the related Component of Class X Certificates; and for the
following Component of Class X Certificates, the related Class of Uncertificated
Lower-Tier Interests and the related Class of Certificates set forth below:
Related Uncertificated Related Component of
Related Certificate Lower-Tier Interest Class X Certificates
---------------------- ------------------------- --------------------
Class A-1 Certificate Class XX-0 XX-0
Uncertificated
Interest
Class A-1A Certificate Class LA-1A XA-1A
Uncertificated
Interest
Class A-2 Certificate Class XX-0 XX-0
Uncertificated
Interest
Class A-3 Certificate Class XX-0 XX-0
Uncertificated
Interest
Class A-4 Certificate Class LA-4 XA-4
Uncertificated
Interest
Class B Certificate Class LB XB
Uncertificated
Interest
Class C Certificate Class LC XC
Uncertificated
Interest
Class D Certificate Class LD XD
Uncertificated
Interest
Class E Certificate Class LE XE
Uncertificated
Interest
Class F Certificate Class LF XF
Uncertificated
Interest
Class G Certificate Class LG XG
Uncertificated
Interest
Class H Certificate Class LH XH
Uncertificated
Interest
Class J Certificate Class LJ XJ
Uncertificated
Interest
Class K Certificate Class LK XK
Uncertificated
Interest
Class L Certificate Class LL XL
Uncertificated
Interest
Class M Certificate Class LM XM
Uncertificated
Interest
Class N Certificate Class LN XN
Uncertificated
Interest
Class P Certificate Class LP XP
Uncertificated
Interest
Class NR Certificate Class LNR XNR
Uncertificated
Interest
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 10.01.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "ARCap
Servicing, Inc., or the applicable successor Special Servicer, as Special
Servicer, for the benefit of LaSalle Bank National Association, as trustee, in
trust for registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9, 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 or Companion 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 or Companion 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 or Companion 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 or Companion Loan as of the date of the related REO
Acquisition. All amounts due and owing in respect of the predecessor Mortgage
Loan or Companion 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, the Trustee or the Fiscal Agent, as applicable,
in respect of the predecessor Mortgage Loan or Companion Loan as of the date of
the related REO Acquisition, including, without limitation, any unpaid Special
Servicing Fees and Servicing Fees and any unreimbursed Advances, additional
Trust Fund expenses, together with any interest accrued and payable to the
Servicer, the Trustee or the Fiscal Agent, 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, the Trustee or the Fiscal Agent,
as applicable, in respect of an REO Loan. In addition, Unliquidated Advances 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" 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 Servicer or the Special Servicer for the payment of the costs
of operating, managing, selling, leasing and maintaining the related REO
Property) shall be treated: first, as a recovery of accrued and unpaid interest
on such REO Loan at the related Mortgage Rate in effect from time to time to,
but not including, the Due Date in the Due Period of receipt (exclusive of any
portion that constitutes Excess Interest); second, as a recovery of Unliquidated
Advances with respect to such REO Loan; third, as a recovery of principal of
such REO Loan to the extent of its entire unpaid principal balance; in each
case, that relate to Servicing Advances and 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" or "Loan
Group 2 Principal Distribution Amount"; fourth, as a recovery of Nonrecoverable
Advances with respect to such REO Loan; and fifth, 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) Penalty
Charges, (ii) Yield Maintenance Charges and (iii) Excess Interest and other
amounts, in that order; provided, that if the Grace Building Mortgage Loan and
Grace Building Senior Companion Notes comprising the Grace Building Whole Loan
become REO Loans, the treatment of the foregoing amounts with respect to the
Grace Building Whole Loan shall be subject to the terms of the Grace Building
Co-Lender Agreement and this 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) through
foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Request for Release": A release signed by a Servicing Officer of
the Servicer or the Special Servicer, as applicable, in the form of Exhibit E
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to each of the initial
Trustee or the Fiscal Agent, any Vice President, Assistant Vice-President,
Assistant Secretary or corporate trust officer in the corporate trust department
of the Trustee or the Fiscal Agent, and with respect to any successor Trustee or
the Fiscal Agent, any officer or assistant officer in the corporate trust
department of the Trustee or the Fiscal Agent or any other officer of the
Trustee or the Fiscal 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 the Fiscal 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 Purchasers 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.
"Rexville Towne Center Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 5.
"Ridgemont AB Mortgage Loan": That certain Mortgage Loan identified
on the Mortgage Loan Schedule as loan number 9.
"Ridgemont 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 Ridgemont AB Mortgage Loan.
"Ridgemont Intercreditor Agreement": That certain Intercreditor
Agreement Among Noteholders, dated as of May 7, 2004, between CIBC Inc., as Note
A Holder, and CBA Mezzanine Capital Finance, LLC, as Note B Holder. The
Ridgemont Intercreditor Agreement relates to the Ridgemont AB 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 Fiscal 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 Determination Date (or, with respect to each
Mortgage Loan with a Due Date occurring or a grace period ending after the
related Determination Date, the related Due Date or last day of such grace
period, as applicable) (and not previously distributed to Certificateholders) or
(ii) advanced by the Servicer, the Trustee or the Fiscal Agent, as applicable,
pursuant to Section 4.03 in respect of such Distribution Date, and (b) all
Balloon Payments to the extent received on or prior to the related Determination
Date (or, with respect to each Mortgage Loan with a Due Date occurring or a
grace period ending after the related Determination Date, the related Due Date
or last day of such grace period, as applicable, to the extent received by the
Servicer as of the Business Day preceding 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, any
security agreement or equivalent instrument, whether contained in the related
Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security for
repayment of such Mortgage Loan.
"Servicer": GMAC Commercial Mortgage Corporation, and its successors
in interest and assigns, or any successor Servicer appointed as allowed herein.
"Servicer Servicing Standard": As defined in Section 3.01(a)(i).
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the Servicer, Special Servicer, the Trustee
or the Fiscal Agent, as applicable, in connection with the servicing and
administering of (a) a Mortgage Loan (and in the case of an AB Mortgage Loan,
the related Companion Loan; and in the case of the Grace Building Mortgage Loan,
the Grace Building Companion Notes) 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 amount
specifically designated herein to be paid as a "Servicing Advance".
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 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. 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.
"Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan, a rate equal to the per annum rate set forth on the Mortgage Loan Schedule
under the heading "Servicing Fee Rate," in each case computed on the basis of
the Stated Principal Balance of the related Mortgage Loan. With respect to each
Mezz Cap B Loan, the rate payable to the Servicer with respect to the related
Mortgage Loan to the extent not inconsistent with the related Intercreditor
Agreement. With respect to the Grace Building Mortgage Loan, the "Servicing Fee
Rate" is four basis points (0.04%) per annum. With respect to the Grace Building
Companion Notes, the "Servicing Fee Rate" is two basis points (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 engineering reports,
environmental reports or property condition reports; (ii) other than with
respect to a hotel property (except with respect to tenanted commercial space
within a hotel property), copies of a rent roll and, for any office, retail,
industrial or warehouse property, a copy of all leases and estoppels and
subordination and non-disturbance agreements 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 or other applicable insurance
policies, if any, 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; (viii) a copy of the Appraisal for the related Mortgaged
Property(ies); (ix) the documents that were delivered by or on behalf of the
Mortgagor, which documents were required to be delivered in connection with the
closing of such Mortgage Loan; and (x) for any Mortgage Loan that the related
Mortgaged Property is leased to a single tenant, a copy of the lease.
"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 an AB Mortgage Loan, the
related Companion Loan; and in the case of the Grace Building Mortgage Loan, the
Grace Building Companion Notes) whose name and specimen signature appear on a
list of servicing officers furnished by the Servicer and the Special Servicer to
the Trustee and the Depositor on the Closing Date as such list may be amended
from time to time thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standards": 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 or
Companion Loan, the occurrence of any of the following events:
(i) with respect to a Mortgage Loan or Companion 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 or Companion Loan has been
extended, a payment default shall have occurred at such extended
maturity date; or
(ii) with respect to each Mortgage Loan or Companion Loan that
is a Balloon Mortgage Loan, (a) the 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 the Mortgage Loan or Companion Loan will become
a Specially Serviced Mortgage Loan immediately if the related
Mortgagor fails to pay any Assumed Scheduled Payment at any time
before the refinancing or, if such refinancing does not occur, the
related Mortgage Loan or Companion Loan will become a Specially
Serviced Mortgage Loan at the end of such 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) is
more than 60 days delinquent, unless, with respect to a Companion
Loan or the Grace Building Mortgage Loan, the Companion Holder or
Grace Building B Noteholder, as applicable, has cured such
delinquent monthly payment prior to such Monthly Payment becoming
more than 60 days delinquent, pursuant to the applicable
Intercreditor Agreement or Section 3.18(f) of this Agreement; or
(iv) the Servicer makes a judgment, or receives from the
Special Servicer 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 or Companion 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
the Servicer determines in its good faith reasonable judgment may
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 such Mortgage Loan or Companion Loan (or
if no grace period is specified for those defaults which are capable
of cure, 60 days); or
(ix) the Servicer has received notice of the foreclosure or
proposed foreclosure of any lien on the related Mortgaged Property.
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 Grace Building
Companion Note becomes a Specially Serviced Mortgage Loan, the Grace
Building Mortgage Loan shall also become a Specially Serviced
Mortgage Loan. If the Grace Building Mortgage Loan becomes a
Specially Serviced Mortgage Loan, the Grace Building Companion Notes
shall become Specially Serviced Mortgage Loans; provided that if a
Grace Building B Noteholder prevents the occurrence of a Servicing
Transfer Event with respect to the Grace Building Senior Notes
through the exercise of cure rights with respect to the Grace
Building Senior Notes, then the existence of such Servicing Transfer
Event with respect to either or all of the Grace Building B Notes
(because such cure rights do not include the cure of defaults under
the Grace Building B Notes) will not, in and of itself, result in
any Grace Building Senior Note becoming a Specially Serviced
Mortgage Loan unless a separate Servicing Transfer Event has
occurred with respect to the Grace Building Senior Notes. 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.
"Similar Law": As defined in Section 5.02(c).
"Sole Certificateholder": Any Certificate Owner of a book-entry
Certificate or a Holder of a definitive Certificate holding 100% of the Class X,
Class A-1A, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class P and Class NR Certificates or, with respect to such Classes of
Certificates, an assignment of the voting rights thereof; provided, however,
that the Certificate Balances of the Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D and Class E Certificates have been retired.
"Special Servicer": ARCap Servicing, Inc., 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, 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 that is a successor to a Mortgage 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 such REO Loan; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan), Liquidation Proceeds, REO Revenues received with
respect to such REO Loan.
A Mortgage Loan or a REO Loan that is a successor to a Mortgage 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).
"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.
"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.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan after application of all scheduled payments of
principal and interest due during or prior to the month of substitution. In the
event that one or more Qualified Substitute Mortgage Loans are substituted (at
the same time 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 Stated Principal
Balances 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 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(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby and to be administered hereunder.
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto (subject to, in the case of the Grace Building Whole Loan, the interests
of the Grace Building Companion Noteholders in the related Mortgage File); (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-Off Date (or after the date of substitution
with respect to a Qualified Substitute Mortgage Loan); (iii) any REO Property
(to the extent of the Trust Fund's interest therein); (iv) all revenues received
in respect of any REO Property (to the extent of the Trust Fund's interest
therein); (v) the Servicer's, the Special Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to this Agreement and any proceeds thereof (to the extent of
the Trust Fund's interest therein); (vi) any Assignments of Leases and any
security agreements (to the extent of the Trust Fund's interest therein); (vii)
any letters of credit, indemnities, guaranties or lease enhancement policies
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (viii) all assets deposited in the Servicing Accounts
(to the extent of the Trust Fund's interest therein), amounts on deposit in the
Certificate Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Gain-on-Sale Reserve Account and any REO Account (to the
extent of the Trust Fund's interest in such REO Account), including any
reinvestment income, as applicable; (ix) any Environmental Indemnity Agreements
(to the extent of the Trust Fund's interest therein); (x) the rights and
remedies under each Mortgage Loan Purchase Agreement; (xi) the Uncertificated
Lower-Tier Interests; and (xii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Mortgagor).
"Trustee": LaSalle Bank National Association, a national banking
association, in its capacity as trustee and its successors in interest, or any
successor trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(f).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement. No portion of the Trustee Fee
shall be calculated by reference to any Companion Loan or the principal balance
of any Companion Loan.
"Trustee Fee Rate": A rate equal to 0.0021% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan (and in
the same manner as interest is calculated on the related Mortgage Loan) as of
the preceding Distribution Date.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class XX-0, Xxxxx
XX-0X, Xxxxx XX-0, Class LA-3, Class LA-4, Class LB, Class LC, Class LD, Class
LE, Class LF, Class LG, Class LH, Class LJ, Class LK, Class LL, Class LM, Class
LN, Class LP and the Class LNR Uncertificated Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., CIBC World Markets
Corp., ABN AMRO Incorporated and Xxxxxx Xxxxxxx & Co. Incorporated.
"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 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 on or prior to the Determination
Date (or, with respect to each Mortgage Loan with a Due Date occurring or a
grace period ending after the related Determination Date, the related Due Date
or last day of such grace period, as applicable, to the extent received by the
Servicer as of the Business Day preceding the related P&I Advance 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 on or prior to the related
Determination Date, but in each case only to the extent that such principal
portion represents a recovery of principal for which no advance was previously
made pursuant to Section 4.03 in respect of a preceding Distribution Date.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Trustee pursuant to Section 3.04(b) in trust for the Certificateholders,
which shall be entitled "LaSalle Bank National Association, as Trustee, in trust
for the registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9,
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, and (ii) in the case of any other Class of Regular Certificates a
percentage equal to the product of 96% and a fraction, the numerator of which is
equal to the aggregate Certificate Balance of such Class, in each case,
determined as of the Distribution Date immediately preceding such time, and the
denominator of which is equal to the aggregate Certificate Balance of the
Regular Certificates, each determined as of the Distribution Date immediately
preceding such time. None of the Class R Certificates and the Class LR
Certificates will be entitled to any Voting Rights. Voting Rights allocated to a
Class of Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. Appraisal Reductions shall not result in a change in the Class
Voting Rights of any Class of Regular Certificates.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans 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 3.26(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 an obligation of the Mortgagor to pay such amount under the
terms of the 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.
"Workout Fee Rate": A fee of 1.00% of each collection (other than
Penalty Charges and Excess 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 Special Servicer or
the Trustee; provided, however, that for purposes of calculating
distributions on the Certificates, Principal Prepayments with respect to
any Mortgage Loan are deemed to be received on the date they are applied
in accordance with the Servicing Standards consistent with the terms of
the related Mortgage Note and Mortgage to reduce the outstanding principal
balance of such Mortgage Loan on which interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates on such Distribution
Date after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral Support
Deficit allocated to such Class on the immediately preceding Distribution
Date pursuant to Section 4.04, (c) the addition of any Certificate
Deferred Interest allocated to such Class and added to such Certificate
Balance pursuant to Section 4.06(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 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), 6(c), 6(d), 6(e), 6(f), 6(g), 11, 12, 14, 15, 16, 18, 19 and 20
of each of the Mortgage Loan Purchase Agreements, (iii) the Intercreditor
Agreements and (iv) all other assets included or to be included in the Trust
Fund. Such assignment includes all interest and principal received or receivable
on or with respect to the Mortgage Loans (other than payments of principal and
interest due and payable on the Mortgage Loans on or before the Cut-off Date).
The transfer of the Mortgage Loans and the related rights and property
accomplished hereby is absolute and, notwithstanding Section 11.07, is intended
by the parties to constitute a sale. In connection with the assignment to the
Trustee of Sections 1, 2, 3, 4, 5, 6(a), 6(c), 6(d), 6(e), 6(f), 6(g), 11, 12,
14, 15, 16, 18, 19 and 20 of each of the Mortgage Loan Purchase Agreements, it
is intended that the Trustee get the benefit of Sections 11, 12 and 15 thereof
in connection with any exercise of rights under the assigned Sections, and the
Depositor shall use its best efforts to make available to the Trustee the
benefits of Sections 11, 12 and 15 in connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, with copies to the Servicer. If the applicable
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original Mortgage Note, such Mortgage Loan Seller shall
deliver a copy or duplicate original of such Mortgage Note, together with an
affidavit certifying that the original thereof has been lost or destroyed and
indemnifying the Trustee. If the applicable Mortgage Loan Seller cannot deliver,
or cause to be delivered, as to any Mortgage Loan, any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the
definition of "Mortgage File," with evidence of filing or recording thereon,
solely because of a delay caused by the public filing or recording office where
such document or instrument has been delivered for filing or recordation, the
delivery requirements of the applicable Mortgage Loan Purchase Agreement and
this Section 2.01(b) shall be deemed to have been satisfied on a provisional
basis as of the Closing Date as to such non-delivered document or instrument,
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided that a duplicate original or a photocopy
of such non-delivered document or instrument (certified by the applicable public
filing or recording office, the applicable title insurance company or the
applicable Mortgage Loan Seller to be a true and complete copy of the original
thereof submitted for filing or recording) is delivered to the Trustee or a
Custodian appointed thereby on or before the Closing Date, and either the
original of such non-delivered document or instrument, or a photocopy thereof
(certified by the appropriate county recorder's office, in the case of the
documents and/or instruments referred to in clause (ii) of the definition of
"Mortgage File," to be a true and complete copy of the original thereof
submitted for recording), with evidence of filing or recording thereon, is
delivered to the Trustee or such Custodian within 180 days of the Closing Date
(or within such longer period, not to exceed 18 months, after the Closing Date
as the Trustee may consent to, which consent shall not be unreasonably withheld
so long as the applicable Mortgage Loan Seller is, as certified in writing to
the Trustee no less often than every 90 days, attempting in good faith to obtain
from the appropriate public filing office or county recorder's office such
original or photocopy). If the applicable Mortgage Loan Seller cannot deliver,
or cause to be delivered, as to any Mortgage Loan, any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii) and (xi) of the definition
of "Mortgage File," with evidence of filing or recording thereon, for any other
reason, including, without limitation, that such non-delivered document or
instrument has been lost or destroyed, the delivery requirements of the
applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be
deemed to have been satisfied as to such non-delivered document or instrument,
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided that a photocopy of such non-delivered
document or instrument (with evidence of filing or recording thereon and
certified in the case of the documents and/or instruments referred to in clause
(ii) of the definition of "Mortgage File" by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date. Neither the Trustee nor any Custodian shall in any way
be liable for any failure by any Mortgage Loan Seller or the Depositor to comply
with the delivery requirements of the related Mortgage Loan Purchase Agreement
and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, the
applicable Mortgage Loan Seller cannot deliver in complete and recordable form
(or form suitable for filing, if applicable) any one of the assignments in favor
of the Trustee referred to in clause (iii), (v) (to the extent not already
assigned pursuant to clause (iii)), (vii) (to the extent not already assigned
pursuant to clause (iii)) 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 applicable 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. The applicable Mortgage Loan Seller shall pay any costs of
assignment or amendment of such letter(s) of credit required in order for the
Servicer to draw on such letter(s) of credit.
(c) Pursuant to each Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller is required at its sole cost and expense, to itself, or to
engage a third party to, put each Assignment of Mortgage and each assignment of
each UCC Financing Statement ("Assignments" and, individually, "Assignment")
relating to the Mortgage Loans conveyed by it under the applicable Mortgage Loan
Purchase Agreement in proper form for filing or recording, as applicable, and to
submit such Assignments for filing or recording, as the case may be, in the
applicable public filing or recording office, and on the Closing Date, such
Mortgage Loan Seller may deliver one (1) omnibus assignment for all 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), the related Mortgage Loan Seller will itself, or a third party
at such Mortgage Loan Seller's expense will, promptly (and in any event within
120 days of the later of the Closing Date and the Trustee's actual receipt of
the related documents and the necessary recording and filing information) 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 to the agent of the Mortgage Loan Seller who will then be responsible for
delivery of the same 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 to the agent of the Mortgage Loan Seller who will then be responsible
for delivery of the same 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 its own
expense, a substitute therefor or cure such defect, as the case may be, and
thereafter the Mortgage Loan Seller or its designee shall, at the expense of the
related Mortgage Loan Seller, upon receipt thereof cause the same to be duly
recorded or filed. If, by the first anniversary of the Closing Date, the Trustee
has not received confirmation of the recording or filing as the case may be, of
any such Assignment, it shall so advise the related Mortgage Loan Seller who may
then pursue such confirmation itself or request that the Trustee pursue such
confirmation at the related Mortgage Loan Seller's expense, and upon such a
request and provision for payment of such expenses satisfactory to the Trustee,
the Trustee, at the expense of the applicable Mortgage Loan Seller, shall cause
a search of the land records of each jurisdiction and of the records of the
offices of the applicable Secretary of State for confirmation that the
Assignment appears in such records and retain a copy of such confirmation in the
related Mortgage File. In the event that confirmation of the recording or filing
of an Assignment cannot be obtained, the Trustee or the related Mortgage Loan
Seller, as applicable, shall promptly inform the other and the Trustee shall
provide such Mortgage Loan Seller with a copy of the Assignment and request the
preparation of a new Assignment. The related 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
financial statements, operating statements and any other information provided by
the respective Mortgagor from time to time, but excluding draft documents,
privileged or internal communications or 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) and, if applicable, on behalf of the related Companion
Holder. Such documents and records shall be any documents and records that would
otherwise be a part of the Servicing File.
(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 in
the name of the applicable Mortgage Loan Seller or any other name to be
transferred to the Servicer (or a Sub-Servicer) for deposit into Servicing
Accounts.
(g) The Trustee hereby acknowledges the receipt by it of the Closing
Date Deposit Amount. The Trustee 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, in good faith and without notice of any adverse
claim, of the applicable documents specified in clause (i) of the definition of
"Mortgage File" with respect to each Mortgage Loan, of a fully executed original
counterpart of each of the Mortgage Loan Purchase Agreements, and of all other
assets included in the Trust Fund and (2) declares (a) that it or a Custodian on
its behalf holds and will hold such documents and the other documents delivered
or caused to be delivered by the Mortgage Loan Sellers that constitute the
Mortgage Files, and (b) that it holds and will hold such other assets included
in the Trust Fund, in trust for the exclusive use and benefit of all present and
future Certificateholders and, with respect to any original document in the
Mortgage File for each Loan Pair, for any present or future Companion Holder
(and for the benefit of the Trustee as holder of the Uncertificated Lower-Tier
Interests), as applicable.
(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, in the form attached as Exhibit W, certify in
writing to each of the Rating Agencies, the Depositor, the Servicer, the Special
Servicer, the Directing Certificateholder (and in the case of the Grace Building
Whole Loan, each of the Grace Building Companion Noteholders identified to the
Trustee by the Companion Paying Agent) and the Mortgage Loan Sellers that, as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full) and except as specifically identified in any exception report
annexed to such writing (the "Trustee Exception Report"), (i) all documents
specified in clauses (i) through (v), (ix) through (xii) and (xvi) (or, with
respect to clause (xvi), a copy of such letter of credit and an officer's
certificate as contemplated by the penultimate sentence of Section 2.01(b)
hereof), if any, of the definition of "Mortgage File," as applicable, are in its
possession, (ii) the foregoing documents delivered or caused to be delivered by
the Mortgage Loan Sellers have been reviewed by it or by a Custodian on its
behalf and appear regular on their face and appear to be executed and to relate
to such Mortgage Loan, and (iii) based on such examination and only as to the
foregoing documents, the information set forth in the Mortgage Loan Schedule
with respect to the items specified in clauses (iv), (vi) and (viii)(c) in the
definition of "Mortgage Loan Schedule" is correct. With respect to each Mortgage
Loan listed on the Trustee Exception Report, the Trustee shall specifically
identify such Mortgage Loan together with the nature of such exception (in the
form reasonably acceptable to the Trustee and the 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 recording and have not been returned by the recorder's office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall, in the
form attached as Exhibit W, certify in writing to each of the Depositor, the
Servicer, the Special Servicer, the Directing Certificateholder (and in the case
of the Grace Building Whole Loan, each of the Grace Building Companion
Noteholders) and the applicable Mortgage Loan Seller that, as to each Mortgage
Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan as to
which a Liquidation Event has occurred) or any Mortgage Loan specifically
identified in any exception report annexed to such writing (i) all documents
specified in clauses (i) through (v), (ix) through (xii) and (xvi) (or, with
respect to clause (xvi), a copy of such letter of credit and an officer's
certificate as contemplated by the penultimate sentence of Section 2.01(b)
hereof), if any, of the definition of "Mortgage File," as applicable, are in its
possession, (ii) the foregoing documents delivered or caused to be delivered by
the Mortgage Loan Sellers have been reviewed by it or by a Custodian on its
behalf and appear regular on their face and 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 (v), (viii), (ix) and (xi) in the
definition of "Mortgage File," resulting solely from a delay in the return of
the related documents from the applicable recording office, which deficiency (i)
is continuing for (a) in the case of any Mortgage Loan that is not a Specially
Serviced Mortgage Loan, more than eighteen (18) months following the Closing
Date or (b) in the case of any Specially Serviced Mortgage Loan, thirty (30)
days following a Servicing Transfer Event, and (ii) impairs or prohibits in any
material way the Servicer's or Special Servicer's ability to act upon, or
enforce, any of the Trust Fund's rights and remedies under the related Mortgage
Loan, or Specially Serviced Mortgage Loan, as applicable, at the time the
Servicer or Special Servicer attempts to act upon, or enforce, any such right or
remedy, the Directing Certificateholder, in its sole judgment, may permit the
related Mortgage Loan Seller, in lieu of repurchasing or substituting for the
related Mortgage Loan, to deposit with the Trustee an amount, to be held in
trust in a segregated Eligible Account, equal to 25% of the Stated Principal
Balance of the related Mortgage Loan (in the alternative, the related Mortgage
Loan Seller may deliver to the Trustee a letter of credit in such amount). Such
funds or letter of credit, as applicable, shall be held by the Trustee (i) until
the date on which the Servicer certifies to the Trustee that such document
deficiency has been cured or the related Mortgage Loan is no longer 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 3 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
shall be treated as an "outside reserve fund" under the REMIC Provisions, which,
together with any reimbursement from the Lower-Tier REMIC, is 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.
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii), (xiii), (xiv) and (xv)
through (xxvi) of the definition of "Mortgage File" exist or are required to be
delivered by the Depositor, the Mortgage Loan Sellers or any other Person
(unless identified on the Mortgage Loan checklist) or (ii) to inspect, review or
examine any of the documents, instruments, certificates or other papers relating
to the Mortgage Loans delivered to it to determine that the same are genuine,
enforceable, sufficient to perfect and maintain the perfection of a security
interest or appropriate for the represented purpose or that they are other than
what they purport to be on their face and, with respect to the documents
specified in clause (ix), whether the insurance is effective as of the date of
the recordation, whether all endorsements or riders issued are included in the
file or if the policy has not been issued whether any acceptable replacement
document has been dated the date of the related Mortgage Loan funding. Further,
with respect to the UCC financing statements referenced in the Mortgage File,
absent actual knowledge to the contrary or copies of UCC financing statements
delivered to the Trustee as part of the Mortgage File indicating otherwise, the
Trustee may assume, for the purposes of the filings and the certification to be
delivered in accordance with this Section 2.02 that the related Mortgage File
should include one state level UCC financing statement filing for each Mortgaged
Property (or with respect to any Mortgage Loan that has two or more Mortgagors,
for each Mortgagor), or if the Trustee has received notice that a particular UCC
financing statement was filed as a fixture filing, that the related Mortgage
File should include only a local UCC financing statement filing for each
Mortgaged Property (or with respect to any Mortgage Loan that has two or more
Mortgagors, for each Mortgagor). The assignments of the UCC's to be assigned to
the Trust will be delivered on the new national forms (or on such other form as
may be acceptable for filing in the applicable jurisdiction) and in recordable
format and will be filed in the jurisdiction(s) where such UCC financing
statements were originally filed, as indicated in the documents provided, and in
accordance with then current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed or
(2) subject to Section 2.01(b), not to have been delivered, (3) to contain
information that does not conform in any material respect with the corresponding
information set forth in the Mortgage Loan Schedule or (4) to be defective on
its face (each, a "Defect" in the related Mortgage File), the Trustee shall
promptly so notify the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder (and in the case of the Grace Building Whole Loan,
each of the Grace Building Companion Noteholders) 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 September 30, 2004 until
September 30, 2006, by providing a written report (the "Trustee Exception
Report") setting forth for each affected Mortgage Loan, with particularity, the
nature of such Defect (in a form reasonably acceptable to the Trustee and 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 or
the Trustee discovers (without implying any duty of such person to make, or to
attempt to make, such a discovery) or receives notice of a Defect in any
Mortgage File or a breach of any representation or warranty with respect to a
Mortgage Loan set forth in, or required to be made with respect to, a Mortgage
Loan by the applicable Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase Agreement (a "Breach"), which Defect or Breach, as the case may
be, materially and adversely affects the value of any Mortgage Loan, the related
Mortgaged Property or the interests of the Trustee or any Certificateholder
therein, such Certificateholder, the Servicer, the Special Servicer, the
Trustee, or the Directing Certificateholder, as applicable, shall give prompt
written notice of such Defect or Breach, as the case may be, to the Depositor,
the Servicer, the Special Servicer, the applicable Mortgage Loan Seller, the
Trustee and the Directing Certificateholder (and in the case of the Grace
Building Whole Loan, the Grace Building Companion Noteholders) and shall request
that the applicable Mortgage Loan Seller, not later than the earlier of 90 days
from the applicable Mortgage Loan Seller's receipt of such notice or the
applicable Mortgage Loan Seller's discovery of such Defect or Breach (the
"Initial Cure Period") that materially and adversely affects the value of any
Mortgage Loan, the related Mortgaged Property or the interests of the Trustee or
any Certificateholder therein, (i) cure such Defect or Breach, as the case may
be, in all material respects, (ii) repurchase the affected Mortgage Loan or REO
Loan at the applicable Purchase Price and in conformity with the applicable
Mortgage Loan Purchase Agreement and this Agreement or (iii) substitute a
Qualified Substitute Mortgage Loan (other than with respect to the Grace
Building 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 and this Agreement; provided, however, that if
such Breach or 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 Grace Building 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 Special 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
interest of Certificateholders therein, and such Mortgage Loan shall be
repurchased or substituted for without regard to the extended cure period
described in the preceding sentence. If the affected Mortgage Loan is to be
repurchased, the funds in the amount of the Purchase Price are to be deposited
by wire transfer in the Certificate Account. 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. Notwithstanding anything contained in this Agreement or the
related Mortgage Loan Purchase Agreement, no delay in either the discovery of a
Defect or Breach or delay on the part of any party to this Agreement in
providing notice of such Defect or Breach shall relieve the Mortgage Loan Seller
of its obligation to repurchase if it is otherwise required to do so under the
related Mortgage Loan Purchase Agreement and/or this Agreement.
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 intervening assignments required to create a complete chain
of assignment to the Trustee on behalf of the Trust, unless there is included in
the Mortgage File a certified copy of the intervening assignment and a
certificate stating that the original intervening assignments were sent for
recordation; (e) the absence from the Mortgage File of any required letter of
credit; or (f) with respect to any leasehold mortgage loan, the absence from the
related Mortgage File of the related Ground Lease; provided, however, that no
Defect (except the Defects previously described clauses (a) through (f)) 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 herein, 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 the 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 3 of the related Mortgage Loan Purchase Agreement, so as to
vest in such Mortgage Loan Seller the legal and beneficial ownership of such
repurchased or substituted for Mortgage Loan (including property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan documents.
(d) Section 6(e) of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders (subject to the
limitations on the rights of the Certificateholders under this Agreement), or
the Trustee on behalf of the Certificateholders, with respect to any Defect in a
Mortgage File or any Breach of any representation or warranty with respect to a
Mortgage Loan set forth in or required to be made pursuant to Section 6 of each
of the Mortgage Loan Purchase Agreements.
(e) The Special Servicer shall, for the benefit of the
Certificateholders and the Trustee (as holder of the Uncertificated Lower-Tier
Interests), enforce the obligations of the applicable Mortgage Loan Seller under
the applicable Mortgage Loan Purchase Agreement. Such enforcement, including,
without limitation, the legal prosecution of claims, shall be carried out in
such form, to such extent and at such time as the Special Servicer would require
were it, in its individual capacity, the owner of the affected Mortgage Loan(s).
The Special Servicer shall be reimbursed for the reasonable costs of such
enforcement: first, from a specific recovery of costs, expenses or attorneys'
fees against the applicable Mortgage Loan Seller; second, pursuant to Section
3.05(a)(vii) herein out of the related Purchase Price, to the extent that such
expenses are a specific component thereof; and third, if at the conclusion of
such enforcement action it is determined that the amounts described in clauses
first and second are insufficient, then pursuant to Section 3.05(a)(viii) herein
out of general collections on the Mortgage Loans on deposit in the Certificate
Account.
(f) 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 Fiscal Agent, 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
Fiscal Agent, 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, the Fiscal Agent 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 this Section, (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 applicable 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. 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 will, 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 the 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 Mortgage 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.
(i) Notwithstanding the foregoing, if the related Mortgage provides
for the partial release of one or more of the Crossed Loans, the Depositor may
cause the related Mortgage Loan Seller to repurchase only that Mortgage Loan
required to be repurchased pursuant to this Section 2.03, pursuant to the
partial release provisions of the related Mortgage; provided, however, that (i)
the remaining Mortgage Loan(s) fully comply with the terms and conditions of the
related Mortgage, this Agreement and the related Mortgage Loan Purchase
Agreement, including the Crossed Loan Repurchase Criteria, (ii) in connection
with such partial release, the related Mortgage Loan Seller obtains an Opinion
of Counsel (at such Mortgage Loan Seller's expense) to the effect that the
contemplated action will not, with respect to the Upper-Tier REMIC or the
Lower-Tier REMIC created hereunder, endanger such status or result in the
imposition of any tax and (iii) in connection with such partial release, the
related Mortgage Loan Seller delivers or causes to be delivered to the Custodian
original modifications to the Mortgage prepared and executed in connection with
such partial release.
(j) The Trustee is hereby authorized and directed to accept and to
receive any document (even if delivered by or at the direction of a Grace
Building Companion Noteholder) that cures a Document Defect relating to the
Grace Building Mortgage Loan or the absence of any document required to be
included in the Mortgage File for any loan that forms a part of the Grace
Building Whole Loan or the nonconformity of any document included in such a
Mortgage File with the requirements of the definition of "Mortgage File".
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 to the Depositor and (ii) acknowledges the authentication and delivery
of the Class LR Certificates (in respect of the residual interest in the
Lower-Tier REMIC) by the Trustee to or upon the order of the Depositor, in
exchange for the Mortgage Loans (other than Excess Interest), receipt of which
is hereby acknowledged, and (iii) immediately thereafter, the Trustee
acknowledges that it has caused the Certificate Registrar to execute and caused
the Authenticating Agent to authenticate and to deliver to or upon the order of
the Depositor, in exchange for the Uncertificated Lower-Tier Interests, the
Regular Certificates (other than the portion of the Class NR Certificates
evidencing the 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 Class NR Certificates,
exclusive of the portion thereof representing a "regular interest" in the
Upper-Tier REMIC, are hereby designated as undivided beneficial interests in the
portion of the Trust Fund consisting of Excess Interest and the Excess Interest
Distribution Account, which portion shall be treated as part of a grantor trust
within the meaning of subpart E, Part I of subchapter J of the Code.
[End of Article II]
Article III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans. (a)(i) The Servicer
shall service and administer the Mortgage Loans 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 Holder
and the Trustee (as holder of the Uncertificated Lower-Tier Interests) as a
collective whole, taking into account the subordinate or pari passu nature of
the Companion Loans, as the case may be (as determined by the 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 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
and other amounts due and payable under the Mortgage Loans or, if applicable,
the Companion Loans and the AB Mortgage Loan as a collective whole, taking into
account the subordination or pari passu nature of the Companion Loans, as
applicable, and without regard to: (1) any relationship that the Servicer or any
Affiliate of the Servicer may have with any Mortgagor; (2) the ownership of any
Certificate by the Servicer or any Affiliate of the Servicer; (3) the Servicer's
obligation to make Advances and (4) the adequacy of 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 Standards"). 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, in no event
shall the Servicer 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 Mezz Cap B Loan will remit payments on the
AB Mortgage Loan to the Servicer hereunder, and for each Mezz Cap B Loan that
has been securitized and for each Mezz Cap B Loan that is securitized in the
future, the related Mortgagor will remit payments on such Mezz Cap B Loans
directly to the servicer for such securitizations; provided, however, that under
the circumstances identified in the related Intercreditor Agreements, the
Mortgagor under each Mezz Cap B Loan (even after such Mezz Cap B Loan has been
securitized) will be required to remit payments on such Mezz Cap B Loan directly
to the Servicer under this Agreement.
(ii) The Special Servicer shall diligently service and administer
the Mortgage Loans and the Companion Loans it is obligated to service pursuant
to this Agreement on behalf of the Trust and in the best interests of and for
the benefit of the Certificateholders and, in the case of the Companion Loans,
the 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 Mortgage Loans, and, if applicable, the related
Companion Loan, taking into account the subordinate or pari passu nature of the
subject Companion Loans, as the case may be. With respect to each Loan Pair, 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 the
Special Servicer to violate the Special Servicer Servicing Standard. To the
extent consistent with the foregoing, the Special Servicer shall service the
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 recovery of principal and interest on a net present
value basis on the Mortgage Loans or Specially Serviced Mortgage Loans and any
related Companion Loan, as applicable, and the best interests of the Trust and
the Certificateholders (and in the case of AB Mortgage Loans, the holder of the
Regular Certificates or the related Companion Holder, as applicable, and, in the
case of the Grace Building Companion Notes, the Grace Building Companion
Noteholders (all as a collective whole) taking into account the subordinate or
pari passu nature of the subject Companion Loan, as applicable), as determined
by the Special Servicer in its reasonable judgment, but without regard to: (i)
any relationship that the Special Servicer or any Affiliate of the Special
Servicer may have with any Mortgagor or any Affiliate of such Mortgagor, any
Mortgage Loan Seller, or any other parties to this Agreement; (ii) the ownership
of any Certificate by the Special Servicer or any Affiliate of the Special
Servicer; (iii) the Special Servicer's right to receive compensation for its
services and reimbursement for its costs hereunder or with respect to any
particular transaction; (iv) the ownership, servicing or management for others
of any other mortgage loans or mortgaged properties by the Special Servicer; and
(v) any other debt the Special Servicer or any of its Affiliates have extended
to any Mortgagor or any of its known Affiliates (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 and
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 solely 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 Companion Loans, which are not Specially Serviced Mortgage
Loans. 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. After notification to
the Servicer, the Special Servicer may contact the Mortgagor of any
Non-Specially Serviced Mortgage Loan if efforts by the Servicer to collect
required financial information have been unsuccessful or any other issues remain
unresolved. Such contact shall be coordinated through and with the cooperation
of the Servicer. No provision herein contained shall be construed as an express
or implied guarantee by the Servicer or the Special Servicer of the
collectability or recoverability of payments on the Mortgage Loans or shall be
construed to impair or adversely affect any rights or benefits provided by this
Agreement to the Servicer or the Special Servicer (including with respect to
Servicing Fees, Special Servicing Fees or the right to be reimbursed for
Advances and interest accrued thereon). Any provision in this Agreement for any
Advance by the Servicer, the Special Servicer, the Trustee or the Fiscal Agent
is intended solely to provide liquidity for the benefit of the
Certificateholders and not as credit support or otherwise to impose on any such
Person the risk of loss with respect to one or more of the Mortgage Loans. No
provision hereof shall be construed to impose liability on the Servicer or the
Special Servicer for the reason that any recovery to the Certificateholders in
respect of a Mortgage Loan at any time after a determination of present value
recovery is less than the amount reflected in such determination.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and, if applicable, 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 Mortgage 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 in the name of the Trustee and, if applicable, the
Companion Holder), is hereby authorized and empowered by the Trustee to execute
and deliver, on behalf of the Certificateholders and the Trustee or any of them,
with respect to each Mortgage Loan (and, with respect to a Companion Loan, the
Companion Holder) it is obligated to service under this Agreement: (i) any and
all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien created by the related Mortgage or
other security document in the related Mortgage File on the related Mortgaged
Property and related collateral; (ii) subject to Section 3.20, any and all
modifications, waivers, amendments or consents to, under 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, and
that actually causes, the Trustee to be required 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 (or of Xxxxx'x) that
such action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates (or of any class of Grace Building
Companion Loan Securities), 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 (or of
Xxxxx'x) that an action will not result in the downgrade, withdrawal or
qualification of the ratings of any Class of Certificates (or of any Grace
Building Companion Loan Securities), 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, Companion Loan
documents are silent as to who bears the costs of any confirmation of the Rating
Agencies (or of Xxxxx'x) that an action will not result in the downgrade,
withdrawal or qualification of the ratings of any Class of Certificates (or of
any Grace Building Companion Loan Securities), 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 and Companion Loan documents and consistent with the
Servicing Standards, permit Escrow Payments to be invested only in Permitted
Investments.
(f) Within 60 days after the later of (i) the receipt thereof and
(ii) the Closing Date, the Servicer shall notify each provider of a letter of
credit for each Mortgage Loan identified as having a letter of credit on the
Mortgage Loan Schedule, that the Servicer or the Special Servicer on behalf of
the Trustee for the benefit of the Certificateholders shall be the beneficiary
under each such letter of credit and notify 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
nor 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 (or the Trustee or the Fiscal Agent, as applicable) make a
Servicing Advance with respect to (i) any Mezz Cap B Loan to the extent the
related AB Mortgage Loan has been paid in full or is no longer included in the
Trust Fund, and (ii) any Grace Building B Note to the extent the Grace Building
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) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the servicing and administration of the Grace
Building Companion Notes shall continue hereunder even if the Grace Building
Mortgage Loan is no longer part of the Trust Fund, until such time as a separate
servicing agreement is entered into in accordance with the Grace Building
Co-Lender Agreement (it being acknowledged that neither the Servicer nor the
Special Servicer shall be obligated under a separate agreement to which it is
not a party).
(j) 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
Grace Building Mortgage Loan are limited by and subject to the terms of the
Grace Building Co-Lender Agreement. The parties hereto further acknowledge and
agree that the terms and provisions of Schedule 5 hereto are incorporated herein
and made a part hereof. The Servicer (or, with respect to any Specially Serviced
Loan, the Special Servicer) shall use reasonable efforts consistent with the
Servicing Standards to enforce the rights of the Trust Fund (as holder of the
Grace Building Mortgage Loan) under the Grace Building Co-Lender Agreement.
Section 3.02 Collection of Mortgage Loan Payments. (a) Each of the
Servicer and the Special Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage Loans and
Companion Loans it is obligated to service hereunder, and shall follow such
collection procedures as are consistent with this Agreement (including, without
limitation, the Servicing Standards), provided that with respect to the Mortgage
Loans that have Anticipated Repayment Dates, so long as the related Mortgagor is
in compliance with each provision of the related Mortgage Loan documents, the
Servicer and the 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 may in its discretion waive any Penalty Charge (other
than a Penalty Charge payable with respect to a Grace Building Senior Companion
Loan without the consent of the holder of such Grace Building Senior Companion
Loan after the securitization of the Grace Building A-2 Note, the Grace Building
A-3 Note or the Grace Building A-4 Note) in connection with any delinquent
payment on a Mortgage Loan or Companion Loan it is obligated to service
hereunder three times during any period of twenty-four consecutive months with
respect to any Mortgage Loan or Companion Loan. Any additional waivers during
such 24-month period with respect to such Mortgage Loan may be made only after
the Servicer has given notice of a proposed waiver to the Directing
Certificateholder (and with respect to any Grace Building Senior Companion Note,
the related Grace Building Senior Companion Noteholder), and the Directing
Certificateholder (and with respect to any Grace Building Senior Companion Note,
the related Grace Building Senior Companion Noteholder) has consented to such
additional waiver (provided that if the Servicer fails to receive a response to
such notice from the Directing Certificateholder (and with respect to any Grace
Building Senior Companion Note, the related Grace Building Senior Companion
Noteholder) in writing within five (5) days of giving such notice, then the
Directing Certificateholder (and with respect to any Grace Building Senior
Companion Note, the related Grace Building Senior Companion Noteholder) 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,
such payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied (after reimbursement first to the Trustee
and/or to the Fiscal Agent, as applicable and second to the Servicer or Special
Servicer, as applicable, for any related outstanding Servicing Advances
(including Workout Delayed Reimbursement Amounts that have not been reimbursed
to the Servicer) and interest thereon as provided herein and unpaid servicing
compensation, Liquidation Expenses and related additional Trust Fund expenses):
first, as a recovery of accrued and unpaid interest on such Mortgage Loan or
Companion Loan, as applicable, at the related Mortgage Rate in effect from time
to time to but not including the Due Date in the Due Period of receipt; second,
as a recovery of a Workout Delayed Reimbursement Amount, third as a recovery of
principal of such Mortgage Loan then due and owing, 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" or "Loan Group 2 Principal Distribution Amount"; fourth, as
a recovery of Nonrecoverable Advances; fifth, in accordance with the Servicing
Standards, as a recovery of any other amounts due and owing on such Mortgage
Loan or Companion Loan, as applicable, including, without limitation, Penalty
Charges, Yield Maintenance Charges and Excess Interest; and sixth, 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 or 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(s), 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 or Companion Loan as if
such Insurance and Condemnation Proceeds were received on the Due Date
immediately succeeding the month in which such Insurance and Condemnation
Proceeds were received.
(d) In the event that the Servicer or Special Servicer receives
Excess Interest prior to the Determination Date for any Due Period, or receives
notice from the related Mortgagor that the Servicer or Special Servicer will be
receiving Excess Interest prior to the Determination Date for any Due Period,
the Servicer or Special Servicer, as applicable, will promptly notify the
Trustee. None of the Servicer, the Special Servicer or the Trustee shall be
responsible for any failure of the related Mortgagor to pay any such Excess
Interest. The preceding statements shall not, however, be construed to limit the
provisions of Section 3.02(a).
(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.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts. (a) The Servicer shall establish and maintain one or more
accounts (the "Servicing Accounts"), into which all Escrow Payments shall be
deposited and retained, and shall administer such Servicing Accounts in
accordance with the Mortgage Loan documents and Companion Loan documents. Any
Servicing Accounts related to the Grace Building Whole Loan shall be held for
the benefit of the Certificateholders and the Grace Building Companion
Noteholders, but this shall not be construed to modify their respective
interests therein as set forth in the Grace Building Co-Lender Agreement.
Amounts on deposit in Servicing Accounts may only be invested in accordance with
the terms of the related Mortgage Loan documents or in Permitted Investments in
accordance with the provisions of Section 3.06. Servicing Accounts shall be
Eligible Accounts. Withdrawals of amounts so deposited from a Servicing Account
may be made only to: (i) effect payment of items for which Escrow Payments were
collected and comparable items; (ii) reimburse the Trustee and/or the Fiscal
Agent, 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) after the
occurrence of an event of default under the related Mortgage Loan or Companion
Loan, apply amounts to the indebtedness under the applicable Mortgage Loan or
Companion Loan; (vi) withdraw amounts deposited in error; 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 or Companion Loan; provided, however, that in no event shall the Servicer
be required to remit to any Mortgagor any amounts in excess of actual net
investment income or funds in the related Servicing Account. If allowed by the
related Mortgage Loan documents and applicable law, the Servicer may charge the
related Mortgagor an administrative fee for maintenance of the Servicing
Accounts.
(b) The Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage Loans (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, and the Servicer, in the case of all other Mortgage Loans and
Companion Loans, 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 REO
Account or by the Servicer as Servicing Advances prior to the applicable penalty
or termination date and, in any event, prior to the institution of foreclosure
or similar proceedings with respect to the related Mortgaged Property for
nonpayment of such items, employing for such purpose Escrow Payments (which
shall be so applied by the Servicer at the written direction of the Special
Servicer in the case of REO Loans) as allowed under the terms of the related
Mortgage Loan or Companion Loan. The Servicer 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 (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 Special Servicer, in the case of REO Loans, and the Servicer, in the case of
all other Mortgage Loans and Companion Loans, shall use reasonable efforts
consistent with the Servicing Standards to cause the Mortgagor to comply with
its obligation to 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 and Loan Pairs, the Servicer or, with respect to Specially Serviced
Mortgage Loans, the Special Servicer (but only in the case of emergency advances
as specified below) shall advance all such funds as are necessary for the
purpose of effecting the payment of (i) real estate taxes, assessments and other
similar items that are or may become a lien thereon, (ii) ground rents (if
applicable) and (iii) premiums on Insurance Policies, in each instance if and to
the extent Escrow Payments collected from the related Mortgagor (or related REO
Revenues, if applicable) are insufficient to pay such item when due and the
related Mortgagor has failed to pay such item on a timely basis, and provided,
however, that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance and provided, further, however, that with
respect to the payment of taxes and assessments, the Servicer shall not be
required to make such advance until the later of five Business Days after the
Servicer, the Special Servicer or the Trustee, as applicable, has received
confirmation that such item has not been paid or the date prior to the date
after which any penalty or interest would accrue in respect of such taxes or
assessments. The Special Servicer shall give the Servicer, the Trustee and the
Fiscal Agent 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 Specially Serviced 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, which reimbursement shall constitute a Servicing Advance by the
Servicer in a like amount with respect to each related Mortgaged Property
(including any REO Property). 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, the
Trustee and the Fiscal Agent with such information in its possession as the
Servicer, the Trustee or the Fiscal Agent, as applicable, may reasonably request
to enable the Servicer, the Trustee or the Fiscal Agent, 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, Trustee or Fiscal Agent. 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, and such determination
shall be binding upon the Servicer. All such Advances shall be reimbursable in
the first instance from related collections from the Mortgagors and further as
provided in Section 3.05. No costs incurred by the Servicer or the Special
Servicer in effecting the payment of real estate taxes, assessments and, if
applicable, ground rents on or in respect of the Mortgaged Properties shall, for
purposes hereof, including, without limitation, the Trustee's calculation of
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. If the
Servicer fails to make any required Servicing Advance as and when due (including
any applicable cure periods), to the extent the Trustee has actual knowledge of
such failure, the Trustee shall make such Servicing Advance pursuant to Section
7.05. If the Trustee fails to make any required Servicing Advance as and when
due (including any applicable cure periods), to the extent the Fiscal Agent has
actual knowledge of such failure, the Fiscal Agent 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 payment from amounts on deposit in the Certificate Account
(which shall be deemed first made from amounts distributable as principal and
then from all other amounts comprising general collections) to pay for certain
expenses set forth below notwithstanding that the Servicer has determined that a
Servicing Advance with respect to such expenditure would be a Nonrecoverable
Servicing Advance (unless, with respect to Specially Serviced Mortgage Loans or
REO Loans, the Special Servicer has notified the Servicer to not make such
expenditure), where making such expenditure 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 expenditure is in the best interest of the Certificateholders
(and, if applicable the Companion Holders), all as a collective whole. The
Servicer, Trustee or Fiscal Agent may elect to obtain reimbursement of
Nonrecoverable Servicing Advances from the Trust Fund pursuant to the terms of
3.19(c). With respect to Specially Serviced Mortgage Loans and REO Loans, the
Special Servicer shall make the foregoing determination as appropriate and the
Servicer, Trustee or Fiscal Agent may rely on such determinations provided that
such determination shall not be binding upon the Servicer.
(d) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a), the Trustee and/or the
Fiscal Agent, as applicable, and then the Servicer and the Special Servicer, as
the case may be, shall be entitled to receive, out of any amounts then on
deposit in the Certificate Account interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of such Servicing Advance from the date
made to, but not including, the date of reimbursement. The Servicer shall
reimburse itself or the Trustee and/or the Fiscal Agent, as the case may be, for
any outstanding Servicing Advance as soon as practically possible after funds
available for such purpose are deposited in the Certificate Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Mortgage Loan, the Servicer shall request
from the Mortgagor written confirmation of such actions and remediations within
a reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required to be or to have been taken or
completed. To the extent a Mortgagor shall fail to promptly respond to any
inquiry described in this Section 3.03(e), the Servicer shall report any such
failure to the Special Servicer within a reasonable time after December 15,
2004.
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution Account, the Gain-on-Sale
Reserve Account and the Excess Interest Distribution Account. (a) The Servicer
shall establish and maintain, or cause to be established and maintained, a
Certificate Account in which the Servicer shall deposit or cause to be deposited
on a daily basis and in no event later than the Business Day following receipt
of available funds (in the case of payments by Mortgagors or other collections
on the Mortgage Loans or Companion Loans), except as otherwise specifically
provided herein, the following payments and collections received or made by or
on behalf of it subsequent to the Cut-off Date (other than in respect of
principal and interest on the Mortgage Loans or Companion Loans due and payable
on or before the Cut-off Date, which payments shall be delivered promptly to the
appropriate Mortgage Loan Seller or its designee and other than any amounts
received from Mortgagors which are received in connection with the purchase of
defeasance collateral), or payments (other than Principal Prepayments) received
by it on or prior to the Cut-off Date but allocable to a period subsequent
thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans or Companion Loans;
(ii) all payments on account of interest on the Mortgage Loans or
Companion Loans, including Excess Interest, Yield Maintenance Charges and
Default Interest;
(iii) late payment charges and other Penalty Charges to the extent
required to offset interest on Advances and additional Trust Fund expenses
(other than Special Servicing Fees, Workout Fees or Liquidation Fees) as
required by Section 3.11;
(iv) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of any
Mortgage Loan, Companion Loan or REO Property (other than (i) Liquidation
Proceeds that are received in connection with the purchase by the
Servicer, the Special Servicer, the Holders of the Controlling Class, or
the Holders of the Class LR Certificates of all the Mortgage Loans and any
REO Properties in the Trust Fund and that are to be deposited in the
Lower-Tier Distribution Account pursuant to Section 9.01 and (ii)
Liquidation Proceeds that are received in connection with the purchase of
a Companion Loan from a securitization by the related mortgage loan
seller, which shall be paid directly to the servicer of such
securitization) 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; and
(vii) any amounts required to be deposited by the Servicer or the
Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard or master single
interest policy.
Notwithstanding the foregoing requirements, the Servicer need not
deposit into the Certificate Account any amount that the Servicer would be
authorized to withdraw immediately from such account in accordance with the
terms of Section 3.05 and shall be entitled to instead immediately pay such
amount directly to the Person(s) entitled thereto.
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, defeasance 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)-(iv)
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 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) shall maintain, as part of
the Certificate Account, a subaccount for each Companion Loan on behalf of and
in trust for the benefit of the related Companion Holder into which subaccount
the Servicer shall deposit or cause to be deposited all amounts 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. Each such subaccount shall
be an Eligible Account and shall be entitled, with respect to the respective
Companion Loans "GMAC Commercial Mortgage Corporation, as Servicer, on behalf of
the "[related Companion Holder]."
Funds in the Certificate Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. As of the Closing
Date, the Certificate Account shall be located at Escrow Bank in Salt Lake City,
Utah. The Servicer shall give notice to the Trustee, the Special Servicer and
the Depositor of the new location of the Certificate Account prior to any change
thereof.
(b) The Trustee (as holder of the 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). With respect to the Companion Loans, the
Companion Paying Agent shall establish and maintain an account for distributions
to each Companion Holder (the "Companion Distribution Account") to be held for
the benefit of the related Companion Holder. The Servicer shall deliver to the
Trustee 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 clauses (a)(iv), (a)(vii) and (c) and (d) of the definition of
Available Distribution Amount) for the related Distribution Date then on deposit
in the Certificate Account.
The Servicer shall deliver to the Companion Paying Agent each month
with respect to the Mezz Cap B Loans on the date specified in the related
Intercreditor Agreement and, with respect to the Grace Building Companion Notes,
on or before the Grace Building Remittance Date (prior to the time distributions
are to be made to the Grace Building Companion Holders on such date), for
deposit in the Companion Distribution Account, an aggregate amount of
immediately available funds actually received by the Servicer equal to the
amount available to be distributed to the related Companion Holder pursuant to
the related Intercreditor Agreement and Section 4.01(j) or, if the Servicer is
the Companion Paying Agent, the Servicer shall pay such amounts to the related
Companion Holder, notwithstanding Section 3.05(a)(i).
Notwithstanding the preceding paragraph, the following provisions
shall apply to remittances relating to the Grace Building Companion Notes.
Monthly on the Grace Building Remittance Date, the Servicer shall withdraw from
the Certificate Account (or applicable portion thereof) an aggregate amount
equal to all payments and/or collections actually received on such Grace
Building Companion Notes on or prior to such Due Date and (except in the case of
the first such remittance) after the Due Date occurring in the prior month;
provided, however, that in no event shall the Servicer be required to transfer
to the Companion Distribution Account any portion thereof that is payable or
reimbursable to or at the direction of any party to this Agreement under the
other provisions of this Agreement and/or the Grace Building Co-Lender
Agreement. In each such month, the Companion Paying Agent shall make the
payments and remittance described in Section 4.01(j) of this Agreement, which
payments and remittance shall be made, in each case, on or before the Grace
Building Remittance Date.
If, as of the close of business (New York City time), on any Grace
Building Remittance Date, the Servicer shall not have delivered to the related
Companion Noteholder the amounts required to be remitted thereto pursuant to the
provisions of this Agreement, the Servicer shall pay the related Companion
Noteholder interest on such late payment at the Prime Rate from and including
the date such payment was required to be made (without regard to any grace
period) until (but not including) the date such late payment is received by the
related Companion Noteholder.
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 Eligible
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 third preceding paragraph, the
Servicer shall, as and when required hereunder, deliver to the Trustee for
deposit in the Lower-Tier Distribution Account:
(i) any amounts required to be deposited by the Servicer pursuant to
Section 3.19 in connection with Prepayment Interest Shortfalls;
(ii) any P&I Advances required to be made by the Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by the Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class
LR Certificates in connection with the purchase of all of the Mortgage
Loans and any REO Properties in the Trust Fund pursuant to Section 9.01
(exclusive of that portion thereof required to be deposited in the
Certificate Account pursuant to Section 9.01);
(iv) any Yield Maintenance Charges actually collected; and
(v) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account 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 Trustee 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 Trustee interest on such late payment at the Prime Rate from and
including the date such payment was required to be made (without regard to any
grace period) until (but not including) the date such late payment is received
by the Trustee.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account or the Excess Interest Distribution Account any and all
amounts received by the Trustee that are required by the terms of this Agreement
to be deposited therein.
Promptly on each Distribution Date, the Trustee shall be deemed to
withdraw from the Lower-Tier Distribution Account and deposit in the Upper-Tier
Distribution Account an aggregate amount of immediately available funds equal to
the Lower-Tier 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, the Excess Interest Distribution Account, the Upper-Tier
Distribution Account and the Lower-Tier Distribution Account shall remain
uninvested. As of the Closing Date, the Gain-on-Sale Reserve Account, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Upper-Tier Distribution Account and the Lower-Tier Distribution Account shall be
located at the offices of the Trustee. The Trustee shall give notice to the
Servicer and the Depositor of the location of the Interest Reserve Account, the
Upper-Tier Distribution Account, the Lower-Tier Distribution Account and, if
established, the Gain-on-Sale Reserve Account and the Excess Interest
Distribution Account, and of the new location of the Distribution Accounts, the
Interest Reserve Account and the Gain-on-Sale Reserve Account prior to any
change thereof.
(c) Prior to any Determination Date for the first Due Period during
which Excess Interest is received on any Mortgage Loan, and upon notification
from the Servicer or Special Servicer pursuant to Section 3.02(d), the Trustee,
on behalf of the Certificateholders, shall establish and maintain the Excess
Interest Distribution Account in the name of the Trustee in trust for the
benefit of the Class NR Certificateholders. The Excess Interest Distribution
Account shall be established and maintained as an Eligible Account (or as a
subaccount of an Eligible Account). Prior to the applicable Distribution Date,
the Servicer shall remit to the Trustee for deposit in the Excess Interest
Distribution Account an amount equal to the Excess Interest received prior to
the Determination Date for the applicable Due Period.
Following the distribution of Excess Interest to Class NR
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Trustee shall terminate the Excess Interest Distribution
Account.
(d) The Trustee shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as an
Eligible Account (or as a subaccount of an Eligible Account), separate and apart
from trust funds for mortgage pass-through certificates of other series
administered by the Trustee.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Trustee for deposit into the Gain-on-Sale Reserve Account.
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:
(i) (A) no later than 4:00 p.m. New York City time on each P&I
Advance Date, to remit to the Trustee 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) and (B) pursuant to the second paragraph of
Section 3.04b to remit to the Companion Paying Agent for deposit in the
Companion Distribution Account the amounts required to be so deposited on
(1) the date specified in the related Intercreditor Agreement with respect
to the Mezz Cap B Loans or (2) on or before the Grace Building Remittance
Date with respect to the Grace Building Companion Notes.
(ii) (A) to pay 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 and (B) to pay the Special Servicer any unpaid Special
Servicing Fees, Liquidation Fees and Workout Fees in respect of each
Specially Serviced Loan or REO Loan or Corrected Mortgage Loan, as
applicable, and any expense 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 (provided that with respect to
the Grace Building Whole Loan, such expenses shall be reimbursed as among
the Grace Building B Notes and Grace Building Senior Notes in the priority
and subject to the limitations set forth in the Grace Building Co-Lender
Agreement);
(iii) (A) to reimburse the Fiscal Agent and/or the Trustee and
itself, as applicable (in that order), for xxxxxxxxxxxx X&X Advances, the
Servicer's, the Trustee's or the Fiscal Agent's right to reimbursement
pursuant to this clause (iii) being limited to amounts received which
represent Late Collections of interest 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 the Section 3.05 (a)) (provided that with respect to the
Grace Building Mortgage Loan, reimbursement of P&I Advances shall be made
only from amounts collected, first, from the Grace Building B Notes (to
the extent permitted under the Grace Building Co-Lender Agreement), and
second, from the Grace Building Mortgage Loan); and (B) to reimburse any
servicing party for a Related Securitization Trust in respect of a Grace
Building Senior Companion Loan for any unreimbursed principal and interest
advances comparable to P&I Advances, such reimbursement to be made from
amounts collected with respect to the Grace Building B Notes (provided
that the services have received written notice with regard to the amount
of such advances from any such servicing party and the Servicer shall be
entitled to rely on such written notice);
(iv) to reimburse the Fiscal Agent and/or the Trustee and itself, as
applicable (in that order), for unreimbursed Servicing Advances, the
Servicer's, the Special Servicer's, the Trustee's or the Fiscal Agent's
respective rights to receive payment pursuant to this clause (iv) with
respect to any 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
apply and/or relate only to Nonrecoverable Servicing Advances and 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; and provided that, in case of such reimbursement
relating to the Grace Building Whole Loan, such reimbursements shall be
made from amounts collected on the Grace Building B Notes, pro rata, as
among such Grace Building B Notes, and then from the amounts collected on
the Grace Building Senior Notes, pro rata, as among such Grace Building
Senior Notes, in accordance with the terms of the related Grace Building
Co-Lender Agreement prior to reimbursement from other funds on deposit in
the Certificate Account); 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 the Section 3.05(a));
(v) (A) to reimburse the Fiscal Agent and/or the Trustee and itself,
as applicable (in that order) (1) for Nonrecoverable Advances first, out
of REO Revenues, Liquidation Proceeds and Insurance and Condemnation
Proceeds received on the related Mortgage Loan and Companion Loan (only
for Nonrecoverable Servicing Advances), 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(c), out of other collections on the Mortgage
Loans and REO Properties and, (2) 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 the Section
3.05 (a)), net of such amounts being reimbursed pursuant to (1) 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; and
provided that, in case of such reimbursement relating to the Grace
Building Whole Loan, such reimbursements shall be made only with respect
to Nonrecoverable Servicing Advances and from amounts collected on the
Grace Building B Notes, pro rata, as among such Grace Building B Notes,
and then from the amounts collected on the Grace Building Senior Notes,
pro rata as among such Grace Building Senior Notes (provided further that
with respect to the Grace Building Mortgage Loan, reimbursement of P&I
Advances from funds collected from the Grace Building Whole Loan shall be
made only from amounts collected, first, from the Grace Building B Notes
(to the extent permitted under the Grace Building Co-Lender Agreement),
and second, from the Grace Building Mortgage Loan), in accordance with the
terms of the Grace Building Co-Lender Agreement prior to reimbursement
from other funds on deposit in the Certificate Account) and REO Properties
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; and (B) to reimburse any servicing party
for a Related Securitization Trust in respect of a Grace Building Senior
Companion Loan for any nonrecoverable principal and interest advances
comparable to Nonrecoverable P&I Advances, such reimbursement to be made
from amounts collected with respect to the Grace Building B Notes
(provided that the Servicer has received written notice with regard to the
amount of such advances from any such servicing party and the Servicer
shall be entitled to rely on such written notice);
(vi) at such time as it reimburses the Fiscal Agent and/or the
Trustee and itself, as applicable (in that order) or any servicing party
for a Related Securitization Trust in respect of a Grace Building Senior
Companion Loan, 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 Fiscal Agent and/or
the Trustee or such other servicing party, 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 or the
Fiscal Agent 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 or the Fiscal Agent and/or the Trustee or such other
servicing party, as the case may be, any interest accrued and payable
thereon; provided that in all events interest on P&I Advances on any Grace
Building Senior Note shall not be paid from funds allocable to any other
Grace Building Senior Note;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect giving rise to a repurchase or
substitution obligation of the applicable Mortgage Loan Seller under
Section 3 of the applicable Mortgage Loan Purchase Agreement, including,
without limitation, any expenses arising out of the enforcement of the
repurchase or substitution obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan or Mezz Cap B Loan being limited to that portion of the Purchase
Price or Substitution Shortfall Amount paid with respect to such Mortgage
Loan or Mezz Cap B Loan that represents such expense in accordance with
clause (iv) of the definition of Purchase Price;
(viii) in accordance with Section 2.03(e), to reimburse itself or
the Special Servicer, as the case may be, first, out of Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties for any unreimbursed
expense reasonably incurred by such Person in connection with the
enforcement of the applicable Mortgage Loan Seller's obligations under
Section 3 of the applicable Mortgage Loan Purchase Agreement, but only to
the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise (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 Mezz Cap B Loan and then from the
related Mortgage Loan in accordance with the terms of the related
Intercreditor Agreement) except that in the case of the Grace Building
Mortgage Loan, such amounts shall be reimbursed only from amounts payable
with respect to the Grace Building Mortgage Loan in accordance with the
Grace Building Co-Lender Agreement and not from any of the related Grace
Building Companion Notes;
(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 (other than Penalty
Charges collected while the related Mortgage Loan is a Specially Serviced
Mortgage Loan), but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Mortgage Loan have been paid and such Penalty
Charges are not needed to pay interest on Advances or costs and expenses
incurred by the Trust Fund (other than Special Servicing Fees) in
accordance with Section 3.11(a); and (b) to pay the Special Servicer, as
additional servicing compensation in accordance with the second paragraph
of Section 3.11(b), Penalty Charges collected on Specially Serviced
Mortgage Loans (but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Specially Serviced Mortgage Loan have been paid and
such Penalty Charges are not needed to pay interest on Advances or costs
and expenses incurred by the Trust Fund in accordance with Section
3.11(c));
(xi) to recoup any amounts deposited in the Certificate Account in
error;
(xii) to pay itself out of general collections, 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 or the Trustee is
liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Trustee out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay itself, the Special Servicer or the Mortgage Loan
Sellers, as the case may be, with respect to each Mortgage Loan, if any,
previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase relating to
periods after the date of purchase; 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 Trustee for deposit in the Interest Reserve
Account the amounts required to be deposited in the Interest Reserve
Account pursuant to Section 3.26;
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01;
(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); and
(xx) to pay for any expenditures to be borne by the Trust Fund
pursuant to the second paragraph of Section 3.03(c).
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 Trustee from
the Certificate Account amounts permitted to be paid to it therefrom monthly
upon receipt of a certificate of a Servicing Officer of the Special Servicer or
a Responsible Officer of the Trustee describing the item and amount to which the
Special Servicer or the Trustee is entitled. The Servicer may rely conclusively
on any such certificate and shall have no duty to re-calculate the amounts
stated therein. The Special Servicer shall keep and maintain separate accounting
for each Specially Serviced Mortgage Loan and REO Loan, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account. 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 collection
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 required under Section 4.01(a)(i) of this Agreement.
(b) 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) [RESERVED];
(iii) [RESERVED];
(iv) to pay to the Trustee and the Fiscal Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person, with respect to the Mortgage
Loans, pursuant to Section 8.05(b);
(v) to pay the Trustee the Trustee Fee as contemplated by Section
8.05(a) hereof with respect to the Mortgage Loans;
(vi) to pay for the cost of the Opinions of Counsel sought by the
Trustee (A) as provided in clause (v) of the definition of "Disqualified
Organization," (B) as contemplated by Section 3.20(d), 8.02(ii) and
10.01(f), or (C) as contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the Trustee,
which amendment is in furtherance of the rights and interests of
Certificateholders, in each case, to the extent not paid pursuant to
Section 11.01(g);
(vii) to pay any and all federal, state and local taxes imposed on
either the Lower-Tier REMIC or Upper-Tier REMIC or on the assets or
transactions of any such REMIC, together with all incidental costs and
expenses, to the extent none of the Trustee, the REMIC Administrator, the
Servicer or the Special Servicer is liable therefor pursuant to Section
10.01(g);
(viii) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(e);
(ix) to pay to the Servicer any amounts deposited by the Servicer in
the Distribution Account not required to be deposited therein; and
(x) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Trustee shall, on any Distribution Date, make withdrawals
from the Excess Interest Distribution Account to the extent required to make the
distributions of Excess Interest required by Section 4.01(i).
(d) The Trustee may make withdrawals from the Upper-Tier
Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class LR Certificates) on each Distribution Date pursuant to
Section 4.01 or 9.01, as applicable;
(ii) [RESERVED]; and
(iii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(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 listed in
Section 3.05(b)(iv) and 3.05(c)(v), then the Trustee Fee shall be paid in full
prior to the payment of any Servicing Fees payable under Section 3.05(a)(ii) and
in the event that amounts on deposit in the Certificate Account and the Lower
Tier Distribution Account are not sufficient to pay the full amount of such
Trustee Fee, the Trustee shall be paid based on the amount of such fees 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
Fiscal Agent; second to the Trustee and third 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(m).
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"), 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 any Servicing Account maintained by or for
the Servicer) or the Special Servicer (in the case of the REO Account or any
Servicing Account maintained by or for the Special Servicer), on behalf of the
Trustee, shall maintain continuous physical possession of any Permitted
Investment of amounts in the Certificate Account, the Servicing Accounts or REO
Account, as applicable, that is either (i) a "certificated security," as such
term is defined in the UCC (such that the Trustee shall have control pursuant to
Section 8-106 of the UCC) or (ii) other property in which a secured party may
perfect its security interest by physical possession under the UCC or any other
applicable law. In the case of any Permitted Investment held in the form of a
"security entitlement" (within the meaning of Section 8-102(a)(17) of the UCC),
the Servicer or the Special Servicer, as applicable, shall take or cause to be
taken such action as the Trustee deems reasonably necessary to cause the Trustee
to have control over such security entitlement. In the event amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Servicer (in the case of the Certificate Account, or any
Servicing Account maintained by or for the Servicer), the Special Servicer (in
the case of the REO Account or any Servicing Account maintained by or for the
Special Servicer 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 maintained by or for the
Servicer, to the extent of the Net Investment Earnings, if any, with respect to
such account for the period from the prior P&I Advance Date to the P&I Advance
Date related to such Distribution Date, shall be for the sole and exclusive
benefit of the Servicer to the extent not required to be paid to the related
Mortgagor and shall be subject to its withdrawal, or withdrawal at its
direction, in accordance with Sections 3.03 or Section 3.05(a), as the case may
be. Interest and investment income realized on funds deposited in the REO
Account or any Servicing Account maintained by or for the Special Servicer, to
the extent of the Net Investment Earnings, if any, with respect to such account
for each period from any Distribution Date to the immediately succeeding P&I
Advance Date, shall be for the sole and exclusive benefit of the Special
Servicer and shall be subject to its withdrawal in accordance with Section
3.16(c). In the event that any loss shall be incurred in respect of any
Permitted Investment directed to be made by the Servicer or Special Servicer, as
applicable, and on deposit in any of the Certificate Account, the Servicing
Account or the REO Account, the Servicer (in the case of the Certificate Account
or any Servicing Account maintained by or for the Servicer) and the Special
Servicer (in the case of the REO Account or any Servicing Account maintained by
or for the Special Servicer) 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 (and, with respect to the Servicer, such federal or state
chartered depository institution or trust company is not an Affiliate of the
Servicer unless such depository institution or trust company satisfied the
qualification set forth in the definition of Eligible Account both (x) at the
time the investment was made and (y) 30 days prior to such insolvency).
(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 or the Special Servicer, as applicable,
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 and Companion Loan all insurance coverage as is required
under the related Mortgage and only in the event the Trustee has an insurable
interest therein and such insurance is available to the Servicer or the Special
Servicer, as applicable, and, if available, can be obtained at commercially
reasonable rates, 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 or the
Special Servicer, as applicable, shall impose such insurance requirements as are
consistent with the Servicing Standards, provided that, with respect to the
immediately preceding proviso, the Servicer or the Special Servicer, as
applicable, 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 and only in the event the Trustee has an insurable
interest therein and such insurance is available to the Servicer or the Special
Servicer, as applicable, and, if available, can be obtained at commercially
reasonable rates. 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 and Companion Loan.
All Insurance Policies maintained by the Servicer or the Special Servicer shall
(i) contain a "standard" mortgagee clause, with loss payable to the Servicer on
behalf of the Trustee (in the case of insurance maintained in respect of
Mortgage Loans and Companion Loans other than REO Properties) or to the Special
Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of 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,
Companion 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 and Companion 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 and Companion 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 and Companion 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. The
foregoing provisions of this paragraph shall apply to the Grace Building Whole
Loan as if it were a single "Mortgage Loan".
Notwithstanding the foregoing, with respect to the Mortgage Loans or
the Grace Building Whole Loan (as applicable) that 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 or the Grace Building Whole Loan reasonably
requires from time to time in order to protect its interests, the Servicer will
be required to (A) actively monitor whether the insurance policies for the
related Mortgaged Property contain Additional Exclusions, (B) request the
Mortgagor to either purchase insurance against the risks specified in the
Additional Exclusions or provide an explanation as to its reasons for failing to
purchase such insurance and (C) notify the Special Servicer if any insurance
policy contains Additional Exclusions or if any borrower fails to purchase the
insurance requested to be purchased by the Servicer pursuant to clause (B)
above. If the Special Servicer determines in accordance with the Servicing
Standards 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 (i) have one of
the ten (10) highest outstanding Stated Principal Balances of all of the
Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the
outstanding Stated Principal Balance of the Mortgage Loans then included in the
Trust. During the period that the Special Servicer is evaluating the
availability of such insurance, the Servicer will not be liable for any loss
related to its failure to require the Mortgagor to maintain such insurance and
will not be in default of its obligations as a result of such failure and the
Servicer will not itself maintain such insurance or cause such insurance to be
maintained.
(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, including the Grace
Building Whole Loan, 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, including the Grace Building Whole 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, including the Grace Building Whole 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 least "A" by S&P and "A" by Fitch (and,
insofar as any class of Grace Building Companion Loan Securities is then rated
by Xxxxx'x, "Baa3" by Xxxxx'x), 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. Such amount of
coverage shall be in such form and amount as are consistent with the Servicing
Standards. 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 is 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 or Companion 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 or Companion 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 or Companion Loan which contains a
provision in the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan or Companion 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 equity
interests in the Mortgagor or principals of the Mortgagor; or
(ii) provides that such Mortgage Loan or Companion 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 or Companion 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 10 Business Days after receipt by the Special Servicer from the Servicer
of the Servicer's analysis and recommendation with respect to such waiver
together with such other information reasonably required by the Special
Servicer, (ii) with respect to all Specially Serviced Mortgage Loans and
Non-Specially Serviced Mortgage Loans having a Stated Principal Balance greater
than or equal to $2,500,000, the Special Servicer shall, prior to consenting to
such a proposed action of the Servicer, obtain, and, prior to itself taking such
an action, the Special Servicer shall obtain, the prior written consent of the
Directing Certificateholder, which consent shall be deemed given 10 Business
Days after receipt by the Directing Certificateholder of the Servicer's or
Special Servicer's, as applicable, analysis and recommendation with respect to
such waiver together with such other information reasonably required by the
Directing Certificateholder, and (iii) with respect to any Mortgage Loan (x)
with a Stated Principal Balance greater than or equal to $20,000,000, (y) with a
Stated Principal Balance greater than 5% of the aggregate Stated Principal
Balance of all the Mortgage Loans then outstanding or (z) together with any
other Mortgage Loans cross-collateralized with such Mortgage Loan, or together
with all other Mortgage Loans with the same or an affiliated Mortgagor, is one
of the ten largest of the then outstanding Mortgage Loans, by Stated Principal
Balance, the Servicer or the Special Servicer, as the case may be, shall not
take such action unless it has obtained confirmation from each Rating Agency
stating that none of the then-current rating or ratings of all outstanding
Classes of the Certificates and, if applicable, of the Grace Building Companion
Loan Securities would be qualified, downgraded or withdrawn by such Rating
Agency, as a result of such waiver) any right it may have with respect to such
Mortgage Loan or Companion Loan (x) to accelerate the payments thereon or (y) to
withhold its consent to the sale or transfer.
(b) As to each Mortgage Loan and Companion Loan which contains a
provision in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan and Companion 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 equity interests in the Mortgagor or principals of the Mortgagor; 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 and Companion 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) (a)
with respect to all Non-Specially Serviced Mortgage Loans, the Servicer has made
a recommendation and obtained the consent of the Special Servicer, which consent
shall be deemed given ten (10) Business Days after receipt by the Special
Servicer from the Servicer of the Servicer's analysis and recommendation with
respect to such waiver together with such other information reasonably required
by the Special Servicer and (b) the Servicer or the Special Servicer, as the
case may be, has obtained (i) the prior written consent of the Directing
Certificateholder, which consent shall be deemed given 10 Business Days after
receipt by the Directing Certificateholder of the Servicer's and/or Special
Servicer's, as applicable, analysis and recommendation with respect to such
waiver together with such other information reasonably required by the Directing
Certificateholder, and (ii) from each Rating Agency a confirmation that such
waiver would not result in the downgrade, withdrawal or qualification of the
then-current ratings on any Class of outstanding Certificates or any class of
Grace Building Companion Loan Securities if such Mortgage Loan (1) has an
outstanding principal balance (together with any Mortgage Loans
cross-collateralized with such Mortgage Loan) that is greater than or equal to
2% of the Stated Principal Balance of the outstanding Mortgage Loans or (2) has
an LTV Ratio (including existing and proposed debt) greater than 85% (including
any proposed debt) or (3) a Debt Service Coverage Ratio less than 1.20x (in each
case, determined based upon the aggregate of the Stated Principal Balance of the
Mortgage Loan and the principal amount of the proposed additional loan) or (4)
is one of the ten (10) largest Mortgage Loans (by Stated Principal Balance) or
(5) has a Stated Principal Balance over $20,000,000) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon or (y) to
withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standards.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(f),
neither the Servicer nor the Special Servicer shall agree to modify, waive or
amend any term of any Mortgage Loan in connection with the taking of, or the
failure to take, any action pursuant to this Section 3.08. The Special Servicer
shall provide copies of any waivers it effects pursuant to Section 3.08(a) or
(b) to the Servicer and each Rating Agency with respect to each Mortgage Loan.
To the extent not previously provided, the Servicer shall provide copies of any
waivers it effects pursuant to Section 3.08(a) or (b) to the Special 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 pursuant to Section 3.08(a) or (b) is not paid by the related
Mortgagor, such fee is to be an expense of the Trust.
(e) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20, the Servicer may, without any Directing Certificateholder
approval, Rating Agency confirmation or Special Servicer approval (provided the
Servicer delivers notice thereof to the Special Servicer and Directing
Certificateholder, except to the extent that the Special Servicer or the
Directing Certificateholder, as the case may be, notifies the Servicer that such
party does not desire to receive copies of such items), (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 provided such releases are
required by the related Mortgage Loan documents; (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 or Companion Loan as and when due; (vi) consents to
a change in property management relating to any Mortgage Loan or Companion Loan
with respect to Mortgage Loans or Companion 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 or Companion Loan pursuant to
Treasury Regulations Section 1.860G-2(b) and would not otherwise cause either
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, Part I
of subchapter J of the Code for federal income tax purposes, (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.
(f) 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 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 along with the Servicer's
and Special Servicer's recommendation and analysis with respect to such waiver
and any additional information the Directing Certificateholder may reasonably
request 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).
(g) Notwithstanding the foregoing, with respect to the Grace
Building Whole Loan, prior to the occurrence and continuance of a Grace Building
Control Appraisal Event, the rights set forth above of the Directing
Certificateholder shall instead be exercised by the Grace Building B Note
Representative pursuant to Section 3.29 hereto. Following the occurrence and
during the continuance of a Grace Building Control Appraisal Event, the majority
holders of the Directing Certificateholder and the holders of the Grace Building
Senior Companion Notes shall exercise such rights in connection with the Grace
Building Whole Loan pursuant to the procedure set forth in the Grace Building
Co-Lender Agreement. However, in the event that a majority of such holders
cannot agree on a course of action within 30 days after receipt of a request for
consent to any action, the Special Servicer shall implement the action or
inaction that it deems in accordance with the Servicing Standards in accordance
with the Grace Building Co-Lender Agreement.
Section 3.09 Realization Upon Defaulted Mortgage Loans. (a) The
Special Servicer shall, subject to subsections (b) through (d) of this Section
3.09 and Section 3.30, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such Mortgage
Loans or Companion Loans, as come into and continue in default as to which no
satisfactory arrangements can be made for collection of delinquent payments, and
which are not released from the Trust Fund pursuant to any other provision
hereof. The foregoing is subject to the provision that, in any case in which a
Mortgaged Property shall have suffered damage from an Uninsured Cause, the
Servicer or Special Servicer shall not be required to make a Servicing Advance
and expend funds toward the restoration of such property unless the Special
Servicer has determined in its reasonable discretion that such restoration will
increase the net proceeds of liquidation of such Mortgaged Property to
Certificateholders after reimbursement to the Servicer for such Servicing
Advance, and the Servicer or Special Servicer has not determined that such
Servicing Advance together with accrued and unpaid interest thereon would
constitute a Nonrecoverable Advance. 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 or,
insofar as a Grace Building Senior Companion Note is then included in a
commercial mortgage securitization trust with respect to the whole or any
portion of which a REMIC election has been or will be made, such whole or
portion under the REMIC Provisions or cause the Upper-Tier REMIC or the
Lower-Tier REMIC or, insofar as a Grace Building Senior Companion Note is
then included in a commercial mortgage securitization trust with respect
to the whole or any portion of which a REMIC election has been or will be
made, such whole or portion to fail to qualify as a REMIC at any time that
any Uncertificated Lower-Tier Interest or Certificate, or any security
issued by such a commercial mortgage securitization trust, is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09
and Section 3.30, 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
and/or any related Companion Holder(s), 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, in the case of the Grace Building Whole Loan, may be
withdrawn in accordance with the Grace Building Co-Lender Agreement by the
Servicer from the Certificate Account, including from the sub-account relating
to each Grace Building Companion Note (such withdrawal to be made, first, from
amounts on deposit therein that are otherwise payable on or allocable to the
Grace Building B Notes and then from amounts on deposit therein that are
otherwise payable on or allocable to the Grace Building Senior Notes (pro rata
as among such notes)) at the direction of the Special Servicer); and if any such
Environmental Assessment so warrants, the Special Servicer shall (except with
respect to any Companion Loan and any Environmental Assessment ordered after the
related AB Mortgage Loan has been paid in full), at the expense of the Trust
Fund, perform such additional environmental testing as it deems necessary and
prudent to determine whether the conditions described in clauses (i) and (ii) of
the preceding sentence have been satisfied. The Special Servicer shall review
and be familiar with the terms and conditions relating to enforcing claims and
shall monitor the dates by which any claim or action must be taken (including
delivering any notices to the insurer and using reasonable efforts to perform
any actions required under such policy) under each environmental insurance
policy in effect and obtained on behalf of the mortgagee to receive the maximum
proceeds available under such policy for the benefit of the Certificateholders
and the Trustee (as holder of the Uncertificated Lower-Tier Interests).
(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 any related Companion
Loan(s) and (ii) there has been no breach of any of the representations and
warranties set forth in or required to be made pursuant to Section 2 of each of
the Mortgage Loan Purchase Agreements for which the applicable Mortgage Loan
Seller could be required to repurchase such Defaulted Mortgage Loan pursuant to
Section 3 of the applicable Mortgage Loan Purchase Agreement, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust Fund (other than proceeding to acquire title to the Mortgaged
Property) and is hereby authorized at such time as it deems appropriate to
release such Mortgaged Property from the lien of the related Mortgage, provided
that, if such Mortgage Loan has a then outstanding principal balance of greater
than $1,000,000, then prior to the release of the related Mortgaged Property
from the lien of the related Mortgage, (i) the Special Servicer shall have
notified the Rating Agencies, the Trustee, the Servicer and the Directing
Certificateholder (and, if the Grace Building Mortgaged Property is involved,
the Grace Building Directing Holder and each other Grace Building Companion
Noteholder) in writing of its intention to so release such Mortgaged Property
and the bases for such intention, (ii) the Trustee shall have notified the
Certificateholders in writing of the Special Servicer's intention to so release
such Mortgaged Property, (iii) the Holders of Certificates entitled to a
majority of the Voting Rights shall have consented to such release within 30
days of the Trustee's distributing such notice (failure to respond by the end of
such 30-day period being deemed consent), and (iv) the Special Servicer shall
have received written confirmation from each Rating Agency that such release
will not cause the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Grace Building Companion
Loan Securities, and, insofar as there is then outstanding any class of Grace
Building Companion Loan Securities that is then rated by Xxxxx'x, the Special
Servicer shall have received confirmation from Xxxxx'x in writing that the then
current ratings assigned to any of the Grace Building Companion Loan Securities
issued by such trust that are currently rated by Xxxxx'x will not be qualified,
downgraded or withdrawn by reason of such release. To the extent any fee charged
by each Rating Agency in connection with rendering such written confirmation is
not paid by the related Mortgagor, such fee is to be an expense of the Trust.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Directing Certificateholder,
each Rating Agency and the Servicer (and, insofar as the Grace Building
Mortgaged Property is involved, the Grace Building Directing Holder and the
Grace Building Senior Companion Noteholders) monthly regarding any actions taken
by the Special Servicer with respect to any Mortgaged Property securing a
Defaulted Mortgage Loan or defaulted Companion 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 Trustee shall forward, or cause to be
forwarded all such reports to each Rating Agency and the Certificateholders upon
request.
(f) The Special Servicer shall notify the Servicer of any abandoned
and/or foreclosed properties 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 or Companion Loan which is abandoned or foreclosed and the
Servicer shall report to the Internal Revenue Service and the related Mortgagor,
in the manner required by applicable law, such information and the Servicer
shall report, via Form 1099C, all forgiveness of indebtedness to the extent such
information has been provided to the Servicer by the Special Servicer. Upon
request, the Servicer shall deliver a copy of any such report to the Trustee.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan, defaulted Companion Loan or REO Property
and the basis thereof. Each Final Recovery Determination shall be evidenced by
an Officer's Certificate promptly delivered to the Trustee, the Directing
Certificateholder and the Servicer and in no event later than the next
succeeding P&I Advance Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files. (a)
Upon the payment in full of any Mortgage Loan, or the receipt by the Servicer or
the Special Servicer, as the case may be, of a notification that payment in full
shall be escrowed in a manner customary for such purposes, the Servicer or
Special Servicer, as the case may be, will immediately notify the Trustee and
request delivery of the related Mortgage File. Any such notice and request shall
be in the form of a Request for Release signed by a Servicing Officer and shall
include a statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Certificate Account pursuant to Section 3.04(a) or remitted to the Servicer to
enable such deposit, have been or will be so deposited. Within seven Business
Days (or within such shorter period as release can reasonably be accomplished if
the Servicer notifies the Trustee of an exigency) of receipt of such notice and
request, the Trustee shall release, or cause any related Custodian to release,
the related Mortgage File to the Servicer or Special Servicer, as the case may
be; provided, however, that in the case of the payment in full of the Grace
Building Mortgage Loan, the Mortgage Loan File with respect to the Grace
Building Whole Loan shall not be released by the Trustee (and the Servicer or
Special Servicer shall not request such release) unless such Mortgage Loan that
is paid in full is the sole remaining portion of the Grace Building Whole Loan
in the Trust Fund. 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 (and 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 the 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.
Section 3.11 Servicing Compensation. (a) As compensation for its
activities hereunder, the Servicer shall be entitled to receive the Servicing
Fee with respect to each Mortgage Loan, each Companion Loan and REO Loan. 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 such Mortgage
Loan 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, except that if such asset is part of the Grace
Building Whole Loan and the Grace Building Whole Loan continues to be serviced
and administered under this Agreement notwithstanding such Liquidation Event,
then the applicable Servicing Fee shall continue to accrue and be payable as if
such Liquidation Event did not occur. The Servicing Fee shall be payable
monthly, on a loan-by-loan basis, from payments of interest on each Mortgage
Loan, Companion Loan and REO Revenues allocable as interest on each REO Loan,
and as otherwise provided by Section 3.05(a). The Servicer shall be entitled to
recover unpaid Servicing Fees in respect of any Mortgage Loan, Companion Loan or
REO Loan out of that portion of related payments, Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues (in the case of an REO Loan)
allocable as recoveries of interest, to the extent permitted by Section 3.05(a).
The right to receive the Servicing Fee may not be transferred in whole or in
part (except in connection with a transfer of all of the Servicer's duties and
obligations hereunder to a successor servicer in accordance with the terms
hereof).
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 modification, waiver and
consent fees pursuant to Section 3.08(e), provided the consent of the Special
Servicer is not required to take such action, (ii) 100% of all defeasance fees
and application fees received on Non-Specially Serviced Mortgage Loans and (iii)
50% of all assumption, waiver and consent fees pursuant to Section 3.08(a) and
3.08(b) on the Non-Specially Serviced Mortgage Loans, to the extent that such
fees are paid by the Mortgagor and for which the Special Servicer's consent or
approval is required on the Non-Specially Serviced Mortgage Loans and only to
the extent that all amounts then due and payable with respect to the related
Mortgage Loan have been paid; provided that notwithstanding the foregoing, with
respect to each Mortgage Loan set forth on Schedule 3, the percentage of the
fees to be paid to the Servicer with respect to assumptions shall be as set
forth on such Schedule 3. In addition, the Servicer shall be entitled to retain
as additional servicing compensation any charges for processing Mortgagor
requests, beneficiary statements or demands, reasonable and customary consent
fees, fees in connection with defeasance, if any, and other customary charges,
and amounts collected for checks returned for insufficient funds, in each case
only to the extent actually paid by the related Mortgagor and shall not be
required to deposit such amounts in the Certificate Account pursuant to Section
3.04(a). Subject to Section 3.11(d), the Servicer shall also be entitled to
additional servicing compensation in the form of: (i) Penalty Charges to the
extent provided in subsection (d), (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. 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 any successor REO
Loan). As to each Specially Serviced Mortgage Loan and REO Loan (other than 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 in the same
manner as interest is calculated on the Specially Serviced Mortgage Loans and,
in connection with any partial month interest payment, for the same period
respecting which any related interest payment due on such Specially Serviced
Mortgage Loan or deemed to be due on such REO Loan is computed. The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. The
Special Servicing Fee shall be payable monthly, on a loan-by-loan basis, to the
extent permitted by Section 3.05(a). The right to receive the Special Servicing
Fee may not be transferred in whole or in part except in connection with the
transfer of all of the Special Servicer's responsibilities and obligations under
this Agreement.
(c) 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 any successor REO Loan) to the extent such
fees are paid by the Mortgagor and (ii) 50% of all assumption, waiver and
consent fees pursuant to Section 3.08(a) and 3.08(b) or 3.20 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); provided that, notwithstanding the foregoing, with
respect to each Mortgage Loan set forth on Schedule 3, the percentage of the
fees to be paid to the Special Servicer with respect to assumptions shall be as
set forth on such Schedule 3. The Special Servicer shall also be entitled to
additional servicing compensation in the form of a Workout Fee with respect to
each Corrected Mortgage Loan at the Workout Fee Rate on such Mortgage Loan for
so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to
any Corrected Mortgage Loan will cease to be payable if such loan again becomes
a Specially Serviced Mortgage Loan; provided that a new Workout Fee will become
payable if and when such Specially Serviced Mortgage Loan again becomes a
Corrected Mortgage Loan. If the Special Servicer is terminated (other than for
cause) or resigns, it shall retain the right to receive any and all Workout Fees
payable in respect of Mortgage Loans that became Corrected Mortgage Loans prior
to the time of that termination or resignation except the Workout Fees will no
longer be payable if the Mortgage Loan subsequently becomes a Specially Serviced
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 successor special servicer will not be entitled to any portion of
such Workout Fees. A Liquidation Fee will be payable with respect to each
Specially Serviced Mortgage Loan as to which the Special Servicer receives any
Liquidation Proceeds or Insurance and Condemnation Proceeds subject to the
exceptions set forth in the definition of Liquidation Fee (such Liquidation Fee
to be paid out of such Liquidation Proceeds, insurance and condemnation
proceeds). Notwithstanding anything to the contrary described above, no
Liquidation Fee will be payable based on, or out of, Liquidation Proceeds
received in connection with the repurchase of any Mortgage Loan by a Mortgage
Loan Seller for a breach of representation or warranty or for defective or
deficient Mortgage Loan documentation so long as such repurchase is completed
within the 90-day period or such other additional period provided for such
repurchase in this Agreement and the Mortgage Loan Purchase Agreement, the
purchase of any Specially Serviced Mortgage Loan by the Majority Controlling
Class Certificateholder, the Servicer or the Special Servicer or the purchase of
all of the Mortgage Loans and REO Properties in connection with an optional
termination of the Trust Fund pursuant to Section 9.01. If, however, Liquidation
Proceeds or Insurance and Condemnation Proceeds are received with respect to any
Corrected Mortgage Loan and the Special Servicer is properly entitled to a
Workout Fee, such Workout Fee will be payable based on and out of the portion of
such Liquidation Proceeds and Insurance and Condemnation Proceeds that
constitute principal and/or interest on such Mortgage Loan. Notwithstanding
anything herein to the contrary, the Special Servicer shall only be entitled to
receive a Liquidation Fee or a Workout Fee, but not both, with respect to
proceeds on any Mortgage Loan. Subject to Section 3.11(d), the Special Servicer
will also be entitled to additional fees in the form of Penalty Charges to the
extent provided in subsection (d). The Special Servicer shall be required to pay
out of its own funds all expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts, other than management fees in respect of REO Properties, due and owing
to any of its Sub-Servicers and the premiums for any blanket Insurance Policy
obtained by it insuring against hazard losses pursuant to Section 3.07), if and
to the extent such expenses are not expressly payable directly out of the
Certificate Account or the REO Account, and the Special Servicer shall not be
entitled to reimbursement therefor except as expressly provided in this
Agreement.
(d) 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 (other than
the Grace Building Mortgage Loan) since the prior Distribution Date shall be
applied (in such order) to reimburse (i) the Servicer, the Special Servicer, the
Fiscal Agent or the Trustee for interest on Advances on such Mortgage Loan due
on such Distribution Date, (ii) the Trust Fund for all interest on Advances
previously paid to the Servicer, the Special Servicer, the Fiscal Agent or the
Trustee pursuant to Section 3.05(a)(vi) hereof with respect to such Mortgage
Loan and (iii) the Trust Fund for costs of all additional Trust Fund expenses
(other than Special Servicing Fees), including without limitation, inspections
by the Special Servicer and all unpaid Advances incurred since the Closing Date
with respect to such Mortgage Loan; Penalty Charges remaining thereafter shall
be distributed to the Servicer, if and to the extent collected while the
Mortgage Loan was a Non-Specially Serviced Mortgage Loan and to the Special
Servicer if and to the extent collected on such Mortgage Loan during the period
such Mortgage Loan was a Specially Serviced Mortgage Loan.
Notwithstanding the foregoing, with respect to any Grace Building
Remittance Date, any and all Penalty Charges that are actually collected on the
Grace Building Whole Loan since the prior Grace Building Remittance Date, shall
be applied for the following purposes and in the following order, in each case
to the extent of the remaining portion of such Penalty Charges:
first, toward the payment of or reimbursement for accrued and unpaid
interest on (i) any presently outstanding Servicing Advances made with respect
to the Grace Building Whole Loan to the extent that the advance interest would
be paid from a source other than (to the extent permitted by the Grace Building
Co-Lender Agreement) amounts otherwise allocable on the Grace Building B Notes,
and (ii) any previously paid Servicing Advances made with respect to the Grace
Building Whole Loan to the extent that the advance interest has been paid from a
source other than Penalty Charges and (to the extent permitted by the Grace
Building Co-Lender Agreement) amounts otherwise allocable on the Grace Building
B Note;
second, toward the payment of or reimbursement for accrued and
unpaid interest on (i) any presently outstanding principal and interest advances
(including P&I Advances hereunder and any advances comparable to P&I Advances
made under a securitization agreement governing a Grace Building Companion Note)
made with respect to the Grace Building Mortgage Loan and/or the Grace Building
Senior Companion Notes, to the extent that the advance interest would be paid
from a source other (to the extent permitted by the Grace Building Co-Lender
Agreement) amounts otherwise allocable on the Grace Building B Notes, and (ii)
any previously paid principal and interest advances (including P&I Advances
hereunder and any advances comparable to P&I Advances made under a
securitization agreement governing a Grace Building Senior Companion Note) made
with respect to the Grace Building Mortgage Loan and/or the Grace Building
Senior Companion Notes, to the extent that the advance interest has been paid
from a source other than Penalty Charges and (to the extent permitted by the
Grace Building Co-Lender Agreement) amounts otherwise allocable on the Grace
Building B Notes;
third, toward the payment of or reimbursement for (i) any presently
outstanding Co-Lender Expenses (as defined under the Grace Building Co-Lender
Agreement), other than Special Servicing Fees, to the extent that the expense
would be paid from a source other than (to the extent permitted by the Grace
Building Co-Lender Agreement) amounts otherwise allocable on the Grace Building
B Notes, and (ii) any previously paid Co-Lender Expenses (as defined under the
Grace Building Co-Lender Agreement), other than Special Servicing Fees, to the
extent that the expense has been paid from a source other than Penalty Charges
and (to the extent permitted by the Grace Building Co-Lender Agreement) amounts
otherwise allocable on the Grace Building B Note; and
fourth, to pay any remaining portion of such Penalty Charges with
respect to the Grace Building Whole Loan as additional servicing compensation to
the Servicer, to the extent received, if and to the extent collected while the
Grace Building Whole Loan was a Non-Specially Serviced Mortgage Loan, and to the
Special Servicer, to the extent received, if and to the extent collected while
the Grace Building Whole Loan was a Specially Serviced Mortgage Loan.
As among the various holders of the Grace Building Mortgage Loan and
the Grace Building Senior Companion Notes, the payments and reimbursements under
each relevant clause shall be made pro rata among those holders according to the
respective amounts described in that clause that is attributable to each of
them.
Section 3.12 Inspections; Collection of Financial Statements. (a)
The Servicer shall perform (at its own expense), or shall cause to be performed
(at its own expense), a physical inspection of each Mortgaged Property at least
once every 12 months commencing in the calendar year 2005 (provided that each
such Mortgaged Property shall be inspected on or prior to May 2005); provided,
however, that if a physical inspection has been performed by the Special
Servicer in the previous 12 months, the Servicer will not be required to perform
or cause to be performed, such physical inspection; provided, further, that if
any scheduled payment becomes more than 60 days delinquent on the related
Mortgage Loan, the Special Servicer shall inspect the related Mortgaged Property
as soon as practicable after such Mortgage Loan becomes a Specially Serviced
Mortgage Loan and annually thereafter for so long as such Mortgage Loan remains
a Specially Serviced Mortgage Loan. The cost of such inspection by the Special
Servicer shall be an expense of the Trust Fund, reimbursed first from Penalty
Charges (but with respect to the Grace Building Mortgage Loan, only from amounts
available for such purpose under the Grace Building Co-Lender Agreement)
actually received from the related Mortgagor and then from the Certificate
Account pursuant to Section 3.05(a)(ii). The Special Servicer or the Servicer,
as applicable, shall prepare or cause to be prepared a written report of each
such inspection detailing the condition of the Mortgaged Property and specifying
the existence of (i) any vacancy in the Mortgaged Property that the preparer of
such report deems material, (ii) any sale, transfer or abandonment of the
Mortgaged Property of which it has knowledge, (iii) any adverse change in the
condition of the Mortgaged Property that the preparer of such report deems
material, (iv) any visible material waste committed on the Mortgaged Property
and (v) photographs of each inspected Mortgaged Property. The Special Servicer
and the Servicer shall deliver a copy of each such report prepared by the
Special Servicer and the Servicer, respectively, to the other, and to the
Directing Certificateholder electronically using the ARCap naming convention the
form of which is attached hereto as Exhibit T (the "ARCap Naming Convention"),
to the Trustee and the Rating Agencies within five (5) Business Days after
request (or if such request is received before such report is completed, within
five (5) Business Days after completion of such report). The Trustee shall
deliver a copy of each such report to the Controlling Class Certificateholder
(and with respect to the Grace Building Whole Loan, the Grace Building B
Noteholders) 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). Notwithstanding anything herein to the contrary, if ARCap
Servicing Inc. or an Affiliate is no longer the Directing Certificateholder and
if ARCap Servicing, Inc. is no longer the Special Servicer, none of the
Servicer, the Special Servicer or the Trustee shall be required to use the ARCap
Naming Convention.
(b) The Special Servicer or Servicer, as applicable, shall make
reasonable efforts to collect promptly from each Mortgagor annual operating
statements and rent rolls of the related Mortgaged Property, financial
statements of such Mortgagor and any other reports required to be delivered
under the terms of the Mortgage Loans (and each Companion Loan), if delivery of
such items is required pursuant to the terms of the related Mortgage.
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Servicer, in the case of any Non-Specially Serviced
Mortgage Loan shall make reasonable efforts to collect promptly from each
related Mortgagor quarterly and annual operating statements, budgets and rent
rolls of the related Mortgaged Property, and the quarterly and annual financial
statements of such Mortgagor, whether or not delivery of such items is required
pursuant to the terms of the related Mortgage. In addition, the Special Servicer
shall cause quarterly and annual operating statements, budgets and rent rolls to
be regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation. The Special Servicer shall deliver
all such items to the Servicer within five (5) days of receipt and the Servicer
and the Special Servicer each shall deliver copies of all the foregoing items so
collected thereby to the Trustee and the Directing Certificateholder
(electronically using the ARCAP Naming Convention) and, upon request, to the
Depositor and each other, in each case within 60 days of its receipt thereof,
but in no event, in the case of annual statements, later than June 1 of each
year commencing June 1, 2005. The Trustee shall, upon request, deliver copies
(in hard copy, electronic format or make available on its Internet website) of
the foregoing items to the Underwriters, the Rating Agencies, the Controlling
Class Certificateholders, the Mortgage Loan Sellers or, to the extent the
Certificate Registrar has confirmed the Ownership Interest in Certificates held
thereby, any Certificate Owner, a copy (or image in suitable electronic media)
of each such report prepared by the Servicer or the Special Servicer.
Within 105 calendar days after the end of each of the first three
calendar quarters (in each year) for the trailing or quarterly information
received, commencing in the quarter ending on September 30, 2004, the Servicer
(in the case of the Mortgage Loans that are Non-Specially Mortgage Loans) or the
Special Servicer (in the case of the Specially Serviced Mortgage Loans) shall
deliver to the Trustee and the Directing Certificateholder and with respect to
the Grace Building Whole Loan, the Grace Building Companion Noteholders, a CMSA
Operating Statement Analysis Report and a CMSA Financial File for each Mortgaged
Property (in electronic format), prepared using the non-normalized quarterly and
normalized year-end operating statements and rent rolls received from the
related Mortgagor. Beginning in 2005 for year-end 2004, within 45 days after
receipt by the Servicer, with respect to Non-Specially Serviced Mortgage Loans,
or the Special Servicer with respect to Specially Serviced Mortgage Loans of any
annual operating statements or rent rolls with respect to any Mortgaged Property
or REO Property, or if such date would be after June 1 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 CMSA NOI Adjustment Worksheet and the CMSA
Operating Statement Analysis Report. Upon the occurrence and continuation of a
Servicing Transfer Event, the Servicer shall provide the Special Servicer with
all prior CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment
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 CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment
Worksheets shall be maintained by the Servicer with respect to each Mortgaged
Property and REO Property, and the Servicer shall forward copies (in electronic
format with ARCap Naming Convention) 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 (in electronic
format only), the Directing Certificateholder (and with respect to the Grace
Building Whole Loan, the Grace Building Companion Noteholders) and the Special
Servicer (in the case of the Directing Certificateholder, electronic copies
using the ARCap Naming Convention). The Trustee shall, upon request and to the
extent such items have been delivered to the Trustee by the Servicer, deliver to
the Underwriters, the Rating Agencies, the Mortgage Loan Sellers, any
Certificateholder or, to the extent the Certificate Registrar has confirmed the
Ownership Interest in the Certificates held thereby, any Certificate Owner, a
copy of such CMSA Operating Statement Analysis Report (or update thereof) and
CMSA NOI Adjustment Worksheet (or update thereof), upon written request, and the
related operating statement or rent rolls. The Servicer shall maintain a CMSA
Operating Statement Analysis Report and a CMSA NOI Adjustment Worksheet with
respect to each Mortgaged Property and REO Property.
(d) At or before 12:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Servicer and the Directing
Certificateholder the CMSA Special Servicer Loan File 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, which CMSA Special
Servicer Loan File shall include data, to enable Servicer to produce the
following CMSA Supplemental Reports: (i) a CMSA Delinquent Loan Status Report,
(ii) a CMSA Historical Liquidation Report, (iii) a CMSA Historical Loan
Modification and Corrected Mortgage Loan Report, (iv) a CMSA REO Status Report,
(v) a CMSA Comparative Financial Status Report and (vi) a CMSA NOI Adjustment
Worksheet and a CMSA Operating Statement Analysis Report.
(e) Not later than 1:00 p.m. (New York City time) on the P&I Advance
Date, the Servicer shall prepare (if and to the extent necessary) and deliver or
cause to be delivered in electronic format to the Trustee the following reports
and data files: (i) to the extent the Servicer has received the CMSA Special
Servicer Loan File at the time required, the most recent CMSA Delinquent Loan
Status Report, CMSA Historical Liquidation Report, CMSA Historical Loan
Modification and Corrected Mortgage Loan Report, and CMSA REO Status Report,
(ii) CMSA Loan Setup File (with respect to the first Distribution Date), (iii)
the most recent CMSA Property File, and CMSA Comparative Financial Status Report
(in each case incorporating the data required to be included in the CMSA Special
Servicer Loan File pursuant to Section 3.12(d) by the Special Servicer and
Servicer), (iv) a CMSA Servicer Watch list with information that is current as
of such Determination Date, (v) CMSA Financial File, (vi) CMSA Loan Level
Reserve LOC Report, (vii) CMSA Reconciliation of Funds Report, (viii) the
Realized Loss Report and (ix) the Monthly Additional Report on Recoveries and
Reimbursements. Not later than 2:00 p.m. (New York City time) two (2) Business
Days prior to the Distribution Date, the Servicer shall deliver or cause to be
delivered to the Trustee via electronic format the CMSA Loan Periodic Update
File. In no event shall any report described in this subsection be required to
reflect information that has not been collected by or delivered to the Servicer,
or any payments or collections not received by the Servicer, as of the Business
Day prior to the Business Day on which the report is due.
(f) The Special Servicer shall deliver to the Servicer the reports
required of the Special Servicer pursuant to Section 3.12(c) and Section
3.12(d), and the Servicer shall deliver to the Trustee the reports and data
files set forth in Section 3.12(e). The Servicer may, absent manifest error,
conclusively rely on the reports and/or data to be provided by the Special
Servicer pursuant to Section 3.12(c) and Section 3.12(d). The Trustee may,
absent manifest error, conclusively rely on the reports and/or data to be
provided by the Servicer pursuant to Section 3.12(e). In the case of information
or reports to be furnished by the Servicer to the Trustee pursuant to Section
3.12(e), to the extent that such information or reports are, in turn, based on
information or reports to be provided by the Special Servicer pursuant to
Section 3.12(c) or Section 3.12(d) and to the extent that such reports are to be
prepared and delivered by the Special Servicer pursuant to Section 3.12(c) or
Section 3.12(d), the Servicer shall have no obligation to provide such
information or reports to the Trustee until it has received the requisite
information or reports from the Special Servicer, and the Servicer shall not be
in default hereunder due to a delay in providing the reports required by Section
3.12(e) caused by the Special Servicer's failure to timely provide any
information or report required under Section 3.12(c) or Section 3.12(d) of this
Agreement.
(g) Notwithstanding the foregoing, however, the failure of the
Servicer or Special Servicer to disclose any information otherwise required to
be disclosed by this Section 3.12 shall not constitute a breach of this Section
3.12 to the extent the Servicer or Special Servicer so fails because such
disclosure, in the reasonable belief of the Servicer or the Special Servicer, as
the case may be, would violate any applicable law or any provision of a Mortgage
Loan document prohibiting disclosure of information with respect to the Mortgage
Loans or Mortgaged Properties. The Servicer and Special Servicer may disclose
any such information or any additional information to any Person so long as such
disclosure is consistent with applicable law and the Servicing Standards. The
Servicer or the Special Servicer may affix to any information provided by it any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(h) If the Servicer or the Special Servicer is required to deliver
any statement, report or information under any provisions of this Agreement, the
Servicer or the Special Servicer, as the case may be, may satisfy such
obligation by (x) physically delivering a paper copy of such statement, report
or information, (y) delivering such statement, report or information in a
commonly used electronic format or (z) except with respect to information to be
provided to the Directing Certificateholder, making such statement, report or
information available on the Servicer's or the Special Servicer's Internet
website, unless this Agreement expressly specifies a particular method of
delivery.
The Servicer shall prepare and deliver electronically to the
Directing Certificateholder, and each of the Trustee and Servicer, as
applicable, shall make available on its website the reports and information
described in Exhibit M in the forms and formats and within the timeframes set
forth therein. None of the Servicer, the Special Servicer or the Trustee shall
have any liability for disseminating information in accordance with the terms of
this Agreement.
Section 3.12A Delivery of Certain Reports to the Grace Building
Companion Noteholders.
(a) The Servicer and the Special Servicer shall each promptly
prepare or cause to be prepared and deliver to each Grace Building Companion
Noteholder a written report, prepared in the manner set forth in Section 3.12,
of each inspection performed by it with respect to the Grace Building Mortgaged
Property.
The Servicer shall promptly deliver to each Grace Building Companion
Noteholder: (i) copies of operating statements and rent rolls; (ii) upon
request, annual CMSA NOI Adjustment Worksheets (with annual operating statements
as exhibits); and (iii) annual CMSA Operating Statement Analysis Reports, in
each case prepared, received or obtained by it pursuant to Section 3.12 with
respect to the Grace Building Mortgaged Property.
The Servicer shall promptly deliver to any Other Servicer, upon
request, such information in the Servicer's possession as the Other Servicer
requests in order to determine whether a P&I Advance would be "nonrecoverable."
(b) If the Mortgage Loans forming the Grace Building Whole Loan
constitute Specially Serviced Loans, or if the Grace Building Mortgaged Property
has become an REO Property, then each calendar month, not later than 2:00 p.m.
(New York City time) on the Business Day after the related Determination Date,
the Special Servicer shall prepare and deliver or cause to be delivered to the
Servicer the CMSA Special Servicer Loan File, providing the information required
of the Special Servicer in an electronic format, reasonably acceptable to the
Servicer, which CMSA Special Servicer Loan File shall include data, to enable
the Servicer to produce the following Supplemental Reports as may be relevant
with respect to the Grace Building Whole Loan and/or the Grace Building
Mortgaged Property: (i) a CMSA Delinquent Loan Status Report, (ii) a CMSA
Historical Liquidation Report, (iii) a CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, and (iv) a CMSA REO Status Report.
(c) The Special Servicer shall deliver to the Servicer the reports
set forth in Section 3.12A(b) in an electronic format reasonably acceptable to
the Servicer. The Servicer may, absent manifest error, conclusively rely on the
reports to be provided by the Special Servicer pursuant to Section 3.12A(b). In
the case of information or reports to be furnished by the Servicer to the Grace
Building Companion Noteholder pursuant to Section 3.12B(a), to the extent that
such information is based on reports to be provided by the Special Servicer
pursuant to Section 3.12A(b) and/or that such reports are to be prepared and
delivered by the Special Servicer pursuant to Section 3.12A(b), so long as the
Servicer and the Special Servicer are not the same Person or Affiliates, the
Servicer shall have no obligation to provide such information or reports until
it has received such information or reports from the Special Servicer, and the
Servicer shall not be in default hereunder due to a delay in providing the
reports required by Section 3.12B(a) caused by the Special Servicer's failure to
timely provide any report required under Section 3.12A(b) of this Agreement.
(d) The preparation and maintenance by the Servicer and the Special
Servicer of all the reports specified in this Section 3.12A, including the
calculations made therein, shall be done in accordance with CMSA standards, to
the extent applicable thereto. In no event shall any report described in this
subsection be required to reflect information that has not been collected by or
delivered to the Servicer or Special Servicer, as applicable, or any payments or
collections not received by the Servicer or Special Servicer, as applicable, as
of the Business Day prior to the Business Day on which the report is due.
Section 3.12B Statements to the Grace Building Companion
Noteholders.
(a) On each date in each month where the Servicer is required to
make deposits to the Companion Distribution Account for the Grace Building
Companion Noteholders, the Servicer shall forward to the Companion Paying Agent
(which shall forward such reports to each Grace Building Companion Noteholder on
the date when such Companion Paying Agent is required to make remittances
thereto in such month) in electronic format the following reports and data files
with respect to the Grace Building Whole Loan: (i) to the extent the Servicer
has received the CMSA Special Servicer Loan File at the time required, the most
recent CMSA Delinquent Loan Status Report, CMSA Historical Liquidation Report,
CMSA Historical Loan Modification and Corrected Mortgage Loan Report, and CMSA
REO Status Report, (ii) CMSA Loan Setup File (with respect to the first
Distribution Date), (iii) the most recent CMSA Property File, and CMSA
Comparative Financial Status Report (in each case incorporating the data
required to be included in the CMSA Special Servicer Loan File pursuant to
Section 3.12(d) by the Special Servicer and Servicer), (iv) a CMSA Servicer
Watch list with information that is current as of such Determination Date, (v)
CMSA Financial File, (vi) CMSA Loan Level Reserve LOC Report, (vii) CMSA
Reconciliation of Funds Report, (viii) the Realized Loss Report, (ix) the
Monthly Additional Report on Recoveries and Reimbursements, (x) CMSA Operating
Statement Analysis Reports and (xi) CMSA NOI Adjustment Worksheets. Not later
than 2:00 p.m. (New York City time) two (2) Business Days prior to the Grace
Building Remittance Date, the Servicer shall deliver or cause to be delivered to
the Trustee via electronic format the CMSA Loan Periodic Update File. In no
event shall any report described in this subsection be required to reflect
information that has not been collected by or delivered to the Servicer, or any
payments or collections not received by the Servicer, as of the Business Day
prior to the Business Day on which the report is due.
(b) The Servicer shall only be obligated to deliver the statements,
reports and information contemplated by Section 3.12B(a) to the extent it
receives the necessary underlying information from the Special Servicer and
shall not be liable for its failure to deliver such statements, reports and
information on the prescribed due dates, to the extent caused by the failure of
the Special Servicer to deliver timely such underlying information. Nothing
herein shall obligate the Servicer or the Special Servicer to violate any
applicable law prohibiting disclosure of information with respect to the related
Mortgagor, and the failure of the Servicer or the Special Servicer to
disseminate information for such reason shall not be a breach hereunder.
(c) Absent manifest error of which it has actual knowledge, neither
the Servicer nor the Special Servicer shall be responsible for the accuracy or
completeness of any information supplied to it by a Mortgagor, the Depositor, a
Mortgage Loan Seller or third party that is included in any reports, statements,
materials or information prepared or provided by the Servicer or the Special
Servicer, as applicable, pursuant to this Agreement. Neither the Servicer nor
the Special Servicer shall have any obligation to verify the accuracy or
completeness of any information provided by a Mortgagor, the Depositor, a
Mortgage Loan Seller, a third party or each other.
Section 3.13 Annual Statement as to Compliance. Each of the Servicer
and the Special Servicer will deliver to the Trustee and the Rating Agencies and
to each holder of a Grace Building Companion Loan, with a copy to the Depositor,
on or before March 15th of each year, beginning March 15, 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 and of its performance under this Agreement has been
made under such officer's supervision, (ii) to the best of such officer's
knowledge, based on such review, the Servicer or the Special Servicer, as the
case may be, has 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 Trustee pursuant to Section 8.12 hereof. However, to the extent
the Securities and Exchange Commission promulgates new rules with respect to
this annual statement of compliance that are required to be implemented with
respect to this Agreement, the form of the compliance statement required by this
Section 3.13 shall conform to the requirements of the Securities and Exchange
Commission. Promptly after receipt of such Officer's Certificates, the Depositor
shall review such Officer's Certificates and, if applicable, consult with the
Servicer or the Special Servicer, as applicable, as to the nature of any
defaults by the Servicer or the Special Servicer, as applicable, in the
fulfillment of any of the Servicer's or the Special Servicer's obligations.
Section 3.14 Reports by Independent Public Accountants. Each of the
Servicer and the Special Servicer at their own expense shall cause a nationally
recognized firm of independent certified public accountants to furnish to the
Trustee and each Rating Agency and to each holder of a Grace Building Companion
Loan, with a copy to the Depositor on or before March 15th of each year,
commencing with March 15, 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, 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. However, to the extent the Securities
and Exchange Commission promulgates new rules with respect to these reports by
firms of independent certified public accountants that are required to be
implemented with respect to this Agreement, the form of these reports required
by this Section 3.14 shall conform to the requirements of the Securities and
Exchange Commission. Promptly after receipt of such reports, the Depositor shall
review such reports and, if applicable, consult with the Servicer or the Special
Servicer, as applicable, as to the nature of any defaults by the Servicer or the
Special Servicer, as applicable, in the fulfillment of any of the Servicer's or
the Special Servicer's obligations.
Section 3.15 Access to Certain Information. Each of the Servicer and
the Special Servicer shall provide or cause to be provided to any
Certificateholder or Certificate Owner that is, or is affiliated with, a
federally insured financial institution, the Trustee, the Depositor, each
Mortgage Loan Seller, each Rating Agency, to the Servicer, or to the Special
Servicer, as applicable, and to the OTS, the FDIC, the Federal Reserve Board and
the supervisory agents and examiners of such boards and such corporations, and
any other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, and to each Holder of a Class 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 or the Grace Building Whole Loan, as applicable) access to any
documentation or information regarding the Mortgage Loans and related Companion
Loans and the Trust Fund within its control which may be required by this
Agreement or by applicable law, and the Special Servicer shall provide such
access and information to the Trustee, the Servicer and the Directing
Certificateholder (and with respect to the Grace Building Whole Loan, to the
Grace Building Companion Noteholders). At the election of the Servicer or the
Special Servicer, such access may be afforded to such Person identified above by
the delivery of copies of information as requested by such Person and the
Servicer or the Special Servicer shall be permitted to require payment (other
than from the Directing Certificateholder and the Trustee) of a sum sufficient
to cover the reasonable out-of-pocket costs incurred by it in making such
copies. Such access shall (except as described in the preceding sentence) 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; provided that nothing in this paragraph shall provide a basis for not
providing to the Directing Certificateholder any information specifically
required to be delivered to it under the terms of this Agreement. 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. In
connection with providing access to information pursuant to this Section 3.15 to
parties other than the Trustee, the Servicer and the Special Servicer may each
(i) affix a reasonable disclaimer to any information provided by it for which it
is not the original source (without suggesting liability on the part of any
other party hereto); (ii) affix to any information provided by it a reasonable
statement regarding securities law restrictions on such information and/or
condition access to information on the execution of a reasonable confidentiality
agreement; (iii) withhold access to confidential information or any intellectual
property; and (iv) withhold access to items of information contained in the
Servicing File for any Mortgage Loan if the disclosure of such items is
prohibited by applicable law or the provisions of any related Mortgage Loan
documents or would constitute a waiver of the attorney-client privilege.
Notwithstanding any provision of this Agreement to the contrary, the failure of
the Servicer or the Special Servicer to disclose any information otherwise
required to be disclosed by it pursuant to this Agreement shall not constitute a
breach of this Agreement to the extent that the Servicer or the Special
Servicer, as the case may be, determines, in its reasonable good faith judgment
consistent with the Servicing Standards, that such disclosure would violate
applicable law or any provision of a Mortgage Loan document or Companion Loan
document prohibiting disclosure of information with respect to the Mortgage
Loans or Companion Loans or the Mortgaged Properties, constitute a waiver of the
attorney-client privilege on behalf of the Trust or the Trust Fund or otherwise
materially harm the Trust or the Trust Fund.
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, on behalf of the Companion Holder. The Special Servicer, on behalf
of the Trust Fund and, if applicable, the Grace Building Companion Noteholders,
shall sell any REO Property prior to the close of the third calendar year
following the year in which the Trust Fund acquires ownership of such REO
Property, within the meaning of Treasury Regulations Section 1.856-6(b)(1), for
purposes of Section 860G(a)(8) of the Code, unless the Special Servicer either
(i) is granted an extension of time (an "REO Extension") by the Internal Revenue
Service to sell such REO Property or (ii) obtains for the Trustee and the
Servicer an Opinion of Counsel, addressed to the Trustee and the Servicer, to
the effect that the holding by the Trust Fund of such REO Property subsequent to
the close of the third calendar year following the year in which such
acquisition occurred will not cause the imposition of a tax on the Upper-Tier
REMIC or the Lower-Tier REMIC or, insofar as a Grace Building Senior Companion
Note is then included in a commercial mortgage securitization trust with respect
to the whole or any portion of which a REMIC election has been or will be made,
such whole or portion under the REMIC Provisions or cause the Upper-Tier REMIC
or the Lower-Tier REMIC or, insofar as a Grace Building Senior Companion Note is
then included in a commercial mortgage securitization trust with respect to the
whole or any portion of which a REMIC election has been or will be made, such
whole or portion to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interest or Certificate, or any security issued by
such a commercial mortgage securitization trust, is 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, on behalf of the Companion Holder(s), 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 (or such
subaccount of the Certificate Account for each Companion Loan, as applicable),
the aggregate of all amounts received in respect of each REO Property during the
most recently ended Due Period, net of (i) any withdrawals made out of such
amounts pursuant to the preceding sentence and (ii) Net Investment Earnings on
amounts on deposit in the REO Account; provided, however, that the Special
Servicer may retain in such REO Account, in accordance with the Servicing
Standards, such portion of such balance as may be necessary to maintain a
reasonable reserve for repairs, replacements, leasing, management and tenant
improvements and other related expenses for the related REO Property. In
addition, on or prior to each Determination Date, the Special Servicer shall
provide the Servicer with a written accounting of amounts remitted to the
Servicer for deposit in the Certificate Account, as applicable, on such date.
The Servicer shall apply all such amounts as instructed by the Special Servicer
on the Determination Date for the related Distribution Date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property. (a) If title to any REO
Property is acquired, the Special Servicer shall manage, consent, protect,
operate and lease such REO Property for the benefit of the Certificateholders
and the Companion Holders, as applicable, and the Trustee (as holder of the
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 or the holder of any Grace
Building Senior Companion Note of any "income from non-permitted assets" within
the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC
Event or a similar event involving any commercial mortgage securitization trust
that holds a Grace Building Senior Companion Note. 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
related Companion Holder(s)) and the Trustee (as holder of the Uncertificated
Lower-Tier Interests) all as a collective whole (as determined by the Special
Servicer in its reasonable judgment in accordance with the Servicing Standards).
Subject to this Section 3.17, the Special Servicer may allow the Trust Fund to
earn "net income from foreclosure property" within the meaning of Section
860G(d) of the Code if it determines that earning such income is in the best
interests of Certificateholders and, if applicable, any related Companion
Holder(s) 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, at its sole option, the Special Servicer shall
advance from its own funds such amount as is necessary for such purposes unless
(as evidenced by an Officer's Certificate delivered to the Trustee, the
Depositor and the Directing Certificateholder) such advances would, if made,
constitute Nonrecoverable Servicing Advances.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Servicer 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 for the benefit of the Trust Fund and/or,
if applicable, any commercial mortgage securitization trust that holds a Grace
Building Senior Companion Note, in which case the Special Servicer may take such
actions as are specified in such Opinion of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated to manage and supervise
such Independent Contractor in accordance with the Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Servicer a statement prepared by the Special Servicer setting
forth the amount of net income or net loss, as determined for federal income tax
purposes, resulting from the operation and management of a trade or business on,
the furnishing or rendering of a non-customary service to the tenants of, or the
receipt of any other amount not constituting Rents from Real Property in respect
of, any REO Property in accordance with Sections 3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan has become a
Specially Serviced Mortgage Loan with respect to any Defaulted Mortgage Loan,
the Special Servicer shall order an Appraisal (but shall not be required to be
received) and within thirty (30) days of receipt of the Appraisal shall
determine the fair value of such Defaulted Mortgage Loan in accordance with the
Special Servicer Servicing Standard; 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 may, 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 a
review of such circumstances and new information in accordance with the
Servicing Standards, conducted not less often than every 90 days. The Special
Servicer shall notify the Trustee, the Servicer and the Certificateholder that
owns the largest aggregate Certificate Balance of the Controlling Class (the
"Controlling Class Option Holder") and the Grace Building Companion Noteholders
with respect to the Grace Building Mortgage Loan, promptly upon its making a
fair value determination and any subsequent adjustment thereto. The Special
Servicer shall also deliver to the Servicer, the Rating Agencies, the
Controlling Class Option Holder and the Grace Building Companion Noteholders
with respect to the Grace Building Whole Loan the most recent Appraisal of the
related Mortgaged Property then in the Special Servicer's possession, together
with such other third-party reports and other information then in the Special
Servicer's possession that the Special Servicer reasonably believes to be
relevant to the fair value determination with respect to such Mortgage Loan
(such materials are, collectively, the "Determination Information"). If the
Special Servicer will not be determining whether the Option Price represents
fair value of the Defaulted Mortgage Loan, pursuant to the second to last
paragraph of Section 3.18(a)(iv), the Special Servicer shall also deliver the
Determination Information to the Trustee.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to the Determination
Information and all other relevant information obtained by it or otherwise
contained in the Mortgage File; provided that the Special Servicer shall take
account of any change in circumstances regarding the related Mortgaged Property
known to the Special Servicer that has occurred subsequent to, and that would,
in the Special Servicer's reasonable judgment, materially affect the value of
the related Mortgaged Property reflected in, the most recent related Appraisal.
Furthermore, the Special Servicer shall consider all available objective
third-party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the Special
Servicer, concerning the market for distressed real estate loans and the real
estate market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may conclusively rely on the
opinion and reports of Independent third parties in making such determination.
(ii) Subject to the terms and conditions of clauses (d), (e), (f)
and (g) of this Section 3.18, at the time a Mortgage Loan becomes a
Defaulted Mortgage Loan, the Special Servicer and Controlling Class Option
Holder (each, together with their assignees, an "Option Holder") will have
an assignable option (the "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund at a price (the "Option Price") equal to
(A) if the Special Servicer has not yet determined the fair value of such
Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Yield Maintenance Charge or prepayment
premium then payable (except if the Purchase Option is exercised by the
Controlling Class Option Holder), (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 to the
extent not included in (1) above, and (4) all accrued Special Servicing
Fees and additional Trust Fund expenses allocable to such Defaulted
Mortgage Loan whether recovered or unrecovered from the related Mortgagor
or (B) if the Special Servicer has determined the fair value of such
Defaulted Mortgage Loan pursuant to clause (i) above, an amount at least
equal to such fair value. Notwithstanding the foregoing, for a period of
sixty (60) days after it receives notice of the Special Servicer's fair
value determination (the "Controlling Class Certificateholder's Option
Period"), only the Purchase Option held by the Controlling Class Option
Holder may be exercised.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party
at any time after the related Mortgage Loan becomes a Defaulted Mortgage
Loan. The transferor of any Purchase Option shall notify the Trustee and
the Servicer of such transfer and such notice shall include the
transferee's name, address, telephone number, facsimile number and
appropriate contact person(s) and shall be acknowledged in writing by the
transferee.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, that if such Mortgage Loan subsequently becomes a
Defaulted Mortgage Loan, the related Purchase Option shall again be
exercisable, (B) upon the acquisition, by or on behalf of the Trust Fund,
of title to the related Mortgaged Property through foreclosure or deed in
lieu of foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout,
(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 or (E) with respect to the Grace Building Mortgage Loan, upon
the exercise of a Grace Building B Noteholder's purchase option under the
Grace Building Co-Lender Agreement.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Controlling Class Certificateholder's Option Period,
each Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Servicer and the Trustee written notice thereof (the "Purchase Option
Notice"), in the form of Exhibit J, which notice shall identify the Person
that, on its own or through an Affiliate, will acquire the related
Mortgage Loan upon closing and shall specify a cash exercise price at
least equal to the Option Price. The Purchase Option Notice shall be
delivered in the manner specified in Section 11.05. Immediately upon
receipt of such Purchase Option Notice, the 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 Special 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 Special Servicer shall be
effective. The exercise of any Purchase Option pursuant to this clause
(iii) shall be irrevocable; provided that the assignor of the Purchase
Option shall have no liability to the Trust or any other party hereto for
the failure of its third party assignee to close the sale of the Defaulted
Mortgage Loan after its exercise of the option, and upon such failure, the
Purchase Option shall revert to the Option Holder as provided herein as if
the Purchase Option had not been exercised, and the Special Servicer shall
pursue against such assignee whatever remedies it may have against the
assignee.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the Servicer shall determine as soon as reasonably
practicable (and, in any event, within thirty (30) days) after the
Servicer has received the written notice and the Determination Information
to be provided to the Servicer by the Special Servicer under Section
3.18(a)(i), whether the Option Price represents fair value for the
Defaulted Mortgage Loan; provided that, if the Special Servicer is then in
the process of obtaining a new Appraisal with respect to the related
Mortgaged Property, then the Servicer shall make its fair value
determination with respect to such Mortgage Loan as soon as reasonably
practicable (but in any event within thirty (30) days) after the
Servicer's receipt of such new Appraisal. Such fair value determination
shall be made in accordance with Servicing Standards. In determining the
fair value of any Defaulted Mortgage Loan, the Servicer shall take into
account, among other factors, the period and amount of the delinquency on
such Mortgage Loan, the occupancy level and physical condition of the
related Mortgaged Property, the state of the local economy in the area
where the Mortgaged Property is located, and the time and expense
associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Servicer shall refer to the Determination
Information and all other relevant information delivered to it by the
Special Servicer or otherwise contained in the Mortgage File; provided
that the Servicer shall take account of any change in circumstances
regarding the related Mortgaged Property known to the Servicer that has
occurred subsequent to, and that would, in the Servicer's reasonable
judgment, materially affect the value of the related Mortgaged Property
reflected in, such appraisal. Furthermore, the Servicer shall consider all
available objective third-party information obtained from generally
available sources, as well as information obtained from vendors providing
real estate services to the Servicer, concerning the market for distressed
real estate loans and the real estate market for the subject property type
in the area where the related Mortgaged Property is located. The Servicer
may conclusively rely on the opinion and reports of Independent third
parties in making such determination. The Servicer shall be entitled to
receive out of the Certificate Account as additional compensation a
reasonable fee, not to exceed $2,500 plus reasonable out-of-pocket costs
and expenses, for each determination made in accordance with this clause
(iv), provided, however, with respect to any Mortgage Loan, such fee shall
be collectible once in any six-month period. The reasonable cost of all
third party consultants and related reports, including but not limited to
appraisals, inspection reports and broker opinions of value, reasonably
incurred by the Servicer pursuant to this Section 3.18(a)(iv) shall
constitute, and be reimbursable as, Servicing Advances; provided that the
Servicer may rely on the most current Appraisal and property inspection
report obtained for the related Mortgaged Property pursuant to Section
3.12. The other parties to this Agreement shall cooperate with all
reasonable requests for information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, and the Servicer and the Special Servicer are Affiliates,
the Trustee, shall designate an Independent third party, independent of
the Directing Certificateholder, to determine whether the Option Price
represents fair value for the Defaulted Mortgage Loan, in the manner and
within the time set forth in the first paragraph of this clause (iv). In
the event that the Trustee is called upon to designate such a third party
to make such determination, the Trustee will not assume any responsibility
for such third party's determination which determination the Trustee shall
be entitled to conclusively rely upon. The Trustee may pay such third
party a reasonable fee. The reasonable costs of such Independent third
party appraisals, all inspection reports and broker opinions of value,
reasonably incurred by the Trustee or any such third party pursuant to
this paragraph shall be advanced by the Servicer and shall constitute, and
be reimbursable as, Servicing Advances. In connection with the Trustee's
designating an Independent third party, the Special Servicer shall deliver
to the Trustee for such Independent third party's use the Determination
Information.
In the event the Servicer or any designated third party, as
applicable, determines that the Option Price is less than the fair value
of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon in
making such determination, to the Special Servicer, who may then adjust
its fair value determination and, consequently, the Option Price, pursuant
to Section 3.18(a)(i). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to clause (iii)
above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close
the purchase of the Defaulted Mortgage Loan. Upon notice from such Option
Holder, or the Special Servicer, that such Option Holder rejects the
Option Price as adjusted, the Servicer and the Trustee shall provide the
notices described in the second paragraph of clause (v) below and
thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Servicer within ten (10)
Business Days of its receipt of the Servicer's notice confirming that the
exercise of its Purchase Option is effective. Upon receipt of an Officer's
Certificate from the Servicer specifying the date for closing the purchase
of the related Defaulted Mortgage Loan, and the purchase price to be paid
therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be provided to it by such Option Holder
and are reasonably necessary to vest in the purchaser or any designee
thereof the ownership of such Mortgage Loan on a servicing released basis.
In connection with any such purchase by any Person other than it, the
Special Servicer shall deliver the related Mortgage File to or at the
direction of the purchaser. In any case, the Servicer shall deposit the
purchase price (except that portion of any purchase price constituting
Gain-on-Sale Proceeds which shall be deposited in the Gain-on-Sale Reserve
Account) into the Certificate Account within one (1) Business Day
following the closing of the sale of the related Defaulted Mortgage Loan.
The Servicer shall immediately notify the Trustee and the Special
Servicer upon the holder of the effective Purchase Option's failure to
remit the purchase price specified in its Purchase Option Notice pursuant
to this clause (v). Thereafter, the Trustee shall notify each Option
Holder of such failure and any Option Holder may then exercise its
purchase option in accordance with this Section 3.18(a).
(vi) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised, the Special Servicer shall pursue
such other resolution strategies with respect to such Defaulted Mortgage
Loan, including, without limitation, workout and foreclosure, as the
Special Servicer may deem appropriate, consistent with the Asset Status
Report and Servicing Standards; provided, however, the Special Servicer
shall not sell any Defaulted Mortgage Loan (other than in connection with
exercise of a related Purchase Option or as otherwise permitted in this
Section 3.18).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor) (in the case of a Loan Pair, such purchase shall be a
purchase of the entire REO Property, including the portion relating to the
Companion Loans). The Special Servicer may also offer to sell to any Person any
REO Property (in the case of a Loan Pair, such sale shall be a sale of the
entire REO Property, including the portion relating to the Companion Loans), 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 and the Companion Holders. The Special Servicer shall give the Trustee, the
Servicer and the Directing Certificateholder not less than five (5) Business
Days' prior written notice of the Purchase Price and its intention to (i)
purchase any REO Property at the Purchase Price therefor or (ii) sell any REO
Property, in which case the Special Servicer shall accept the highest offer
received from any Person for any REO Property in an amount at least equal to the
Purchase Price therefor. To the extent permitted by applicable law, and subject
to 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
bidder is a Person other than an Interested Person, or if such price is
determined to be such a price by the Trustee, if the highest bidder is an
Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates
may make an offer for or purchase any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with Servicing Standards, that
rejection of such offer would be in the best interests of the
Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the Servicing Standards, 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 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 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 and the Companion Holders in negotiating and
taking any other action necessary or appropriate in connection with the
sale of any REO Property, including the collection of all amounts payable
in connection therewith. A sale of any REO Property shall be without
recourse to, or representation or warranty by, the Trustee, the Depositor,
the Servicer, the Special Servicer, the Fiscal Agent 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 Servicer, the Special
Servicer, the Depositor, the Fiscal Agent nor the Trustee shall have any
liability to the Trust Fund or any Certificateholder or Companion Holder
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, the Companion
Holder, other than the Grace Building Companion Noteholder, will have the right
to purchase the related AB Mortgage Loan, as applicable, or related REO
Property. With respect to each AB Mortgage Loan, such right of the Companion
Holder shall be given priority over any provision described in this Section
3.18. If the AB Mortgage Loan or REO Property is purchased by the Companion
Holder (other than the Grace Building Companion Noteholder), 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.
(e) In the event the Servicer or the Special Servicer has the right
to purchase any Companion Loan on behalf of the Trust pursuant to the related
Intercreditor Agreement, neither the Servicer nor the Special Servicer shall
exercise such right.
(f) If the Grace Building Mortgage Loan is (i) a Specially Serviced
Mortgage Loan and (ii) any Monthly Payment is at least 60 days delinquent, then
the Special Servicer shall promptly notify in writing the Servicer and the
Trustee, and the Servicer (as Companion Paying Agent), following its receipt of
such notice, shall promptly notify the Grace Building B Noteholders. Upon
receipt of such notice, a designee of the Grace Building B Noteholders will have
the first exclusive option for the time period set forth in the Grace Building
Co-Lender Agreement, but not the obligation, to purchase the Grace Building
Mortgage Loan from the Trust Fund pursuant to the terms of the Grace Building
Co-Lender Agreement; provided that if the Grace Building Mortgage Loan is
purchased, the Grace Building Senior Companion Notes shall also be purchased
and, in any event the Grace Building Mortgage Loan and the Grace Building Senior
Companion Notes shall not be so sold unless such designee pays an amount equal
to the aggregate purchase price for such mortgage loans as is specified in the
Grace Building Co-Lender Agreement. With respect to the Grace Building Mortgage
Loan, such option of the Grace Building B Noteholders shall be given priority
over any provision described in this Section 3.18. If the Grace Building
Controlling Holder does not exercise such option pursuant to the terms of the
Grace Building Co-Lender Agreement, then the Grace Building Mortgage Loan may be
sold in accordance with this Section 3.18; provided, however, that
notwithstanding any such sale, the Grace Building Whole Loan shall thereafter
continue to be serviced and administered under this Agreement if the holders of
the Grace Building Senior Notes so elect until such time as a separate servicing
agreement is entered into in accordance with the Grace Building Co-Lender
Agreement.
(g) With respect to the Grace Building Whole Loan, if in connection
with a purchase by the Grace Building B Noteholders of the Grace Building
Mortgage Loan pursuant to Section 4.03 of the Grace Building Co-Lender
Agreement, the Servicer or Special Servicer, as applicable, approves in its sole
discretion the exclusion of outstanding Advances (together with unpaid advance
interest thereon) and unpaid servicing compensation due to the Servicer or
Special Servicer, as applicable, from the Purchase Price, the Servicer or
Special Servicer, as applicable, shall waive its rights to claim such amounts
from the Trust.
Section 3.19 Additional Obligations of Servicer and Special
Servicer. (a) The Servicer shall deliver all Compensating Interest Payments to
the Trustee for deposit in the Distribution Account on each P&I Advance Date,
without any right of reimbursement therefor.
(b) The Servicer shall provide to each Companion Holder any reports
or notices required to be delivered to such Companion Holder pursuant to the
related Intercreditor Agreement.
(c) 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 and available for
distribution on the next Distribution Date, the Servicer, the Trustee or the
Fiscal Agent, each at its own option and in its sole discretion, 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 period not to
exceed 12 months. If the Servicer (or the Trustee or the Fiscal Agent) 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 payable first from principal collections
as described above prior to payment from other collections). In connection with
a potential election by the Servicer (or the Trustee or the Fiscal Agent) 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 or
the Fiscal Agent) shall further be authorized to wait for principal collections
on the Mortgage Loans 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, the Trustee or the Fiscal Agent, 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, the Trustee or the Fiscal Agent, as applicable, shall use its
reasonable efforts to give S&P and Fitch (and, with respect to the Grace
Building Whole Loan, Xxxxx'x, if any of the Grace Building Companion Loan
Securities are rated by Xxxxx'x) 15 days' notice of such determination, unless
extraordinary circumstances make such notice impractical. Nothing herein shall
give the Servicer, the Trustee or the Fiscal Agent 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).
The foregoing shall not, however, be construed to limit any
liability that may otherwise be imposed on such Person for any failure by such
Person to comply with the conditions to making such an election under this
section or to comply with the terms of this section and the other provisions of
this Agreement that apply once such an election, if any, has been made. If the
Servicer, the Trustee or the Fiscal Agent, as applicable, determines, in its
sole discretion, that its ability to fully recover the Nonrecoverable Advances
has been compromised, then the Servicer, the Trustee or the Fiscal Agent, as
applicable, shall be entitled to immediate reimbursement of Nonrecoverable
Advances with interest thereon at the Reimbursement Rate from all amounts in the
Certificate Account for such Distribution Date (deemed first from principal and
then interest). 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 at the Reimbursement Rate on such Nonrecoverable Advance for
the period prior to the actual reimbursement of such Nonrecoverable Advance. The
Servicer's or the Trustee's, as applicable, agreement to defer reimbursement of
such Nonrecoverable Advances as set forth above is an accommodation to the
Certificateholders and shall not be construed as an obligation on the part of
the Servicer, the Trustee or the Fiscal Agent, as applicable, or a right of the
Certificateholders. Nothing herein shall be deemed to create in the
Certificateholders a right to prior payment of distributions over the
Servicer's, the Trustee's or the Fiscal Agent's, as applicable, right to
reimbursement for Advances (deferred or otherwise). In all events, the decision
to defer reimbursement or to seek immediate reimbursement of Nonrecoverable
Advances shall be deemed to be in accordance with the Servicing Standard and
none of the Servicer, the Trustee, the Fiscal Agent 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 section or for any losses, damages or
other adverse economic or other effects that may arise from such an election.
Section 3.20 Modifications, Waivers, Amendments and Consents. (a)
Except as set forth in Section 3.08(a), Section 3.08(b), Section 3.08(f) and
Section 6.07, further below in this Section 3.20(a), Section 3.20(d), and
Section 3.20(j), but subject to any other conditions set forth thereunder, and,
with respect to an AB Mortgage Loan, subject to the rights of the related
Companion Holder to advise the Servicer with respect to, or consent to, a
modification, waiver or amendment pursuant to the terms of the related
Intercreditor Agreement, the Servicer shall not modify, waive or amend a
Mortgage Loan and/or a Companion Loan without the prior written consent of the
Special Servicer; provided that, the Servicer shall forward to the Special
Servicer requests to extend the maturity date of a Mortgage Loan and/or
Companion 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 nor shall the Maturity Date be extended to a
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 or, to the extent
consistent with the Servicing Standards giving due consideration to the
remaining term of the ground lease, ten years, prior to the expiration of such
leasehold estate. If such extension would extend the Maturity Date of a Mortgage
Loan and/or Companion Loan for more than twelve months from and after the
original Maturity Date of such mortgage loan and the mortgage loan is not in
default or default with respect thereto is not reasonably foreseeable, the
Servicer must provide the Trustee, the Special Servicer and the Directing
Certificateholders and, with respect to the Grace Building Whole Loan, the Grace
Building Senior Companion Noteholders with an Opinion of Counsel (at the expense
of the related Mortgagor) that such extension would not constitute a
"significant modification" of the mortgage loan within the meaning of Treasury
Regulations Section 1.860G-2(b). Notwithstanding the foregoing, the Servicer,
without the consent of the Special Servicer, may modify or amend the terms of
any Mortgage Loan and/or Companion 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 and the Mortgage Loan or Companion Loan
documents, 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 and/or Companion
Loan is not in default pursuant to the terms of the related Mortgage Loan and/or
Companion 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
and Grace Building Companion Noteholders with respect to the Grace Building
Companion Notes) a written confirmation that such substitution will not cause a
downgrade, qualification or withdrawal of the then current rating assigned to
any of the Certificates or Grace Building Companion Loan Securities and, insofar
as there is then outstanding any class of Grace Building Companion Loan
Securities that is then rated by Xxxxx'x, the Special Servicer shall have
received confirmation from Xxxxx'x in writing that the then current rating
assigned to any of the Grace Building Companion Loan Securities that are
currently rated by Xxxxx'x will not be qualified, downgraded or withdrawn by
reason of such substitution 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 and/or Companion Loan within the meaning of
Treasury Regulations Section 1.860G-2(b).
Notwithstanding the foregoing, with respect to the Grace Building
Whole Loan, prior to the occurrence and continuance of a Grace Building Control
Appraisal Event, (i) the Grace Building B Note Representative, in lieu of the
Directing Certificateholder, shall be entitled to take all actions and receive
all notices under this Section that the Directing Certificateholder is otherwise
entitled to take, (ii) any references to the Directing Certificateholder in this
Section shall be deemed to be references to the Grace Building B Note
Representative and (iii) the Servicer and the Special Servicer shall, with
respect to the proposed modification, follow the notice and approval procedures
specified in Section 3.29. Following the occurrence and during the continuance
of a Grace Building Control Appraisal Event, the Grace Building Majority Senior
Holders shall be entitled to take all actions and receive all notices in
connection with the Grace Building Whole Loan pursuant to the procedures set
forth in the Grace Building Co-Lender Agreement. However, in the event that the
Grace Building Majority Senior Holders cannot agree on a course of action within
30 days after receipt of a request for consent to any action, the Servicer or
Special Servicer, as applicable, shall implement the action or inaction that it
deems in accordance with the Servicing Standards.
(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 and/or Companion 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) to the Trust and, if applicable, the Companion
Holders as the holders of such Companion Loans 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), (y)
the approval of the Directing Certificateholder as provided in Section 3.21 and
(z) with respect to an AB Mortgage Loan, the rights of the related Companion
Holder to advise the Special Servicer with respect to, or consent to, such
modification, waiver or amendment pursuant to the terms of the related
Intercreditor Agreement, and with respect to the Grace Building Whole Loan, the
rights of the Grace Building Directing Holder. Notwithstanding anything to the
contrary in this Section, to the extent consistent with the Servicing Standards
and the Grace Building Co-Lender Agreement (taking into account the extent to
which the Grace Building Senior Companion Notes are pari passu with the Grace
Building Mortgage Loan and that the Grace Building B Notes are subordinate to
the Grace Building Mortgage Loan and the Grace Building Senior Companion Notes):
(i) no waiver, reduction or deferral of any particular amounts due on the Grace
Building Mortgage Loan or Grace Building Senior Companion Note, as applicable,
shall be effected prior to the waiver, reduction or deferral of the entire
corresponding item in respect of the Grace Building B Notes; and (ii) no
reduction of the Mortgage Rate on the Grace Building Mortgage Loan or Grace
Building Senior Companion Note shall be effected prior to the reduction of the
Mortgage Rate of the Grace Building B Notes, to the maximum extent possible.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would:
(i) extend the maturity date of any such Specially Serviced Mortgage
Loan to a date occurring later than the earlier of (a) two years prior to
the Rated Final Distribution Date and (b) if such Specially Serviced
Mortgage Loan is secured by a leasehold estate and not also the related
fee interest, the date occurring twenty years prior to the expiration of
such leasehold; or
(ii) provide for the deferral of interest unless (a) interest
accrues thereon, generally, at the related Mortgage Rate and (b) the
aggregate amount of such deferred interest does not exceed 10% of the
unpaid principal balance of the Specially Serviced Mortgage Loan.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan and/or Companion 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 or Companion Loan, as
applicable (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 or Companion Loan that is not in default or as to which default is
not reasonably foreseeable only if it provides the Trustee and, if the Grace
Building Whole Loan is involved, the Grace Building Companion Noteholders with
an Opinion of Counsel (at the expense of the related Mortgagor or such other
Person requesting such modification or, if such expense cannot be collected from
the related Mortgagor or such other Person, to be paid by the Servicer or
Special Servicer as a Servicing Advance) to the effect that the contemplated
waiver, modification or amendment (i) will not be a "significant modification"
of the Mortgage Loan within the meaning of Treasury Regulations Section
1.860G-2(b) and (ii) will not cause (x) either the Lower-Tier REMIC or the
Upper-Tier REMIC or, insofar as a Grace Building Senior Companion Note is then
included in a commercial mortgage securitization trust with respect to the whole
or any portion of which a REMIC election has been or will be made, such whole or
portion to fail to qualify as a REMIC for purposes of the Code or (y) either the
Lower-Tier REMIC or the Upper-Tier REMIC or, if applicable, such whole or
portion 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 or Companion Loan that is not a Specially Serviced Mortgage
Loan.
(e) In the event of a modification which creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
pursuant to Section 4.06.
(f) Subject to Section 3.20(c), the Servicer and the Special
Servicer each may, as a condition to its granting any request by a Mortgagor for
consent, modification (including extensions), waiver or indulgence or any other
matter or thing, the granting of which is within the Servicer's or the Special
Servicer's, as the case may be, discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan or Companion 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 and/or Companion Loans entered into pursuant to this
Section 3.20 shall be in writing, signed by the Servicer or the Special
Servicer, as the case may be, and the related Mortgagor (and by any guarantor of
the related Mortgage Loan, if such guarantor's signature is required by the
Special Servicer in accordance with the Servicing Standards).
(h) Each of the Servicer and the Special Servicer shall notify the
Rating Agencies, the Trustee, the Directing Certificateholder (and in the case
of the Grace Building Whole Loan, the Grace Building Companion Noteholders) and
each other in writing of any modification, waiver or amendment of any term of
any Mortgage Loan or Companion Loan and the date thereof, and shall deliver to
the Trustee or the related Custodian for deposit in the related Mortgage File,
an original counterpart of the agreement relating to such modification, waiver
or amendment, promptly (and in any event within 10 Business Days) following the
execution thereof. Following receipt of the Servicer's or the Special
Servicer's, as applicable, delivery of the aforesaid modification, waiver or
amendment to the Trustee, the Trustee shall forward a copy thereof to each
Holder of a Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class P and Class NR Certificate and each Grace Building Companion Noteholder
upon request.
(i) [RESERVED].
(j) Notwithstanding the foregoing, neither the Servicer nor the
Special Servicer shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan or the Grace Building
Whole Loan (or any portion thereof) unless such defeasance complies with
Treasury Regulations Section 1.860G-2(a)(8) and the Servicer or the Special
Servicer, as applicable, has received (i) a certificate of an Independent
certified public accountant to the effect that such substituted property will
provide cash flows sufficient to meet all payments of interest and principal
(including payments at maturity) on such Mortgage Loan or the Grace Building
Whole Loan (or portion thereof) in compliance with the requirements of the terms
of the related Mortgage Loan documents and, if applicable, Companion Loan
documents, (ii) one or more Opinions of Counsel (at the expense of the related
Mortgagor) to the effect that the Trustee, on behalf of the Trust Fund, will
have a first priority perfected security interest in such substituted Mortgaged
Property; provided, however, that, to the extent consistent with the related
Mortgage Loan documents and, if applicable, Companion Loan documents, the
related Mortgagor shall pay the cost of any such opinion as a condition to
granting such defeasance, (iii) to the extent consistent with the related
Mortgage Loan documents, the Mortgagor shall establish a single purpose entity
to act as a successor Mortgagor, if so required by the Rating Agencies or,
insofar as there is then outstanding any class of Grace Building Companion Loan
Securities that is then rated by Xxxxx'x, by Xxxxx'x, (iv) to the extent
permissible under the related Mortgage Loan documents and, if applicable,
Companion Loan documents, the Servicer shall use its reasonable efforts to
require the related Mortgagor to pay all costs of such defeasance, including but
not limited to the cost of maintaining any successor Mortgagor and (v) to the
extent permissible under the Mortgage Loan documents and, if applicable,
Companion Loan documents, the Servicer shall obtain, at the expense of the
related Mortgagor, written confirmation from the Rating Agencies that such
defeasance will not cause the downgrade, withdrawal or modification of the then
current ratings of the Certificates (or, insofar as there is then outstanding
any class of Grace Building Companion Loan Securities that is then rated by such
Rating Agency, such class of securities) or, insofar as there is then
outstanding any class of Grace Building Companion Loan Securities that is then
rated by Xxxxx'x, written confirmation of the then-current rating assigned by
Xxxxx'x to such class of securities; provided, however, that no such
confirmation shall be required for any Mortgage Loan which (together with any
Mortgage 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, so long as such Mortgage Loan is not one of the ten largest
Mortgage Loans by Stated Principal Balance.
(k) Notwithstanding anything herein or in the related Mortgage Loan
documents and, if applicable Companion Loan documents to the contrary, the
Servicer or the Special Servicer may permit the substitution of "government
securities," within the meaning of Section 2(a)(16) of the Investment Company
Act of 1940, that comply with Treasury Regulations Section 1.860G-2(a)(8) for
any Mortgaged Property pursuant to the defeasance provisions of any Mortgage
Loan or the Grace Building Whole Loan, as applicable (or any portion thereof),
in lieu of the defeasance collateral specified in the related Mortgage Loan or
Companion Loan documents; provided that the Servicer or the Special Servicer
reasonably determines that allowing their use would not cause a default or event
of default to become reasonably foreseeable and the Servicer or the Special
Servicer receives an Opinion of Counsel (at the expense of the Mortgagor to the
extent permitted under the Mortgage Loan documents and, if applicable, Companion
Loan documents) to the effect that such use would not be and would not
constitute a "significant modification" of such Mortgage Loan or Companion Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise
constitute an Adverse REMIC Event with respect to any REMIC or a similar event
involving any commercial mortgage securitization trust that holds a Grace
Building Companion Note and provided further that the requirements set forth in
Section 3.20(j) (including the ratings confirmations) are satisfied; and further
provided that such securities are backed by the full faith and credit of the
United States government, or the Servicer or the Special Servicer shall obtain a
written confirmation of each Rating Agency that the use of such securities will
not result in the downgrade, withdrawal or qualification of the then current
ratings of any Class of Certificates outstanding (or, insofar as there is then
outstanding any class of Grace Building Companion Loan Securities that is then
rated by such Rating Agency, such class of securities) or, insofar as there is
then outstanding any class of Grace Building Companion Loan Securities that is
then rated by Xxxxx'x, written confirmation of the then-current rating assigned
by Xxxxx'x to such class of securities.
(l) If required under the related Mortgage Loan or Companion 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 or Companion 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, 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 or Companion 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 or Companion 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 (or 366 days in the case of a leap
year).
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 or
Companion Loan, the Servicer or the Special Servicer, as applicable, shall
promptly give notice to the Servicer or the Special Servicer, as applicable, and
the Directing Certificateholder thereof, and the Servicer 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 and, if
applicable, the related Companion Loan(s) until the Special Servicer has
commenced the servicing of such Mortgage Loan and, if applicable, the related
Companion Loan. The Servicer shall deliver to the Trustee and the Directing
Certificateholder (and in the case of the Grace Building Whole Loan, the Grace
Building Companion Noteholders) a copy of the notice of such Servicing Transfer
Event provided by the Servicer to the Special Servicer, or by the Special
Servicer to the Servicer, pursuant to this Section. The Trustee shall deliver to
each Controlling Class Certificateholder a copy of the notice of such Servicing
Transfer Event provided by the Servicer pursuant to this Section.
Upon determining that a Specially Serviced Mortgage Loan or
Companion Loan (other than an REO Loan) has become current and has remained
current for three consecutive Monthly Payments (provided that (i) no additional
Servicing Transfer Event is foreseeable in the reasonable judgment of the
Special Servicer, and (ii) for such purposes taking into account any
modification or amendment of such Mortgage Loan and, if applicable, the related
Companion Loan(s)), and that no other Servicing Transfer Event is continuing
with respect thereto, the Special Servicer shall immediately give notice thereof
to the Servicer and the Directing Certificateholder (and in the case of the
Grace Building Whole Loan, the Grace Building Companion Noteholders), 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 Companion Loan, shall
recommence.
(b) In servicing any Specially Serviced Mortgage Loans and Companion
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 or Companion
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 Companion Loans and REO Properties and shall provide
the Special Servicer with any information in its possession with respect to such
records to enable the Special Servicer to perform its duties under this
Agreement, provided that this statement shall not be construed to require the
Servicer to produce any additional reports.
(d) No later than 45 days after a Servicing Transfer Event for a
Mortgage Loan and, if applicable, the Companion Loan, the Special Servicer shall
deliver to the Servicer, each Rating Agency, the Trustee and the Directing
Certificateholder, and with respect to the Grace Building Whole Loan, the Grace
Building Directing Holder, a report (the "Asset Status Report") with respect to
such Mortgage Loan or Companion Loan and the related Mortgaged Property;
provided, however, the Special Servicer shall not be required to deliver an
Asset Status Report to the Directing Certificateholder if they are the same
entity. Such Asset Status Report shall set forth the following information to
the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Servicer for regular servicing or otherwise realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder (or with respect to the Grace Building Whole Loan,
the Grace Building Directing Holder), 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, the Rating Agencies, the
Mortgage Loan Sellers, the Trustee and the Servicer a new Asset Status Report as
soon as practicable, but in no event later than 30 days after such disapproval.
The Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(d) until the Directing Certificateholder 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, subject to the rights of
the related Companion Holder pursuant to the related Intercreditor Agreement, if
applicable, 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 a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders or, if a Loan Pair is
involved, the Companion Holder, and it has made a reasonable effort to contact
the Directing Certificateholder (or Grace Building Directing Holder, as
applicable) 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.
Notwithstanding the foregoing, with respect to the Grace Building
Whole Loan, prior to the occurrence and continuance of a Grace Building Control
Appraisal Event, (i) the Grace Building B Note Representative, in lieu of the
Directing Certificateholder, shall be entitled to take all actions and receive
all notices under this Section 3.21 that the Directing Certificateholder is
otherwise entitled to take or receive, (ii) any references to the Directing
Certificateholder in this Section shall be deemed to be references to the Grace
Building B Note Representative and (iii) the Servicer and the Special Servicer
shall, with respect to the proposed action, follow the notice and approval
procedures specified in this Section 3.21. Following the occurrence and during
the continuance of a Grace Building Control Appraisal Event, the Grace Building
Majority Senior Holders shall exercise such rights in connection with the Grace
Building Whole Loan pursuant to the procedures set forth in the Grace Building
Co-Lender Agreement.
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 or disapproval of the Directing Certificateholder (or
with respect to the Grace Building Whole Loan, the Grace Building Directing
Holder) shall (a) require or cause the Special Servicer to violate the terms of
a Specially Serviced Mortgage Loan, applicable law or any provision of this
Agreement, including the Special Servicer's obligation to act in accordance with
the Servicing Standards and to maintain the REMIC status of each of the
Lower-Tier REMIC and the Upper-Tier REMIC or, insofar as a Grace Building Senior
Companion Note is then included in a commercial mortgage securitization trust
with respect to the whole or any portion of which a REMIC election has been or
will be made, such whole or portion, or (b) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (c) expose the Servicer, the Special Servicer, the Depositor, the
Mortgage Loan Sellers, the Trust Fund, the Trustee or their respective officers,
directors, employees or agents to any claim, suit or liability or (d) materially
expand the scope of the Special Servicer's, Trustee's or the Servicer's
responsibilities under this Agreement.
(e) Upon receiving notice of (i) the occurrence of the events
described in clause (iv) of the definition of Servicing Transfer Event (without
regard to the 60 day period set forth therein), or (ii) the request by a
Mortgagor for the amendment or modification of a Mortgage Loan or Companion Loan
which is not a Specially Serviced Mortgage Loan for which the Special Servicer
is responsible for such amendment or modification pursuant to Section 3.08 and
Section 3.20, the Servicer shall with reasonable promptness give notice thereof,
and shall use its reasonable efforts to provide the Special Servicer with all
information relating to the Mortgage Loan or Companion Loan and reasonably
requested by the Special Servicer to enable it to negotiate with the related
Mortgagor and prepare for any such proceedings. The Servicer shall use its
reasonable efforts to comply with the preceding sentence within 5 Business Days
of the occurrence of each such event.
Section 3.22 Sub-Servicing Agreements. (a) The Servicer may enter
into Sub-Servicing Agreements to provide for the performance by third parties of
any or all of its respective obligations under Articles III and IV hereof;
provided that the Sub-Servicing Agreement as amended or modified: (i) is
consistent with this Agreement in all material respects and requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement;
(ii) provides that if the Servicer shall for any reason no longer act in such
capacity hereunder (including, without limitation, by reason of an Event of
Default), the Trustee or its designee shall thereupon assume all of the rights
and, except to the extent they arose prior to the date of assumption,
obligations of the Servicer under such agreement, or, alternatively, may act in
accordance with Section 7.02 hereof under the circumstances described therein
(subject to Section 3.22(g) hereof); (iii) provides that the Trustee for the
benefit of the Certificateholders, 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, 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 designees as contemplated by Section 3.22(g) hereof and in such
additional manner as is provided in such Sub-Servicing Agreement; (v) does not
permit the Sub-Servicer any direct rights of indemnification that may be
satisfied out of assets of the Trust Fund and (vi) does not permit the
Sub-Servicer to modify any Mortgage Loan unless and to the extent the Servicer
is permitted hereunder to modify such Mortgage Loan. 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 but need not 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 (if the
Sub-Servicing Agreement provides for Advances by the Sub-Servicer, although it
need not so 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 (if the Sub-Servicing Agreement provides for Advances by the
Sub-Servicer, although it need not so provide) 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, in such event, 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 as may be provided (if at all) 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 that the Servicer need not provide such notice as to the Initial
Sub-Servicing Agreements.
(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 and, if applicable, Companion 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 responsible to
the Trustee, Special Servicer, holders of the Companion Loans serviced hereunder
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 as and when due 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
or any other contrary provision in this Agreement, the Trustee and any successor
Servicer shall assume each Initial Sub-Servicing Agreement and (i) the Initial
Sub-Servicer's rights and obligations under the Initial Sub-Servicing Agreement
shall expressly survive a termination of the Servicer's servicing rights under
this Agreement; provided that the Initial Sub-Servicing Agreement has not been
terminated in accordance with its provisions; (ii) any successor Servicer,
including, without limitation, the Trustee (if it assumes the servicing
obligations of the Servicer) shall be deemed to automatically assume and agree
to the then-current Initial Sub-Servicing Agreement without further action upon
becoming the successor Servicer and (iii) this Agreement may not be modified in
any manner which would increase the obligations or limit the rights of the
Initial Sub-Servicer hereunder and/or under the Initial Sub-Servicing Agreement,
without the prior written consent of the Initial Sub-Servicer (which consent
shall not be unreasonably withheld). If the Trustee (acting at the direction of
any Grace Building Senior Companion Noteholder) is required to appoint a
Sub-Servicer (which shall be acceptable to the Grace Building Majority Senior
Holders) for the Grace Building Whole Loan pursuant to the last paragraph of
Section 7.01(a), the Sub-Servicer (in the event of a default on the part of the
Servicer and not the Initial Sub-Servicer with respect to the Grace Building
Whole Loan) will be responsible for all of the servicing obligations of the
Servicer with respect to the Grace Building Whole Loan under this Agreement and
the Grace Building Co-Lender Agreement. Such Sub-Servicer shall receive any
servicing compensation that the Servicer was entitled to for servicing the Grace
Building Whole Loan. Any such Sub-Servicer appointed shall be required to
succeed to and assume the rights and duties of the Servicer under the Initial
Sub-Servicing Agreement for the Grace Building Whole Loan (unless such agreement
has been terminated in accordance with its terms). Neither the requirement to
make such appointment nor the appointment itself shall in any event expand,
limit or otherwise modify the relative rights and duties of the "Servicer" or
"Initial-Sub-Servicer" under the Initial Sub-Servicing Agreement relating to the
Grace Building Whole Loan as construed without regard to this provision, and the
replaced Servicer will no longer have any duties or obligations under Initial
Sub-Servicing Agreement going forward. Notwithstanding the foregoing, if a Grace
Building Companion Default constitutes or results from an event of default of
the Initial Sub-Servicer under the Initial Sub-Servicing Agreement (or a
successor Sub-Servicer under a successor subservicing agreement) with respect to
the Grace Building Whole Loan, in lieu of the provisions above, the Servicer
shall (if so directed by any Grace Building Senior Companion Noteholder)
terminate such Sub-Servicing Agreement and appoint a replacement Sub-Servicer
(acceptable to the Grace Building Majority Senior Holders) to perform the
duties, and receive the benefits (including the sub-servicing compensation,
which shall be paid by the Servicer, or the person appointed to perform its
duties as provided in the preceding sentence, from its servicing compensation)
of the Initial Sub-Servicer with respect to the Grace Building Whole Loan.
(h) The Special Servicer shall comply with the terms of each such
Sub-Servicing Agreement to the extent the terms thereof are not inconsistent
with the terms of this Agreement and the Special Servicer's obligations
hereunder. With respect to Mortgage Loans subject to a Sub-Servicing Agreement,
the Special Servicer shall, among other things, remit amounts, deliver reports
and information, and afford access to facilities and information to the related
Sub-Servicer that would be required to be remitted, delivered or afforded, as
the case may be, to the Servicer pursuant to the terms hereof (and within the
same period of time required herein), but in any event within a sufficient
period of time to allow the Sub-Servicer to fulfill its obligations under such
Sub-Servicing Agreement and in no event later than 1 Business Day prior to the
applicable Determination Date (or such other date as specified herein).
(i) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not enter into any sub-servicing agreement which provides
for the performance by third parties of any or all of its obligations herein.
Section 3.23 [RESERVED].
Section 3.24 Representations, Warranties and Covenants of the
Servicer. (a) The Servicer hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, the Grace Building
Companion Noteholders and to the Depositor, the Fiscal 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,
(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 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 3.25 Representations, Warranties and Covenants of the
Special Servicer. (a) The Special Servicer hereby represents, warrants and
covenants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Grace Building Companion Noteholders, the Depositor, the
Fiscal Agent and the Servicer, as of the Closing Date, that:
(i) The Special Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, does not (A) violate the Special
Servicer's articles of incorporation and by-laws or (B) constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or which is
applicable to it or any of its assets, or (C) violate any law, rule,
regulation, order, judgment or decree to which the Special Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or its financial
condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Servicer and the Depositor, constitutes a
valid, legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof, subject
to applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, municipal or governmental agency, which default, in
the Special Servicer's reasonable 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 could reasonably be
expected to materially and adversely affect the ability of the Special
Servicer to perform its obligations under this Agreement;
(vii) Each officer, manager or employee of the Special Servicer that
has or, following the occurrence of a Servicing Transfer Event, would have
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c);
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Special Servicer, or compliance by the Special Servicer
with, this Agreement or the consummation of the transactions of the
Special Servicer contemplated by this Agreement, except for any consent,
approval, authorization or order which has been obtained or can be
obtained prior to the actual performance by the Special Servicer of its
obligations under this Agreement, and which, if not obtained would not
have a materially adverse effect on the ability of the Special Servicer to
perform its obligations hereunder; and
(ix) The Special Servicer has full power and authority to enter into
and consummate all transactions to be performed by it contemplated by this
Agreement, has duly authorized the execution, delivery and performance by
it of this Agreement, and has duly executed and delivered this Agreement.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.26 Interest Reserve Account. (a) On each P&I Advance Date
relating to any Interest Accrual Period ending in any January and on any P&I
Advance Date which occurs in a year which is not a leap year relating to any
Interest Accrual Period ending in any December, the Trustee, in respect of the
Actual/360 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 Trustee shall
withdraw, from the Interest Reserve Account an amount equal to the Withheld
Amounts from the preceding January (if applicable) and February, if any, and
deposit such amount into the Lower-Tier Distribution Account.
Section 3.27 Excess Interest Distribution Account. Prior to the
applicable Distribution Date, the Servicer is required to remit to the Trustee
for deposit into the Excess Interest Distribution Account an amount equal to the
Excess Interest received during the related Due Period.
Section 3.28 Directing Certificateholder Contact with Servicer. No
less often than on a monthly basis, each of the Servicer and the Special
Servicer shall, without charge, make a knowledgeable Servicing Officer via
telephone available to verbally answer questions from the Directing
Certificateholder (and with respect to the Grace Building Whole Loan, the Grace
Building Senior Companion Noteholders)regarding the performance and servicing of
the Mortgage Loans and/or REO Properties for which the Servicer or the Special
Servicer, as the case may be, is responsible.
Section 3.29 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder. (a)
Each Controlling Class Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to provide its name and address to the
Trustee and to notify the Servicer, the Trustee and Special Servicer of the
transfer of any Certificate of a Controlling Class, the selection of a Directing
Certificateholder or the resignation or removal thereof. The Directing
Certificateholder is hereby deemed to have agreed by virtue of its purchase of a
Certificate to notify the Servicer, Special Servicer and Trustee when such
Certificateholder is appointed Directing Certificateholder and when it is
removed or resigns. To the extent there is only one Controlling Class
Certificateholder and it is also the Special Servicer, it shall be the Directing
Certificateholder.
(b) A "Controlling Class" as of any time of determination shall be
the Class outstanding with the most subordinate Class of Regular Certificates
having at least 25% of its initial Certificate Balance.
(c) Once a Directing Certificateholder has been selected, each of
the Servicer, the Special Servicer, the Depositor, the Trustee and each other
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Controlling Class
Certificateholders, by Certificate Balance, or such Directing Certificateholder
shall have notified the Servicer, Special Servicer, the Trustee and each other
Controlling Class Certificateholder, in writing, of the resignation of such
Directing Certificateholder or the selection of a new Directing
Certificateholder. Upon the resignation of a Directing Certificateholder, the
Trustee shall request the Controlling Class Certificateholders to select a new
Directing Certificateholder.
(d) 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) Upon request, the Trustee shall deliver to the Special Servicer
and the Servicer a list of each Controlling Class Certificateholder and the
Directing Certificateholder, including names and addresses. In addition to the
foregoing, within two (2) Business Days of receiving notice of the selection of
a new Directing Certificateholder or the existence of a new Controlling Class
Certificateholder, the Trustee shall notify the Servicer and the Special
Servicer. Notwithstanding the foregoing, ARCap CMBS Fund II REIT, Inc. shall be
the initial Directing Certificateholder and shall remain so until a successor is
appointed pursuant to the terms of this Agreement.
(f) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Trustee shall notify the related Certificateholders (through the
Depository) of such event.
(g) With respect to the Grace Building Whole Loan, the Grace
Building B Noteholders shall be entitled in accordance with this Section 3.29 to
select a representative (the "Grace Building B Note Representative"). However,
following the occurrence and during the continuance of a Grace Building Control
Appraisal Event, (i) the Grace Building B Note Representative shall not be
authorized to exercise any of its approval and consent rights in this Agreement
with respect to the Grace Building Whole Loan; and (ii) the majority of the
holders of the Directing Certificateholder and the holders of the Grace Building
Senior Companion Notes or if any such note has been securitized, a
representative appointed by the controlling class of that securitization (the
"Grace Building Majority Senior Holders") shall exercise such rights pursuant to
the procedures set forth in the Grace Building Co-Lender Agreement. The "Grace
Building Directing Holder" shall be (a) to the extent a Grace Building Control
Appraisal Event is not continuing, the Majority Note B Lenders as defined in the
Grace Building Co-Lender Agreement and (b) upon the occurrence and continuance
of a Grace Building Control Appraisal Event, the Grace Building Majority Senior
Holders. Upon (i) the receipt by the Trustee and the Companion Paying Agent of
written requests for the selection of a Grace Building B Note Representative
from the Grace Building B Noteholder or (ii) the resignation or removal of the
Person acting as Grace Building B Note Representative, the Companion Paying
Agent shall promptly notify the Depositor and the holders of the Grace Building
B Note that they may select a Grace Building B Note Representative. Such notice
shall set forth the process for selecting a Grace Building B Note
Representative, which shall be the designation of such Grace Building B Note
Representative by the Grace Building B Noteholders by a writing delivered to the
Trustee and the Companion Paying Agent. No appointment of any Person as a Grace
Building B Note Representative shall be effective until such Person provides the
Trustee and the Companion Paying Agent with written confirmation of its
acceptance of such appointment, an address and telecopy number for the delivery
of notices and other correspondence and a list of officers or employees of such
Person with whom the parties to this Agreement may deal (including their names,
titles, work addresses and telecopy numbers). The Companion Paying Agent shall
promptly provide such contact information relating to the Grace Building B Note
Representative to the Trustee, the Servicer and Special Servicer. Any Grace
Building B Note Representative appointed hereunder shall be automatically
removed in the event that any Holder of the Grace Building B Note or an
Affiliate of such Holder becomes the Grace Building Whole Loan borrower or
affiliate of the borrower under the Grace Building Whole Loan. Except as
otherwise agreed with the related Holder of the Grace Building B Note, no Grace
Building B Note Representative nor any Person (or any representative of any such
Person) who holds a Grace Building Senior Companion Note shall owe any fiduciary
duty to the Trustee, the Servicer, the Special Servicer or any
Certificateholder.
(h) Within ten (10) Business Days of receiving a request therefor
from the Servicer or Special Servicer, the Companion Paying Agent shall deliver
to the requesting party the identity of the Grace Building B Note Representative
and a list of the holders of the Grace Building B Notes, including, in each
case, names and addresses. With respect to such information, the Servicer and
the Special Servicer shall be entitled to rely on such information provided by
the Companion Paying Agent with respect to any obligation or right hereunder
that the Servicer and the Special Servicer may have to deliver information or
otherwise communicate with the Grace Building B Note Representative or the
Holders of the Grace Building B Notes. In addition to the foregoing, within two
(2) Business Days of the selection, resignation or removal of a Grace Building B
Note Representative, the Companion Paying Agent shall notify the other parties
to this Agreement of such event.
(i) A Grace Building B Note Representative may at any time resign as
such by giving written notice to the Trustee and the Companion Paying Agent and
to the holders of the Grace Building B Notes. The holders of the Grace Building
B Notes shall be entitled to remove any existing Grace Building B Note
Representative by giving written notice to the Trustee and the Companion Paying
Agent and to such existing Grace Building B Note Representative. The Companion
Paying Agent shall promptly notify the Trustee and Special Servicer with respect
to any Grace Building B Note Representative resignation or removal.
(j) Once a Grace Building B Note Representative has been selected
pursuant to this Section 3.29, each of the parties to this Agreement shall be
entitled to rely on such selection unless the holders of the Grace Building B
Notes shall have notified the Trustee and the Companion Paying Agent in writing,
of the resignation or removal of the Grace Building B Note Representative. Any
and all expenses of a Grace Building B Note Representative shall be borne by the
holders of the Grace Building B Notes, and not by the Trust. If no Grace
Building B Note Representative is in place, then the Majority Note B Lenders, as
defined in the Grace Building Co-Lender Agreement, shall be entitled to take all
actions that the Grace Building B Note Representative would otherwise be
entitled to take.
(k) All requirements of the Servicer and the Special Servicer to
provide notices, reports, statements or other information (including the access
to information on a website) with respect to the Grace Building Whole Loan to
the Directing Certificateholder or the Controlling Class Certificateholder
contained in this Agreement shall also apply to the Grace Building B Note
Representative and the Servicer and the Special Servicer shall also deliver or
make available such notices, reports, statements or other information that it
delivers or makes available to the Directing Certificateholder or Controlling
Class Certificateholder.
(l) All requirements of the Servicer and the Special Servicer to
provide notices, reports, statements or other information (including the access
to information on a website) provided to the Directing Certificateholder
contained in this Agreement shall also apply to each Companion Holder with
respect to information relating to the related AB Mortgage Loan or the Grace
Building Whole Loan, as applicable.
(m) Until it receives notice to the contrary, each of the Servicer,
the Special 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.
Section 3.30 Intercreditor Agreements. 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 such 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
and, in the event of any conflict, the related Intercreditor Agreement shall
govern. 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 or the Grace Building Directing Holder to the extent
that the related Intercreditor Agreement provides that such Companion Holder or
the Grace Building Directing Holder is required to consent to such action. Each
of the Servicer and Special Servicer acknowledges and agrees that each Companion
Holder or Grace Building B Noteholder or its designee has the right to cure
certain defaults with respect to the related AB Mortgage Loan or the Grace
Building Whole Loan, respectively, and to purchase the related AB Mortgage Loan
or the Grace Building Whole Loan, respectively, in each case pursuant to the
terms and conditions of the related Intercreditor Agreement.
Neither the Servicer nor the Special Servicer shall have any
liability for any cost, claim or damage that arises from any entitlement in
favor of a Companion Holder under the related Intercreditor Agreement or
conflict between the terms of this Agreement and the terms of such Intercreditor
Agreement. Notwithstanding any provision of any Intercreditor Agreement that may
otherwise require the Servicer or the Special Servicer to abide by any
instruction or direction of a Companion Holder, 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 any expense arising from
compliance with an Intercreditor Agreement constitute an expense to be borne by
the Servicer or Special Servicer for its own account without reimbursement. In
no event shall the Servicer or the Special Servicer be required to consult with
or obtain the consent of any Companion Holder unless such Companion Holder 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 is set forth in Section 11.05 under this
Agreement.
Section 3.31 Companion Paying Agent. (a) The applicable Servicer
shall be the initial Companion Paying Agent hereunder. The Companion Paying
Agent undertakes to perform such duties and only such duties as are specifically
set forth herein.
(b) No provision of this Agreement shall be construed to relieve the
Companion Paying Agent from liability for its negligent failure to act, bad
faith or its own willful misfeasance; provided, however, that the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement. The Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against the Companion
Paying Agent. In the absence of bad faith on the part of the Companion Paying
Agent, the Companion Paying Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to the Companion Paying Agent by any Person and which
on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the Servicer pursuant to
Article VII of this Agreement, the Companion Paying Agent shall be deemed
simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of the Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.32 Companion Register. The Companion Paying Agent shall
maintain a register (the "Companion Register") on which it will record the names
and address of, and wire transfer instructions for, the Companion Holders from
time to time, to the extent such information is provided in writing to it by
each Companion Holder. The initial Companion Holders, along with their
respective name, address, wiring instructions and tax identification number, are
listed on Exhibit S hereto. In the event a Companion Holder transfers a
Companion Loan without notice to the Companion Paying Agent, the Companion
Paying Agent shall have no liability for any misdirected payment in the
Companion Loan and shall have no obligation to recover and redirect such
payment.
The Companion Paying Agent shall promptly provide the name and
address of the Companion Holder to any party hereto or any successor Companion
Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such name
and address.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) On each Distribution Date, to the
extent of the Available Distribution Amount for such Distribution Date, the
Trustee shall be deemed to transfer the Lower-Tier 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 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, then (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 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, to 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 Trustee has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional Monthly Payments,
balloon payments or unscheduled principal payments are subsequently received by
the Servicer and required to be part of the Available Distribution Amount for
such Distribution Date, the Servicer shall promptly notify the Trustee and the
Trustee will use commercially reasonable efforts to cause DTC to make the
revised distribution on a timely basis on such Distribution Date. None of the
Servicer, the Special Servicer or the Trustee shall be liable or held
responsible for any resulting delay in the making of such distribution to
Certificateholders solely on the basis of the actions described in the preceding
sentence.
(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). 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 and its
related Component of the 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 Certificates shall be treated as having been
paid to the Components pro rata, based on the interest accrued with respect
thereto. 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 Trustee 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 equals the Certificate Balance of the Related Certificates
with respect thereto as adjusted for the allocation of Collateral Support
Deficits, as provided in Sections 4.04(b) and 4.04(c) and of Certificate
Deferred Interest as provided in Section 4.06. The initial principal balance of
each Uncertificated Lower-Tier Interest equals the respective Original
Lower-Tier Principal Amount. The pass-through rate with respect to each
Uncertificated Lower-Tier Interest will be the rate per annum set forth in the
Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier 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
(but only to the extent of the Available Distribution Amount for such
Distribution Date remaining in the Lower-Tier Distribution Account, if any).
(c) Notwithstanding the priorities set forth in clause (a) above, 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, pro rata, among the Class A-1, Class
A-1A, Class A-2, Class A-3 and Class A-4 Certificates 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.
(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(d)(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 Certificates. Any Yield Maintenance
Charge collected during the related Due Period remaining after such
distributions will be distributed to the Holders of the Class X Certificates.
(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 Certificates, Class F
Certificates, Class G Certificates 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
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(d)(i) shall first be deemed to be
distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect
of the Uncertificated Lower-Tier Interests, pro rata based upon the amount
of principal distributed in respect of each such Class of Uncertificated
Lower-Tier Interests for such Distribution Date pursuant to Section
4.01(b) above.
(e) On each Distribution Date, the Trustee shall withdraw amounts
from the Gain-on-Sale Reserve Account and shall distribute such amounts to
reimburse the Holders of the Regular Certificates (in order of alphabetical
Class designation) up to an amount equal to all Collateral Support Deficits, if
any, previously deemed allocated to them and unreimbursed after application of
the Available Distribution Amount for such Distribution Date. 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(g),
4.01(h) and 9.01, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates), or otherwise by check mailed to such
Certificateholder at its address in the Certificate Registrar. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Fiscal
Agent, the Certificate Registrar, the Depositor, the Servicer, the Special
Servicer or the Underwriters shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Trustee shall, no
later than the related P&I Advance Determination Date, mail to each Holder on
such date of such Class of Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the offices of the
Certificate Registrar or such other location therein specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) or Section 4.01(e), 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 Trustee shall
attempt to contact such prior Holder in the manner contemplated by Section
4.01(g) as if such Holder had failed to surrender its Certificates.
(i) On each Distribution Date, any Excess Interest received during
the related Due Period with respect to the Mortgage Loans shall be distributed
to the holders of the Class NR Certificates from the Excess Interest
Distribution Account.
(j) On the date as specified in the related Intercreditor Agreement,
with respect to the Mezz Cap B Loans, or, each Grace Building Remittance Date,
with respect to the Grace Building Companion Notes, the Companion Paying Agent
(based upon a statement of the Servicer to be delivered to 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(j)) shall make withdrawals
and payments from the Companion Distribution Account for each Companion Loan in
the following order of priority:
(i) to pay the Trustee or the Fiscal Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Section 8.05, to
the extent any such amounts relate solely to the Loan Pair related to such
Companion Loan, and such amounts are to be paid by the related Companion
Holder pursuant to the related Intercreditor Agreement;
(ii) to pay to the Servicer any amounts deposited by the Servicer in
the Companion Distribution Account not required to be deposited therein;
(iii) to pay all amounts remaining in the Companion Distribution
Account related to such Companion Loan to the related Companion Holder, in
accordance with the related Intercreditor Agreement, (or, with respect to
the Grace Building Companion Notes, on or before each related Grace
Building Remittance Date); and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01;
All distributions from the Companion Distribution Account required
hereunder shall be made by the Companion Paying Agent to the Companion Holder by
wire transfer in immediately available funds to the account of such Companion
Holder or an agent therefor appearing on the Companion Register on the related
Record Date (or, if no such account so appears or information relating thereto
is not provided at least five Business Days prior to the related Record Date, by
check sent by first-class mail to the address of such Companion Holder or its
agent appearing on the Companion Register). Any such account shall be located at
a commercial bank in the United States.
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s. (a) On each Distribution Date, the Trustee shall make
available to the general public a statement (substantially in the form set forth
as Exhibit G hereto and based on the information supplied to the Trustee in the
related CMSA Investor Reporting Package (IRP) in accordance with CMSA
guidelines) as to the distributions made on such Distribution Date (each, a
"Statement to Certificateholders") which shall include:
(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 together with
detailed calculations of servicing compensation paid to Servicer and
Special Servicer;
(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 Determination Date for such Distribution Date,
based on the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to (A) Yield Maintenance
Charges and (B) Excess Interest;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date, 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, the Fiscal Agent 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, the Special Servicer, the Fiscal Agent and the Trustee
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates; and
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date).
In the case of information furnished pursuant to clauses (i), (ii),
(xi), (xvi) and (xviii) above, the amounts shall be expressed as a dollar amount
in the aggregate for all Certificates of each applicable Class and per
Definitive Certificate.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Trustee deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time are in force.
On each Distribution Date, the Trustee shall make available to the
general public via its website initially located at "xxx.xxxxxxxx.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 and (iii) as a convenience to the general
public (and not in furtherance of the distribution thereof under the securities
laws), the prospectus supplement, the prospectus, and this Agreement.
The Trustee shall make available the Statement to Certificateholders
through its home page on the Internet. The Trustee hereby acknowledges and
agrees that its home page as of the date hereof is located at "xxx.xxxxxxxx.xxx"
on the world wide web. In addition, if the Depositor so directs the Trustee, and
on terms acceptable to the Trustee, the Trustee shall make certain other
information and reports related to the Mortgage Loans available through its
internet website.
The Trustee shall make available to the Companion Holders all
reports via its Internet Website that the Trustee has made available to
Certificateholders under this Agreement.
In addition, on each Distribution Date, the Trustee shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package" eight supplemental reports and the CMSA Operating Statement Analysis
Report and CMSA NOI Adjusted Worksheets and 7 CMSA data files, the Realized Loss
Report and the Monthly Additional Report on Recoveries and Reimbursements to the
extent delivered by the Servicer pursuant to this Agreement and the Trustee's
Exception Report as updated from time to time.
The Trustee makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its Internet website and assumes no responsibility therefor. In
addition, the Trustee may disclaim responsibility for any information
distributed by it for which it is not the original source.
In connection with providing access to the Trustee's Internet
website, the Trustee may require registration and the acceptance of a
disclaimer. The Trustee shall not be liable for the dissemination of information
in accordance herewith. Questions regarding the Trustee's Internet website can
be directed to the Trustee's CMBS customer service desk at (000) 000-0000.
The Servicer may, at its sole cost and expense, make available by
electronic media, bulletin board service or Internet website (in addition to
making information available as provided herein) any reports or other
information the Servicer is required or permitted to provide to any party to
this Agreement, the Rating Agencies or any Certificateholder or prospective
Certificateholder to the extent such action does not conflict with the terms of
this Agreement, the terms of the Mortgage Loans or applicable law.
Notwithstanding this paragraph, the availability of such information or reports
on the Internet or similar electronic media shall not be deemed to satisfy any
specific delivery requirements in this Agreement except as set forth herein. In
connection with providing access to the Servicer's Internet website, the
Servicer shall take reasonable measures to ensure that only such parties listed
above may access such information including, without limitation, requiring
registration, a confidentiality agreement and acceptance of a disclaimer. The
Servicer shall not be liable for dissemination of this information in accordance
with this Agreement, provided that such information otherwise meets the
requirements set forth herein with respect to the form and substance of such
information or reports. The Servicer shall be entitled to attach to any report
provided pursuant to this subsection, any reasonable disclaimer with respect to
information provided, or any assumptions required to be made by such report.
Notwithstanding anything herein to the contrary, the Servicer may, at its sole
cost and expense, make available by electronic media, bulletin board service or
Internet website any reports or other information the Servicer is required or
permitted to provide to any Mortgagor with respect to such Mortgagor's Mortgage
Loan to the extent such action does not conflict with the terms of this
Agreement, the terms of the Mortgage Loans or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Servicer) provide the Servicer with such
information in its possession regarding the Specially Serviced Mortgage Loans
and REO Properties as may be necessary for the Servicer to prepare each report
and any supplemental information to be provided by the Servicer to the Trustee.
Neither the Trustee nor the Depositor shall have any obligation to recompute,
verify or recalculate the information provided thereto by the Servicer. Unless
the Trustee has actual knowledge that any report or file received from the
Servicer contains erroneous information, the Trustee is authorized to rely
thereon in calculating and making distributions to Certificateholders in
accordance with Section 4.01, preparing the statements to Certificateholders
required by Section 4.02(a) and allocating Collateral Support Deficit to the
Certificates in accordance with Section 4.04.
Notwithstanding the foregoing, the failure of the Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Servicer
or the Special Servicer so fails because such disclosure, in the reasonable
belief of the Servicer or the Special Servicer, as the case may be, would
violate any applicable law or any provision of a Mortgage Loan document
prohibiting disclosure of information with respect to the Mortgage Loans or the
Mortgaged Properties. The Servicer or the Special Servicer may affix to any
information provided by it any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(c) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Trustee shall provide the
requesting Certificateholder with such information that is in the Trustee's
possession or can reasonably be obtained by the Trustee as is requested by such
Certificateholder, for purposes of satisfying applicable reporting requirements
under Rule 144A under the Securities Act. Neither the Certificate Registrar nor
the Trustee shall have any responsibility for the sufficiency under Rule 144A or
any other securities laws of any available information so furnished to any
person including any prospective purchaser of a Certificate or any interest
therein, nor for the content or accuracy of any information so furnished which
was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
(e) (i) The Trustee, the Servicer and the Special Servicer shall
reasonably cooperate with the Depositor in connection with the Trust's
satisfying (and in the case of the Servicer and the Special Servicer, with the
Grace Building Senior Companion Noteholders in connection with compliance with a
depositor of a related securitization trust, satisfying) the reporting
requirements under the Exchange Act. The Trustee shall prepare on behalf of the
Trust any Forms 8-K and 10-K customary for similar securities as required by the
Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission thereunder, and the Trustee shall sign and file (via the Securities
and Exchange Commission's Electronic Data Gathering and Retrieval System) such
Forms on behalf of the Depositor. The Depositor hereby grants to the Trustee a
limited power of attorney to execute and file each such documents on behalf of
the Depositor. Such power of attorney shall continue until the earlier of either
(i) receipt by the Trustee from the Depositor of written termination of such
power of attorney and (ii) the termination of the Trust. Notwithstanding the
foregoing, in the event that the Securities and Exchange Commission does not
accept a certification signed by the Depositor where the related Form 10-K is
signed by the Trustee on behalf of the Depositor, the Trustee should prepare
such Form 10-K to be signed by the Depositor and the Depositor shall sign such
form.
(ii) Each Form 8-K shall be filed by the Trustee within 15 days
after each Distribution Date, including a copy of the Statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior
to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission), the Trustee shall file a Form 10-K, in substance as required
by applicable law or applicable Securities and Exchange Commission staff's
interpretations. Such Form 10-K shall include as exhibits the Servicer's
and the Special Servicer's annual statement of compliance described under
Section 3.13 and the accountant's report described under Section 3.14, in
each case to the extent they have been timely delivered to the Trustee. If
they are not so timely delivered, the Trustee shall file an amended Form
10-K including such documents as exhibits reasonably promptly after they
are delivered to the Trustee. The Trustee shall have no liability with
respect to any failure to properly prepare or file such periodic reports
resulting from or relating to the Trustee's inability or failure to obtain
any information not resulting from its own negligence, willful misconduct
or bad faith. The Form 10-K shall also include a certification in the form
attached hereto as Exhibit Q (the "Certification") (or in such other form
as required by the Rules and Regulations of the Securities and Exchange
Commission), which shall be signed by the senior officer of the Depositor
in charge of securitization.
(iii) The Trustee shall sign a certification (in the form attached
hereto as Exhibit R-1 or in such other form as may be appropriate or
necessary and as may be agreed upon by the Trustee and Depositor as a
result of changes promulgated by the Securities and Exchange Commission in
the Certification required to be filed with the Form 10-K, which are
applicable to the Trust) for the benefit of the Depositor and its
officers, directors and Affiliates (provided, however, that the Trustee
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 R-2 or in such other form as may be
appropriate or necessary and as may be agreed upon by the Servicer and
Depositor as a result of changes promulgated by the Securities and
Exchange Commission in the Certification required to be filed with the
Form 10-K, which are applicable to the Trust) and the Special Servicer
shall sign a certification (in the form attached hereto as Exhibit R-3 or
in such other form as may be appropriate or necessary and as may be agreed
upon by the Special Servicer and Depositor as a result of changes
promulgated by the Securities and Exchange Commission in the Certification
required to be filed with the Form 10-K, which are applicable to the
Trust), in each case, for the benefit of the Depositor, the Trustee and
their officers, directors and Affiliates and, insofar as a Grace Building
Senior Companion Note is included in another commercial mortgage
securitization trust, for the benefit of the depositor, trustee,
certificate administrator and/or master servicer for such trust. Each such
certification shall be delivered to the Depositor and the Trustee and the
depositor and trustee of a related securitization trust holding a Grace
Building Senior Companion Note by March 15th of each year (or if not a
Business Day, the immediately preceding Business Day). The Certification
attached hereto as Exhibit Q shall be delivered by the Depositor to the
Trustee for filing by March 20th of each year (or if not a Business Day,
the immediately preceding Business Day). In addition, (i) the Trustee
shall indemnify and hold harmless the Depositor and its officers,
directors and Affiliates from and against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a
breach of the Trustee's obligations under this Section 4.02(e) or the
Trustee's negligence, bad faith or willful misconduct in connection
therewith, and (ii) the Servicer and Special Servicer shall each severally
and not jointly indemnify and hold harmless the Depositor, the Trustee and
their respective officers, directors and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the Servicer's or Special
Servicer's obligations of the Servicer or the Special Servicer, as the
case may be, under this Section 4.02(e) or the negligence, bad faith or
willful misconduct of the Servicer or the Special Servicer, as the case
may be, in connection therewith. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Depositor, then
(i) the Trustee agrees that it shall contribute to the amount paid or
payable to the Depositor as a result of the losses, claims, damages or
liabilities of the Depositor in such proportion as is appropriate to
reflect the relative fault of the Depositor on the one hand and the
Trustee on the other in connection with a breach of the Trustee's
obligations under this Section 4.02(e) or the Trustee's negligence, bad
faith or willful misconduct in connection therewith, (ii) the Servicer
agrees that it shall contribute to the amount paid or payable by the
Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative
fault of the Depositor on the one hand and the Servicer on the other in
connection with a breach of the Servicer's obligations under this Section
4.02(e) or the Servicer's negligence, bad faith or willful misconduct in
connection therewith and (iii) the Special Servicer agrees that it shall
contribute to the amount paid or payable by the Depositor as a result of
the losses, claims, damages or liabilities of the Depositor in such
proportion as is appropriate to reflect the relative fault of the
Depositor on the one hand and the Special Servicer on the other in
connection with a breach of the 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 Securities and Exchange Commission,
the Trustee shall promptly deliver to the Depositor a copy of any such
executed report, statement or information and shall provide notice of such
filing to the Servicer and Special Servicer.
(v) Prior to January 30 of the first year in which the Trustee is
able to do so under applicable law, the Trustee shall file a Form 15
Suspension Notification with respect to the Trust.
Section 4.03 P&I Advances. (a) On or before 4:00 p.m., New York City
time, on each P&I Advance Date, the Servicer shall either (i) remit to the
Trustee for deposit into the Lower-Tier Distribution Account from its own funds
an amount equal to the aggregate amount of P&I Advances, if any, to be made in
respect of the related Distribution Date, (ii) apply amounts held in the
Certificate Account, for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made. Any amounts held in the Certificate
Account for future distribution and so used to make P&I Advances shall be
appropriately reflected in the Servicer's records and replaced by the Servicer
by deposit in the Certificate Account on or before the next succeeding P&I
Advance Determination Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and/or interest in
respect of which such P&I Advances were made). The Servicer shall notify the
Trustee of (i) the aggregate amount of P&I Advances for a Distribution Date and
(ii) the amount of any Nonrecoverable P&I Advances for such Distribution Date,
on or before 2 Business Days prior to such Distribution Date. If the Servicer
fails to make a required P&I Advance by 4:00 p.m., New York City time, on any
P&I Advance Date, the Trustee shall make such P&I Advance pursuant to Section
7.05 by noon, New York City time, on the related Distribution Date, and if the
Trustee fails to make such P&I Advance, the Fiscal Agent shall make such P&I
Advance pursuant to Section 7.05 by 4:00 pm, 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 Fiscal Agent)
by 11:00 a.m. on such Distribution Date.
(b) Subject to Sections 4.03(c) and (e) below, the amount of P&I
Advances to be made by the Servicer with respect to any Distribution Date and
each Mortgage Loan shall be equal to: (i) the Monthly Payments (net of related
Servicing Fees) other than Balloon Payments, that were due during the related
Due Period and delinquent as of the close of business on the Business Day
preceding the related P&I Advance Date (or not advanced by the Servicer or any
Sub-Servicer on behalf of the Servicer) and (ii) with respect to each Mortgage
Loan as to which the related Balloon Payment was due during or prior to the
related Due Period and was delinquent as of the end of the related Due Period
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the Assumed Scheduled Payment therefor. Subject to
subsection (c) below, the obligation of the Servicer to make such P&I Advances
is mandatory, and with respect to any Mortgage Loan or REO Loan, shall continue
until the Distribution Date on which the proceeds, if any, received in
connection with a Liquidation Event or the disposition of the REO Property, as
the case may be, with respect thereto are to be distributed. No P&I Advances
shall be made with respect to a Companion Loan.
(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 the Grace Building
Mortgage Loan, the Servicer will be required to make its determination that it
has made a P&I Advance on such Grace Building Mortgage Loan that is a
Nonrecoverable Advance or that any proposed P&I Advance would, if made,
constitute a Nonrecoverable Advance with respect to the Grace Building Mortgage
Loan independently of any determination made by any Other Servicer under the
related Other Pooling and Servicing Agreement in respect of a related Grace
Building Companion Note, 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 a Grace Building Companion Note
included in the 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 Grace Building Mortgage Loan, if made, or any outstanding P&I Advance with
respect to a Grace Building Mortgage 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 a related Grace Building Companion Note 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 not be binding on the Certificateholders.
(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 Fiscal Agent and/or the Trustee, as applicable, and itself (in that
order of priority) as the case may be out of any amounts then on deposit in the
Certificate Account (but in no event from any funds payable or allocable to a
holder of a Grace Building Senior Companion Note), 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, the Fiscal Agent and/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) none of the Servicer, the
Trustee or the Fiscal Agent shall make an advance for Excess Interest, Yield
Maintenance Charges, Default Interest or Penalty Charges and (ii) if an
Appraisal Reduction has been made with respect to any Mortgage Loan then in the
event of subsequent delinquencies thereon, the interest portion of the P&I
Advance in respect of such Mortgage Loan for the related Distribution Date shall
be reduced (it being herein acknowledged that there shall be no reduction in the
principal portion of such P&I Advance) to equal the product of (x) the amount of
the interest portion of such P&I Advance for such Mortgage Loan for such
Distribution Date without regard to this subsection (ii), and (y) a fraction,
expressed as a percentage, the numerator of which is equal to the Stated
Principal Balance of such Mortgage Loan immediately prior to such Distribution
Date, net of the related Appraisal Reduction, if any, and the denominator of
which is equal to the Stated Principal Balance of such Mortgage Loan immediately
prior to such Distribution Date. For purposes of the immediately preceding
sentence, the Monthly Payment due on the Maturity Date for a Balloon Mortgage
Loan will be the Assumed Scheduled Payment for the related Distribution Date.
(f) In no event shall any of the Servicer, the Trustee or the Fiscal
Agent be required to make a P&I Advance with respect to any Companion Loan.
Section 4.04 Allocation of Collateral Support Deficit. (a) On each
Distribution Date, immediately following the distributions to be made on such
date pursuant to Section 4.01 and the allocation of Certificate Deferred
Interest pursuant to Section 4.06, the Trustee shall calculate the amount, if
any, by which (i) the aggregate Stated Principal Balance (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 not
otherwise determined to be Nonrecoverable Advances) 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 4.06 (any such deficit, the "Collateral Support Deficit").
Any allocation of Collateral Support Deficit to a Class of Regular Certificates
shall be made by reducing the Certificate Balance thereof by the amount so
allocated. Any Collateral Support Deficit allocated to a Class of Regular
Certificates shall be allocated among the respective Certificates of such Class
in proportion to the Percentage Interests evidenced thereby. The allocation of
Collateral Support Deficit shall constitute an allocation of losses and other
shortfalls experienced by the Trust Fund. Reimbursement of previously allocated
Collateral Support Deficit will not constitute distributions of principal for
any purpose and will not result in an additional reduction in the Certificate
Balance of the Class of Certificates in respect of which any such reimbursement
is made. 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 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 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 and fifteenth to the Class
A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, and the 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.
Section 4.05 Appraisal Reductions. The aggregate Appraisal Reduction
will be allocated by the Trustee on each Distribution Date, only for purposes of
determining the amount of P&I Advances with respect to the related Mortgage
Loan, to the Certificate Balance of the Class NR, Class 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. With respect to an Appraisal Reduction on the Grace Building
Whole Loan, such Appraisal Reduction will be applied to the Grace Building B
Notes, prior to any allocation of such Appraisal Reduction to the Grace Building
Mortgage Loan or Grace Building Senior Companion Notes.
Section 4.06 Certificate Deferred Interest. (a) On each Distribution
Date, the amount of interest distributable to a Class of Certificates (other
than the Class X Certificates) shall be reduced by an amount equal to the amount
of Mortgage Deferred Interest for all 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-1A, Class A-2, Class A-3 and Class A-4 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 4.06(a) above.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates shall be allocated in reduction of the amount
of interest distributable to the Related Uncertificated Lower-Tier Interest with
respect thereto. On each Distribution Date, to the extent provided in Section
4.06(b) with respect to the Related Certificates, 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 subpart E, Part I of subchapter J of the Code, and the provisions
hereof shall be interpreted consistently with this intention. In furtherance of
such intention, the Trustee shall file or cause to be filed with the Internal
Revenue Service together with Form 1041 or such other form as may be applicable
and shall furnish or cause to be furnished, to the Class NR Certificateholders,
the amount of Excess Interest allocable to the Mortgage Loans received, in the
time or times and in the manner required by the Code.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates will be
substantially in the respective forms annexed hereto as Exhibits A-1 through and
including 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 initial Notional Amount
of not less than $1,000,000 and in integral multiples of $1.00 in excess
thereof. The Offered Certificates (other than the Class X Certificates) will be
issuable only in minimum Denominations of authorized initial Certificate Balance
of not less than $10,000, and in integral multiples of $1.00 in excess thereof.
The Non-Registered Certificates (other than the Residual Certificates) will be
issuable in minimum Denominations of authorized initial Certificate Balance of
not less than $250,000, and in integral multiples of $1.00 in excess thereof. If
the Original Certificate Balance or initial Notional Amount, as applicable, of
any Class does not equal an integral multiple of $1.00, then a single additional
Certificate of such Class may be issued in a minimum denomination of authorized
initial Certificate Balance or initial Notional Amount, as applicable, that
includes the excess of (i) the Original Certificate Balance or initial Notional
Amount, as applicable, of such Class over (ii) the largest integral multiple of
$1.00 that does not exceed such amount. The Class R and Class LR Certificates
will be issuable only in one or more Definitive Certificates in denominations
representing Percentage Interests of not less than 20%. With respect to any
Certificate or any beneficial interest in a Certificate, the "Denomination"
thereof shall be (i) the amount (a) set forth on the face thereof or, (b) set
forth on a schedule attached thereto or (c) in the case of any beneficial
interest in a Book-Entry Certificate, the interest of the related Certificate
Owner in the applicable Class of Certificates as reflected on the books and
records of the Depository or related Participants, as applicable, (ii) expressed
in terms of initial Certificate Balance or initial Notional Amount, as
applicable, and (iii) be in an authorized denomination, as set forth above. The
Book-Entry Certificates will be issued as one or more certificates registered in
the name of a nominee designated by the Depository, and Certificate Owners will
hold interests in the Book-Entry Certificates through the book-entry facilities
of the Depository in the minimum Denominations and aggregate Denominations as
set forth in the above. No Certificate Owner of a Book-Entry Certificate of any
Class thereof will be entitled to receive a Definitive Certificate representing
its interest in such Class, except as provided in Section 5.03 herein. Unless
and until Definitive Certificates are issued in respect of a Class of Book-Entry
Certificates, beneficial ownership interests in such Class of Certificates will
be maintained and transferred on the book-entry records of the Depository and
Depository Participants, and all references to actions by Holders of such Class
of Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(a) 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. LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000 is hereby initially appointed Authenticating Agent with power to
act, on Trustee's behalf, in the authentication and delivery of the Certificates
in connection with transfers and exchanges as herein provided. If LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, is removed as Trustee, then LaSalle Bank National Association
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.
(b) 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. LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 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 Trustee, the Fiscal Agent, the
Special Servicer and the Servicer, any other bank or trust company to act as
Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the predecessor Certificate Registrar
shall not be relieved of any of its duties or responsibilities hereunder by
reason of such appointment. The Depositor, the Trustee, the Servicer and the
Special Servicer shall have the right to inspect the Certificate Register or to
obtain a copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in the
Certificate Register. The names and addresses of all Certificateholders and the
names and addresses of the transferees of any Certificates shall be registered
in the Certificate Register; provided, however, in no event shall the
Certificate Registrar be required to maintain in the Certificate Register the
names of Certificate Owners. The Person in whose name any Certificate is so
registered shall be deemed and treated as the sole owner and Holder thereof for
all purposes of this Agreement and the Certificate Registrar, the Servicer, the
Trustee, the Special Servicer and any agent of any of them shall not be affected
by any notice or knowledge to the contrary. A Definitive Certificate is
transferable or exchangeable only upon the surrender of such Certificate to the
Certificate Registrar at its office maintained at LaSalle Bank National
Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attn: Asset Backed Securities Trust Services Group--X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC9 (the "Registrar Office") together with an assignment and transfer
(executed by the Holder or his duly authorized attorney). Subject to the
requirements of Sections 5.02(b), (c) and (d), the Certificate Registrar shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
Denominations of a like aggregate Denomination as the Definitive Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e). Each Certificate surrendered for
registration of transfer shall be canceled, and the Certificate Registrar shall
hold such canceled Certificates in accordance with its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or by the Initial Purchasers to ARCap CMBS
Fund II REIT, Inc.) 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 Registrar 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 Registrar 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 N 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 Registrar 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 O
hereto given by the Certificate Owner, or (ii) after the Restricted
Period, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer, the Certificate Registrar, as custodian
of the Book-Entry Certificates, shall reduce the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Regulation S Book-Entry Certificate to be transferred,
and, concurrently with such reduction, increase the Denomination of the
Rule 144A Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Regulation S Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Rule 144A Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Regulation S Book-Entry Certificate was reduced upon
such transfer.
(iv) Transfers Within Regulation S Book-Entry Certificates During
Restricted Period. If, during the Restricted Period, the Certificate Owner
of an interest in a Regulation S Book-Entry Certificate wishes at any time
to transfer its beneficial interest in such Certificate to a Person who
wishes to take delivery thereof in the form of a Regulation S Book-Entry
Certificate, such Certificate Owner may transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Registrar 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 P hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
debit the account of the transferring Regulation S Certificateholder and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount specified in such instructions by which
the account to be debited was reduced upon such transfer.
(v) Transfers of Book-Entry Certificates to Definitive Certificates.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) if required by the Certificate
Registrar, an opinion of counsel acceptable to the Certificate
Registrar that such transfer is in compliance with the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit R
attached hereto. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made prior
to the expiration of the Restricted Period. Upon acceptance for
exchange or transfer of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate, as provided herein, the
Certificate Registrar shall endorse on the schedule affixed to the
related Book-Entry Certificate (or on a continuation of such
schedule affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of such
Book-Entry Certificate equal to the Denomination of such Definitive
Certificate issued in exchange therefor or upon transfer thereof.
(vi) Transfers of Definitive Certificates to the Book-Entry
Certificates. If a Holder of a Definitive Certificate wishes at any time
to transfer such Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the related Regulation S
Book-Entry Certificate or the related Rule 144A Book-Entry Certificate,
such transfer may be effected only in accordance with the Applicable
Procedures, and this Section 5.02(b)(vi). Upon receipt by the Certificate
Registrar at the Registrar 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.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN
INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE
REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates, no sale,
transfer, pledge or other disposition of any such Certificate shall be made
unless the Certificate Registrar shall have received either (i) a representation
letter from the proposed purchaser or transferee of such Certificate
substantially in the form of Exhibit F attached hereto, to the effect that such
proposed purchaser or transferee is not (a) an employee benefit plan subject to
the fiduciary responsibility provisions of ERISA or Section 4975 of the Code, or
a governmental plan (as defined in Section 3(32) of ERISA) 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 Plan and the
application of Department of Labor Regulation ss. 2510.3-101), other than, an
insurance company using the assets of its general account under circumstances
whereby the purchase and holding of such Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA and the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60 or (ii)
if such Certificate is presented for registration in the name of a purchaser or
transferee that is any of the foregoing, an Opinion of Counsel in form and
substance satisfactory to the Certificate Registrar and the Depositor to the
effect that the acquisition and holding of such Certificate by such purchaser or
transferee will not 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 Fiscal Agent, the Certificate
Registrar, the Servicer, the Special Servicer, the Underwriters, the Initial
Purchasers or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any such
Similar Law) in addition to those set forth in the Agreement. The Certificate
Registrar shall not register the sale, transfer, pledge or other disposition of
any ERISA Restricted Certificate unless the Certificate Registrar has received
either the representation letter described in clause (i) above or the Opinion of
Counsel described in clause (ii) above. The costs of any of the foregoing
representation letters or Opinions of Counsel shall not be borne by any of the
Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal Agent,
the Underwriters, the Initial Purchasers, the Certificate Registrar or the Trust
Fund. Each Certificate Owner of an ERISA Restricted Certificate shall be deemed
to represent that it is not a Person specified in clauses (a) or (b) above. Any
transfer, sale, pledge or other disposition of any ERISA Restricted Certificates
that would constitute or result in a prohibited transaction under ERISA, Section
4975 of the Code or any Similar Law, or would otherwise violate the provisions
of this Section 5.02(c) shall be deemed absolutely null and void ab initio, to
the extent permitted under applicable law.
So long as any of the Class of Certificates remains outstanding, the
Servicer or the Special Servicer, as applicable, will make available, or cause
to be made available, upon request, to any Holder and any Person to whom any
such Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Servicer, the Special Servicer or the Mortgage Loans necessary to
the provision of an Opinion of Counsel described in this Section 5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee under clause
(ii) below to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor 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 Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class A-2, Class A-3, Class A-1A, Class B, Class C, Class D, Class E, Class F,
Class G, Class H or Class X Certificates) or a beneficial interest in a
Book-Entry Certificate representing a Non-Registered Certificate is being held
by or for the benefit of a Person who is not an Eligible Investor, or that such
holding is unlawful under the laws of a relevant jurisdiction, then the
Certificate Registrar shall have the right to void such transfer, if permitted
under applicable law, or to require the investor to sell such Definitive
Certificate or beneficial interest in such Book-Entry Certificate to an Eligible
Investor within 14 days after notice of such determination and each
Certificateholder by its acceptance of a Certificate authorizes the Certificate
Registrar to take such action.
(f) The Certificate Registrar shall provide an updated copy of the
Certificate Register to the Trustee, the Servicer, the Special Servicer and the
Depositor upon written request.
(g) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(h) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates. (a) The Regular Certificates
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.02(d) above or
subsection (c) below, shall not be entitled to Definitive Certificates in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Servicer, the Special Servicer, the Depositor
and the Certificate Registrar may for all purposes, including the making of
payments due on the Book-Entry Certificates, deal with the Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates and (B) the Depositor is unable to locate a qualified successor, or
(ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify the affected Certificate Owners,
through the Depository with respect to all, any Class or any portion of any
Class of the Certificates or (iii) the Certificate Registrar determines that
Definitive Certificates are required in accordance with the provisions of
Section 5.03(e), of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Depository or any custodian acting on behalf of the Depository, accompanied by
registration instructions from the Depository for registration of transfer, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver, within 5 Business Days of such request if made at the
Registrar Office, or within 10 Business Days if made at the office of a transfer
agent (other than the Certificate Registrar), the Definitive Certificates to the
Certificate Owners identified in such instructions. None of the Depositor, the
Servicer, the Trustee, the Fiscal Agent, the Special Servicer, the
Authenticating Agent and the Certificate Registrar shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Class of Certificates,
the registered Holders of such Definitive Certificates shall be recognized as
Certificateholders hereunder and, accordingly, shall be entitled directly to
receive payments on, to exercise Voting Rights with respect to, and to transfer
and exchange such Definitive Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or if the Special Servicer or the
Servicer, on the Trustee's behalf, has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under the
Certificates, and the Trustee has been advised by counsel that in connection
with such proceeding it is necessary or appropriate for the Trustee to obtain
possession of all or any portion of the Certificates evidenced by Book-Entry
Certificates, the Trustee may in its sole discretion determine that such
Certificates shall no longer be represented by such Book-Entry Certificates. In
such event, the Certificate Registrar will execute, the Authenticating Agent
will authenticate and the Certificate Registrar will deliver, in exchange for
such Book-Entry Certificates, Definitive Certificates in a Denomination equal to
the aggregate Denomination of such Book-Entry Certificates to the party so
requesting such Definitive Certificates. In such event, the Certificate
Registrar shall notify the affected Certificate Owners and make appropriate
arrangements for the effectuation of the purpose of this clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Applicable Procedures, Section 5.02(b) and
this Section 5.03(g). Upon receipt by the Certificate Registrar at the Registrar
Office of (i) the Definitive Certificate to be transferred with an assignment
and transfer pursuant to Section 5.02(a), and all required items pursuant to
Section 5.02(b)(v), the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered in the
name of the Holder or the Holder's transferee (as instructed by the Holder), and
the Certificate Registrar as custodian of the Book-Entry Certificates shall
increase the Denomination of the related Book-Entry Certificate by the
Denomination of the Definitive Certificate to be so transferred, and credit or
cause to be credited to the account of the Person specified in such instructions
a corresponding Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (ii) there is delivered to the
Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Servicer, the
Special Servicer, the Trustee, the Certificate Registrar and any agents of any
of them may treat the person in whose name such Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever, except as and to the extent
provided in the definition of "Certificateholder," and none of the Depositor,
the Servicer, the Special Servicer, the Trustee, the Certificate Registrar and
any agent of any of them shall be affected by notice to the contrary except as
provided in Section 5.02(d).
Section 5.06 Certificate Ownership Certification. To the extent that
under the terms of this Agreement, it is necessary to determine whether any
Person is a Certificate Owner, the Trustee shall make such determination based
on a certificate of such Person which shall be addressed to the Trustee and
shall specify, in reasonable detail satisfactory to the Trustee, such Person's
name and address, the Class and Certificate Balance or Notional Amount of the
Regular Certificate beneficially owned, and any intermediaries through which
such Person's interest in such Regular Certificate is held (any such
certification, other than one which the Trustee shall refuse to recognize
pursuant to the following procedures, a "Certificate Ownership Certification");
provided, however, that the Trustee shall not knowingly recognize such Person as
a Certificate Owner if such Person, to the actual knowledge of a Responsible
Officer of such party, acquired its interest in a Regular Certificate in
violation of the transfer restrictions herein, or if such Person's certification
that it is a Certificate Owner is in direct conflict with information obtained
by the Trustee from the Depository or any Depository Participant with respect to
the identity of a Certificate Owner; provided, however, that to the extent the
Trustee is required to obtain such Certificate Owner information from the
Depository or any Depository Participant, the Trustee shall be reimbursed for
any cost or expense in obtaining such information from the Distribution Account.
The Trustee may conclusively rely on such Certificate Ownership Certification.
The Servicer will only be required to acknowledge the status of any Person as a
Certificateholder or Certificate Owner to the extent that the Trustee, at the
request of the Servicer, identifies such Person as a Certificateholder or
Certificate Owner.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE SERVICER,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Servicer and the
Special Servicer. The Depositor, the Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicer and the
Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Servicer or the Special Servicer. (a) Subject to subsection (b) below, the
Depositor, the Servicer and the Special Servicer each will keep in full effect
its existence, rights and franchises as a corporation under the laws of the
jurisdiction of its incorporation or organization, and each will obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
(b) The Depositor, the Servicer and the Special Servicer each may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets (which may be limited to all or substantially all of its
assets related to commercial mortgage loan servicing) to any Person, in which
case any Person resulting from any merger or consolidation to which the
Depositor, the Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business of the Depositor, the Servicer or the Special
Servicer, shall be the successor of the Depositor, the Servicer and the Special
Servicer, as the case may be, hereunder, without the execution or filing of any
paper (other than an assumption agreement wherein the successor shall agree to
perform the obligations of and serve as the Depositor, the Servicer or the
Special Servicer, as the case may be, in accordance with the terms of this
Agreement) or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that such merger,
consolidation or succession will not result in a withdrawal, downgrading or
qualification of the then-current ratings of the Classes of Certificates that
have been so rated (as evidenced by a letter to such effect from each Rating
Agency) or, insofar as there is then outstanding any class of Grace Building
Companion Loan Securities that is then rated by such Rating Agency, such class
of Grace Building Companion Loan Securities or, insofar as there is then
outstanding any class of Grace Building Companion Loan Securities that is then
rated by Xxxxx'x, a withdrawal, downgrading or qualification of the then-current
rating assigned by Xxxxx'x to such class of Grace Building Companion Loan
Securities.
Section 6.03 Limitation on Liability of the Depositor, the Servicer,
the Special Servicer and Others. (a) None of the Depositor, the Servicer, the
Special Servicer or any of the directors, officers, employees or agents of any
of the foregoing shall be under any liability to the Trust, the
Certificateholders or the Companion Holders for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Servicer, the Special Servicer or any such
Person against any breach of warranties or representations made herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of duties or by reason of negligent
disregard of obligations and duties hereunder. The Depositor, the Servicer and
the Special Servicer and any director, officer, member, manager, employee or
agent of the Depositor, the Servicer or the Special Servicer may rely on any
document of any kind which, prima facie, is properly executed and submitted by
any Person respecting any matters arising hereunder. The Depositor, the
Servicer, the Special Servicer and any director, officer, employee or agent of
any of the foregoing shall be indemnified and held harmless by the Trust against
any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses incurred in connection with any legal action (whether in equity or at
law) or claim relating to this Agreement, the Mortgage Loans, the Companion
Loans or the Certificates, other than any loss, liability or expense: (i)
specifically required to be borne thereby pursuant to the terms hereof; (ii)
incurred in connection with any breach of a representation, warranty or covenant
made by it herein; (iii) incurred by reason of bad faith, willful misconduct or
negligence in the performance of its obligations or duties hereunder, or by
reason of negligent disregard of such obligations or duties; or (iv) in the case
of the Depositor and any of its directors, officers, employees and agents,
incurred in connection with any violation by any of them of any state or federal
securities law. Each of the Servicer and the Special Servicer may rely, 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,
financial statement, agreement, appraisal, bond or other document (in electronic
or paper format) as contemplated by and in accordance with this Agreement and
reasonably believed or in good faith believed by the Servicer or the Special
Servicer to be genuine and to have been signed or presented by the proper party
or parties and each of them may consult with counsel, in which case any written
advice of counsel or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel. In addition, with respect to indemnification of the Servicer and the
Special Servicer related to the Grace Building Whole Loan, the Servicer or
Special Servicer, as applicable, shall seek contribution from the holders of the
Grace Building Companion Notes for any indemnification that is allocable to the
Grace Building Companion Notes pursuant to and in accordance with the Grace
Building Co-Lender Agreement.
(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 and Companion 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 Fiscal Agent, each Grace Building
Senior Companion Noteholder 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 Fiscal 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 Fiscal 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) The Trustee agrees to indemnify the Servicer and the Special
Servicer and any director, officer, employee or agent thereof, and hold them
harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Trustee in the performance of its obligations and duties under this Agreement or
by reason of negligent disregard by the Trustee of its duties and obligations
hereunder or by reason of breach of any representations or warranties made
herein; provided, that such indemnity shall not cover indirect or consequential
damages. The Servicer or the Special Servicer, as the case may be, shall
immediately notify the Trustee if a claim is made by a third party with respect
to this Agreement, whereupon the Trustee shall assume the defense of such claim
(with counsel reasonably satisfactory to the Servicer or the Special Servicer)
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Trustee shall not affect any rights any of the foregoing Persons may have to
indemnification under this Agreement or otherwise, unless the Trustee's defense
of such claim is materially prejudiced thereby.
(e) The Depositor agrees to indemnify the Servicer and the Special
Servicer and any director, officer, employee or agent thereof, and hold them
harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Depositor, in the performance of its obligations and duties under this Agreement
or by reason of negligent disregard by the Depositor of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided, that such indemnity shall not cover indirect
or consequential damages. The Servicer or the Special Servicer, as the case may
be, shall immediately notify the Depositor if a claim is made by a third party
with respect to this Agreement, whereupon the Depositor shall assume the defense
of such claim (with counsel reasonably satisfactory to the Servicer or the
Special Servicer) and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. Any failure to
so notify the Depositor shall not affect any rights any of the foregoing Persons
may have to indemnification under this Agreement or otherwise, unless the
Depositor's defense of such claim is materially prejudiced thereby.
The indemnification provided herein shall survive the termination of
this Agreement and the termination or resignation of the Servicer, the Trustee,
the Fiscal Agent and the Special Servicer.
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Servicer nor the Special
Servicer shall resign from their respective obligations and duties hereby
imposed on each of them except upon (a) determination that such party's duties
hereunder are no longer permissible under applicable law or (b) in the case of
the Servicer, upon the appointment of, and the acceptance of such appointment
by, a successor Servicer and receipt by the Trustee of written confirmation from
each applicable Rating Agency that such resignation and appointment will not
cause such Rating Agency to downgrade, withdraw or qualify any of the then
current ratings assigned by such Rating Agency to any Class of Certificates or
any class of Grace Building Companion Loan Securities (or insofar as there is
then outstanding any class of Grace Building Companion Loan Securities that is
then rated by Xxxxx'x, of the then-current rating assigned by Xxxxx'x to such
class of securities). 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 Servicer and the Special Servicer as Certificate
Owner. The Servicer, the Special Servicer or any Affiliate thereof may become
the Holder of (or, in the case of a Book-Entry Certificate, Certificate Owner
with respect to) any Certificate with (except as otherwise set forth in the
definition of "Certificateholder") the same rights it would have if it were not
the Servicer, the Special Servicer or an Affiliate thereof.
Section 6.07 The Directing Certificateholder and the Grace Building
Directing Holder. 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) as to which the Servicer must obtain the consent or deemed consent of the
Special Servicer, and (3) the Special Servicer with respect to all Mortgage
Loans for which an extension of maturity is being considered by the Special
Servicer or by the Servicer subject to consent or deemed consent of the Special
Servicer, and notwithstanding anything herein to the contrary, except as set
forth in, and in any event subject to, Section 3.08(f) and the second paragraph
of this Section 6.07, the Servicer or Special Servicer, as applicable, shall not
be permitted to take any of the following actions as to which the Directing
Certificateholder has objected in writing within ten (10) Business Days of being
notified thereof (provided that if such written objection has not been received
by the Servicer or the Special Servicer, as applicable, within such ten (10)
Business Day period, then the Directing Certificateholder will be deemed to have
waived its right to object):
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification, consent to a modification or waiver of a
monetary term or material non-monetary term (including, without
limitation, the timing of payments and acceptance of discounted payoffs)
of a Mortgage Loan or any extension of the maturity date of any Mortgage
Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund) for less
than the applicable Purchase Price;
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan, or any consent to either of the
foregoing, other than required 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 Specially Serviced Mortgage Loan or a Non-Specially
Serviced Mortgage Loan with a Stated Principal Balance greater than or
equal to $2,500,000 or any consent to such waiver or consent to a transfer
of the Mortgaged Property or interests in the borrower or consent to the
incurrence of additional debt, other than any such transfer or incurrence
of debt as may be effected without the consent of the lender under the
related loan agreement;
(vii) any property 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, reserve accounts or letters of
credit held as performance escrows or reserves in an amount greater than
or equal to $1,500,000, other than required pursuant to the specific terms
of the Mortgage Loans;
(ix) any acceptance of an assumption agreement releasing a Mortgagor
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan;
(x) any determination of an Acceptable Insurance Default; and
(xi) with respect to the Grace Building Whole Loan, any approval of
a material capital expenditure, if the mortgagee's approval is required
under the Mortgage Loan documents; and
(xii) with respect to the Grace Building Whole Loan, any adoption or
approval of a plan in bankruptcy of the Mortgagor.
provided that, in the event that the Special Servicer or Servicer (in the event
the Servicer is otherwise authorized by this Agreement to take such action), as
applicable, determines that immediate action is necessary to protect the
interests of the Certificateholders (as a collective whole), the Special
Servicer or Servicer, as applicable may take any such action without waiting for
the Directing Certificateholder's response.
In addition, the Directing Certificateholder, subject to any rights,
if any, of the related Companion Holder to advise the Special Servicer with
respect to the related Loan Pair pursuant to the terms of the related
Intercreditor Agreement may direct the Special Servicer to take, or to refrain
from taking, such other actions with respect to a Mortgage Loan, as the
Directing Certificateholder may deem advisable or as to which provision is
otherwise made herein; provided that notwithstanding anything herein to the
contrary, no such direction, and no objection contemplated by the preceding
paragraph, may require or cause the Special Servicer to violate any provision of
this Agreement or the REMIC Provisions, including without limitation the Special
Servicer's obligation to act in accordance with the Servicing Standards, or
expose the Servicer, the Special Servicer, the Trust Fund or the Trustee to
liability, or materially expand the scope of the Special Servicer's
responsibilities hereunder or cause the Special Servicer to act, or fail to act,
in a manner which in the reasonable judgment of the Special Servicer is not in
the best interests of the Certificateholders.
With respect to the Grace Building Whole Loan, to the extent a Grace
Building Control Appraisal Event has not occurred and is continuing, the Grace
Building B Note Representative, instead of the Directing Certificateholder, will
have the rights of the Directing Certificateholder described in the two
preceding paragraphs above insofar as it relates solely to the Grace Building
Whole Loan. However, following the occurrence and during the continuance of a
Grace Building Control Appraisal Event, the Grace Building Majority Senior
Holders shall exercise such rights pursuant to the procedures set forth in the
Grace Building Co-Lender Agreement. However, in the event that Grace Building
Majority Senior Holders cannot agree on a course of action within 30 days after
receipt of a request for consent to any action, the Servicer or Special
Servicer, as applicable, shall implement the action or inaction that it deems in
accordance with the Servicing Standards and in accordance with the Grace
Building Co-Lender Agreement.
In the event the Special Servicer or Servicer, as applicable,
determines that a refusal to consent by the Directing Certificateholder or the
Grace Building Directing Holder or any advice from the Directing
Certificateholder or the Grace Building Directing Holder would otherwise cause
the Special Servicer or Servicer, as applicable, to violate the terms of this
Agreement, including without limitation, the Servicing Standards, the Special
Servicer or Servicer, as applicable, shall disregard such refusal to consent or
advice and notify the Directing Certificateholder, the Grace Building Directing
Holder, the Trustee and the Rating Agencies of its determination, including a
reasonably detailed explanation of the basis therefor.
The Directing Certificateholder (and with respect to the Grace
Building Whole Loan, the Grace Building Directing Holder) shall have no
liability to the Trust Fund or the Certificateholders for any action taken, or
for refraining from the taking of any action, or for errors in judgment;
provided, however, that the Directing Certificateholder (and with respect to the
Grace Building Whole Loan, the Grace Building Directing Holder) shall not be
protected against any liability to the Controlling Class Certificateholder (or
with respect to the Grace Building Directing Holder, the holders of the Grace
Building Mortgage Loan, the Grace Building Senior Companion Notes and the Grace
Building B Notes, as applicable) 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 acknowledges and agrees that the Directing
Certificateholder (and with respect to the Grace Building Whole Loan, the Grace
Building Directing Holder) may take actions that favor the interests of one or
more Classes of the Certificates over other Classes of the Certificates, and
that the Directing Certificateholder (and with respect to the Grace Building
Whole Loan, the Grace Building Directing Holder) may have special relationships
and interests that conflict with those of Holders of some Classes of the
Certificates, that the Directing Certificateholder (or with respect to the Grace
Building Whole Loan, the Grace Building Directing Holder) may act solely in the
interests of the Holders of the Controlling Class, that the Directing
Certificateholder (and with respect to the Grace Building Whole Loan, the Grace
Building Directing Holder) does not have any duties or liability to the Holders
of any Class of Certificates other than the Controlling Class (or with respect
to the Grace Building Directing Holder, the holders of the Grace Building
Mortgage Loan, the Grace Building Senior Companion Notes or the Grace Building B
Notes, as applicable), that the Directing Certificateholder (and with respect to
the Grace Building Whole Loan, the Grace Building Directing Holder) 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 (or
with respect to the Grace Building Directing Holder, that favor the interests of
the holders of the Grace Building Mortgage Loan, the Grace Building Senior
Companion Notes and the Grace Building B Notes, as applicable, over other such
Holders), that the Directing Certificateholder (or with respect to the Grace
Building Whole Loan, the Grace Building Directing Holder) shall not be liable to
any Certificateholder, by reason of its having acted solely in the interests of
the Holders of the Controlling Class (or with respect to the Grace Building
Whole Loan, the Grace Building Directing Holder shall also not be liable to, the
holders of the Grace Building Mortgage Loan, the Grace Building Senior Companion
Notes and the Grace Building B Notes, as applicable), and that the Directing
Certificateholder (and with respect to the Grace Building Whole Loan, the Grace
Building Directing Holder) shall have no liability whatsoever for having so
acted, and no Certificateholder (or with respect to the Grace Building Whole
Loan, no holder of any of the notes included therein) may take any action
whatsoever against the Directing Certificateholder (and with respect to the
Grace Building Whole Loan, the Grace Building Directing Holder) 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 deposit is required to be made under the terms of this
Agreement, which failure is not remedied within one Business Day or (B)
any failure by the Servicer to deposit into, or remit to the Trustee for
deposit into, any Distribution Account any amount required to be so
deposited or remitted, which failure is not remedied by 11:00 a.m. (New
York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within one Business Day after such deposit is required to be made
or to remit to the Servicer for deposit into the Certificate Account or to
deposit into, or to remit to the Trustee for deposit into, the Lower-Tier
Distribution Account any amount required to be so deposited or remitted by
the Special Servicer pursuant to, and at the time specified by, the terms
of this Agreement; or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any of its
other covenants or obligations contained in this Agreement which continues
unremedied for a period of 30 days (10 days in the case of the Servicer's
failure to make a Servicing Advance or 15 days in the case of a failure to
pay the premium for any insurance policy required to be maintained
hereunder) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given (A) to the
Servicer or the Special Servicer, as the case may be, by any other party
hereto, or (B) to the Servicer or the Special Servicer, as the case may
be, with a copy to each other party to this Agreement, by the Holders of
Certificates evidencing Percentage Interests aggregating not less than
25%; provided, however, if such failure is capable of being cured and the
Servicer or Special Servicer, as applicable, is diligently pursuing such
cure, such 30-day period will be extended an additional 30 days; or
(iv) any breach on the part of the Servicer or the Special Servicer
of any representation or warranty contained in Section 3.24 or Section
3.25, as applicable, which materially and adversely affects the interests
of any Class of Certificateholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach, requiring
the same to be remedied, shall have been given to the Servicer or the
Special Servicer, as the case may be, by the Depositor, the Trustee, or to
the Servicer, the Special Servicer, the Depositor and the Trustee by the
Holders of Certificates evidencing Percentage Interests aggregating not
less than 25%; provided, however, if such breach is capable of being cured
and the Servicer or Special Servicer, as applicable, is diligently
pursuing such cure, such 30-day period will be extended an additional 30
days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged, undismissed or unstayed for a period of 60
days; or
(vi) the Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or the Special Servicer or of or relating to all or substantially
all of its property; or
(vii) the Servicer or the Special Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) the Trustee has received a written notice from Fitch (which
the Trustee is required to promptly forward to the Servicer or the Special
Servicer, as applicable), to the effect that if the Servicer or the
Special Servicer, as applicable, continues to act in such capacity, the
rating or ratings on one or more Classes of Certificates will be
downgraded or withdrawn, citing servicing concerns relating to the
Servicer or the Special Servicer, as the case may be, as the sole or
material factor in such action; provided, such Servicer or the Special
Servicer, as applicable, shall have ninety (90) days to resolve such
matters to the satisfaction of Fitch (or such longer time period as may be
agreed in writing by Fitch) prior to the replacement of the Servicer or
the Special Servicer or the downgrade of any Class of Certificates; or
(ix) the Trustee has received written notice from S&P to the effect
that the Servicer or Special Servicer has been removed from S&P's approved
master servicer list or approved special servicer list, respectively, and
any of the ratings assigned to the Certificates have been qualified,
downgraded or withdrawn in connection with such removal.
Notwithstanding anything to the contrary contained in this section,
if (i) an Event of Default on the part of the Servicer or the Special Servicer
materially and adversely affects only the Grace Building Companion Notes, (ii)
the Servicer or Special Servicer fails to make any payment on any of the Grace
Building Companion Notes when required under this Agreement, (iii) any
qualification, downgrade or withdrawal by any Rating Agency or Xxxxx'x of Xxxxx
Building Companion Loan Securities occurs as a result of the Servicer or Special
Servicer or (iv) an event occurs of the type under Section 7.01(a)(iii) or
7.01(a)(iv) with respect to the Grace Building Companion Notes that continues
unremedied for the time period set forth therein from the time a Grace Building
Companion Noteholder provides notice to the Servicer or Special Servicer (the
foregoing clauses (i) through (iv), a "Grace Building Companion Default"), the
Servicer or Special Servicer may not be terminated by the Grace Building
Companion Noteholders solely due to the occurrence of such event but, at the
direction of the Trustee (which shall give such direction at the instruction of
any affected Grace Building Senior Companion Noteholder), must appoint a
Sub-Servicer (which shall be acceptable to the Grace Building Majority Senior
Holders)(in the event of a default on the part of the Servicer and not the
Initial Sub-Servicer with respect to the Grace Building Whole Loan) that will be
responsible for all of the servicing obligations of the Servicer with respect to
the Grace Building Whole Loan under this Agreement and the Grace Building
Co-Lender Agreement. Such Sub-Servicer shall receive any servicing compensation
that the Servicer was entitled to for servicing the Grace Building Whole Loan.
Any such Sub-Servicer appointed shall be required to succeed to and assume the
rights and duties of the Servicer under the Initial Sub-Servicing Agreement for
the Grace Building Whole Loan (unless such agreement has been terminated in
accordance with its terms). Neither the requirement to make such appointment nor
the appointment itself shall in any event expand, limit or otherwise modify the
relative rights and duties of the "Servicer" or "Initial Sub-Servicer" under the
Initial Sub-Servicing Agreement relating to the Grace Building Whole Loan as
construed without regard to this provision and the replaced Servicer will no
longer have any duties or obligations under the Initial Sub-Servicing Agreement
going forward. Notwithstanding the foregoing, if a Grace Building Companion
Default constitutes or results from an event of default of the Initial
Sub-Servicer under the Initial Sub-Servicing Agreement (or a successor
Sub-Servicer under a successor subservicing agreement) with respect to the Grace
Building Whole Loan, in lieu of the provisions above (at the option of any
affected Grace Building Senior Companion Noteholder) the Servicer shall
terminate such Sub-Servicing Agreement and appoint a replacement Sub-Servicer to
perform the duties, and receive the benefits (including the sub-servicing
compensation, which shall be paid by the Servicer, or the person appointed to
perform the servicer's duties as provided above from its servicing compensation)
of such Sub-Servicer with respect to the Grace Building Whole Loan. To the
extent that notice is required for an event to constitute an event of default
under such Sub-Servicing Agreement, the Servicer shall promptly give such
notice.
(b) If any Event of Default with respect to the Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee or the Depositor may, and at the written direction (of the Directing
Certificateholder) or the Holders of Certificates entitled to at least 51% of
the Voting Rights, the Trustee shall, terminate, by notice in writing to the
Defaulting Party, with a copy of such notice to the Depositor, all of the rights
(subject to Section 3.11 and Section 6.03) and obligations of the Defaulting
Party under this Agreement and in and to the Mortgage Loans and the proceeds
thereof; provided, however, that the Defaulting Party shall be entitled to the
payment of accrued and unpaid compensation and reimbursement through the date of
such termination as provided for under this Agreement for services rendered and
expenses incurred. From and after the receipt by the Defaulting Party of such
written notice except as otherwise provided in this Article VII, all authority
and power of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee with respect to a
termination of the Servicer and to the Servicer with respect to a termination of
the Special Servicer pursuant to and under this Section, and, without
limitation, the Trustee or Servicer, as applicable, is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Servicer and Special Servicer each agree
that if it is terminated pursuant to this Section 7.01(b), it shall promptly
(and in any event no later than 20 Business Days subsequent to its receipt of
the notice of termination) provide the Trustee or the Servicer, as applicable,
with all documents and records requested by it to enable it to assume the
Servicer's or the Special Servicer's, as the case may be, functions hereunder,
and shall cooperate with the Trustee or the Servicer, as applicable, in
effecting the termination of the Servicer's or the Special Servicer's, as the
case may be, responsibilities and rights (subject to Section 3.11 and Section
6.03) hereunder, including, without limitation, the transfer within 5 Business
Days to the Trustee or the Servicer, as applicable, for administration by it of
all cash amounts which shall at the time be or should have been credited by the
Servicer to the Certificate Account or any Servicing Account (if it is the
Defaulting Party) or by the Special Servicer to the REO Account (if it is the
Defaulting Party) or thereafter be received with respect to the Mortgage Loans
or any REO Property (provided, however, that the Servicer and the Special
Servicer each shall, if terminated pursuant to this Section 7.01(b), continue to
be entitled to receive all amounts accrued or owing to it under this Agreement
on or prior to the date of such termination, whether in respect of Advances (in
the case of the Special Servicer or the Servicer) or otherwise, and it and its
directors, managers, officers, members, employees and agents shall continue to
be entitled to the benefits of Section 3.11 and Section 6.03 notwithstanding any
such termination).
(c) If the Servicer receives notice of termination solely due to an
Event of Default under Section 7.01(b) solely due to an Event of Default under
Section 7.01(a)(viii) through (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 and Companion 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 and Companion 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 and
Companion 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
Agency to any class of Certificates or Grace Building Companion Loan Securities
then rated by the Rating Agency (or, if any Grace Building Companion Loan
Securities are rated by Xxxxx'x, confirmation in writing by Xxxxx'x that the
appointment of such Successful Bidder as Successor Servicer will not result in
the withdrawal, downgrade or qualification of the rating assigned by Xxxxx'x to
such Grace Building Companion Loan Securities) within 10 days after the
selection of such Successful Bidder, then the Trustee shall repeat the bid
process described above (but subject to the above-described 45-day time period)
until such confirmation is obtained. The Trustee shall direct the Successful
Bidder to enter into this Agreement as successor Servicer pursuant to the terms
hereof no later than 45 days after notice of the termination of the Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
Servicer to be terminated pursuant to Section 7.01(b), the amount of such cash
bid received from the Successful Bidder (net of "out-of-pocket" expenses
incurred in connection with obtaining such bid and transferring servicing) and
(ii) if the successful bid was a Servicing-Released Bid, to the Servicer and
each terminated Sub-Servicer its respective Bid Allocation.
The Servicer to be terminated pursuant to Section 7.01(b) shall be
responsible for all out-of-pocket expenses incurred in connection with the
attempt to sell its rights to service the Mortgage Loans, which expenses are not
reimbursed to the party that incurred such expenses pursuant to the preceding
paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Servicer within the above-described time period or no Successful
Bidder was identified within the above-described time period, the Servicer to be
terminated pursuant to Section 7.01(b) shall reimburse the Trustee for all
reasonable "out-of-pocket" expenses incurred by the Trustee in connection with
such bid process and the Trustee shall have no further obligations under this
Section 7.01(c). The Trustee thereafter may act or may select a successor to act
as Servicer hereunder in accordance with Section 7.02.
(d) The Directing Certificateholder shall be entitled to terminate
the rights (subject to Section 3.11 and Section 6.03(d)) and obligations of the
Special Servicer under this Agreement, with or without cause, upon ten (10)
Business Days' notice to the Special Servicer, the Servicer and the Trustee and,
if the Grace Building Whole Loan is affected, each holder of a Grace Building
Companion Note; such termination to be effective upon the appointment of a
successor Special Servicer meeting the requirements of this Section 7.01(d).
Upon a termination or resignation of such 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 or, insofar as there is then outstanding any class of Grace
Building Companion Loan Securities that is then rated by such Rating Agency, in
a similar event with respect to such class of Grace Building Companion Loan
Securities or, insofar as there is then outstanding any class of Grace Building
Companion Loan Securities that is then rated by Xxxxx'x, a withdrawal,
downgrading or qualification of the then-current rating assigned by Xxxxx'x to
such class of Grace Building Companion Loan Securities.
(e) No penalty or fee shall be payable to the terminated 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.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Servicer or the Special Servicer, as the case may be, either
resigns pursuant to Subsection (a) of the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(a), and
provided that no acceptable successor has been appointed within the time period
specified in Section 7.01(c), the Trustee shall be the successor to the Servicer
and the Servicer shall be the successor to the Special Servicer, until such
successor to the Special Servicer is appointed by the Directing
Certificateholder as provided in Section 7.01(d), as applicable, in all respects
in its capacity as Servicer or Special Servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to, and have
the benefit of, all of the rights, (subject to Section 3.11 and Section 6.03)
benefits, responsibilities, duties, liabilities and limitations on liability
relating thereto and that arise thereafter placed on or for the benefit of the
Servicer or Special Servicer by the terms and provisions hereof; provided,
however, that any failure to perform such duties or responsibilities caused by
the terminated party's failure under Section 7.01 to provide information or
moneys required hereunder shall not be considered a default by such successor
hereunder. The appointment of a successor Servicer shall not affect any
liability of the predecessor Servicer which may have arisen prior to its
termination as Servicer, and the appointment of a successor Special Servicer
shall not affect any liability of the predecessor Special Servicer which may
have arisen prior to its termination as Special Servicer. The Trustee or
Servicer, as applicable, in its capacity as successor to the Servicer or the
Special Servicer, as the case may be, shall not be liable for any of the
representations and warranties of the Servicer or the Special Servicer,
respectively, herein or in any related document or agreement, for any acts or
omissions of the predecessor Servicer or Special Servicer or for any losses
incurred by the Servicer pursuant to Section 3.06 hereunder, nor shall the
Trustee or the Servicer, as applicable, be required to purchase any Mortgage
Loan hereunder solely as a result of its obligations as successor Servicer or
Special Servicer, as the case may be. Subject to Section 3.11, as compensation
therefor, the Trustee as successor Servicer shall be entitled to the Servicing
Fees and all fees relating to the Mortgage Loans or Companion Loans which the
Servicer would have been entitled to if the Servicer had continued to act
hereunder, including but not limited to any income or other benefit from any
Permitted Investment pursuant to Section 3.06, and subject to Section 3.11, the
Servicer as successor to the Special Servicer shall be entitled to the Special
Servicing Fees to which the Special Servicer would have been entitled if the
Special Servicer had continued to act hereunder. Should the Trustee or the
Servicer, as applicable, succeed to the capacity of the Servicer or the Special
Servicer, as the case may be, the Trustee or the Servicer, as applicable, shall
be afforded the same standard of care and liability as the Servicer or the
Special Servicer, as applicable, hereunder notwithstanding anything in Section
8.01 to the contrary, but only with respect to actions taken by it in its role
as successor Servicer or successor Special Servicer, as the case may be, and not
with respect to its role as Trustee or Servicer, as applicable, hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to act as
successor to the Servicer, or shall, if it is unable to so act, or if the
Trustee is not approved as a servicer by each Rating Agency (and, with respect
to the Grace Building Whole Loan, Xxxxx'x, if any of the Grace Building
Companion Loan Securities are rated by Xxxxx'x), 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, with respect to the Grace Building Whole Loan, confirmation by Xxxxx'x, if
any of the Grace Building Companion Loan Securities are rated by Xxxxx'x), and
which appointment has been approved by the Directing Certificateholder, such
approval not to be unreasonably withheld. Pending appointment of a successor to
the Servicer or the Special Servicer hereunder, unless the Trustee or the
Servicer, as applicable, shall be prohibited by law from so acting, the Trustee
or the Servicer, as applicable, shall act in such capacity as herein above
provided. In connection with such appointment and assumption of a successor to
the Servicer or Special Servicer as described herein, the Trustee or the
Servicer, as applicable, may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation with respect to a successor
Servicer or successor Special Servicer, as the case may be, shall be in excess
of that permitted the terminated Servicer or Special Servicer, as the case may
be, hereunder. The Trustee, the Servicer or the Special Servicer (whichever is
not the terminated party) and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
Any costs and expenses associated with the transfer of the servicing function
(other than with respect to a termination without cause) under this Agreement
shall be borne by the predecessor servicer.
Section 7.03 Notification to Certificateholders. (a) Upon any
resignation of the Servicer or the Special Servicer pursuant to Section 6.04,
any termination of the Servicer or the Special Servicer pursuant to Section 7.01
or any appointment of a successor to the Servicer or the Special Servicer
pursuant to Section 7.02, the Trustee shall give prompt written notice thereof
to Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders (and, if the Grace Building Whole Loan is affected, the Grace
Building Companion Noteholders) notice of such occurrence, unless such default
shall have been cured.
Section 7.04 Waiver of Events of Default. The Holders of
Certificates representing at least 662/3% of the Voting Rights allocated to each
Class of Certificates affected by any Event of Default hereunder may waive such
Event of Default within 20 days of the receipt of notice from the Trustee of the
occurrence of such Event of Default; provided, however, that an Event of Default
under clause (i) of Section 7.01(a) may be waived only by all of the
Certificateholders of the affected Classes; provided, however, that with respect
to the Grace Building Whole Loan and a Grace Building Companion Default
specified in the last paragraph of Section 7.01(a), such Grace Building
Companion Default may be waived only by all of the Grace Building Senior
Companion Noteholders. 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 and Fiscal Agent as Maker of Advances. In the
event that the Servicer fails to fulfill its obligations hereunder to make any
Advances and such failure remains uncured, the Trustee shall perform such
obligations (x) within five Business Days following such failure by the Servicer
with respect to Servicing Advances resulting in an Event of Default under
Section 7.01(a)(iii) hereof to the extent a Responsible Officer of the Trustee
has actual knowledge of such failure with respect to such Servicing Advances and
(y) by noon, New York City time, on the related Distribution Date with respect
to P&I Advances pursuant to the Trustee's notice of failure pursuant to Section
4.03(a) unless such failure has been cured; provided, however, that if the
Trustee fails to perform its obligations hereunder to make any Advances, the
Fiscal Agent shall perform such obligations pursuant to Section 8.13 of this
Agreement. With respect to any such Advance made by the Trustee or Fiscal Agent,
the Trustee or Fiscal Agent, as applicable, 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 the Trustee, the Fiscal Agent 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 Fiscal Agent and
then 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 and the Fiscal Agent 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 FISCAL AGENT
Section 8.01 Duties of Trustee. (a) The Trustee, prior to the
occurrence of an Event of Default and after the curing or waiving of all Events
of Default which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. If an Event of
Default occurs and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Agreement, and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs. Any permissive right of the
Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall notify the party providing such instrument
and requesting the correction thereof. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, the
Servicer or the Special Servicer or another Person, and accepted by the Trustee
in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct or bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action).
Section 8.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; the
Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) The Trustee shall not be liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 50% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity from
such requesting Holders against such expense or liability as a condition
to taking any such action. The reasonable expense of every such reasonable
examination shall be paid by the requesting Holders;
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Trustee of its duties or obligations
hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) The Trustee shall not be responsible for any act or omission
of the Servicer or the Special Servicer (unless the Trustee is acting as
Servicer or Special Servicer, as the case may be in which case the Trustee
shall only be responsible for its own actions as Servicer or Special
Servicer) or of the Depositor.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates, other than the acknowledgments of the Trustee in Sections 2.02 and
2.05 and the signature, if any, of the Certificate Registrar and Authenticating
Agent set forth on any outstanding Certificate, shall be taken as the statements
of the Depositor, the Servicer or the Special Servicer, as the case may be, and
the Trustee assumes no responsibility for their correctness. The Trustee does
not make 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
set forth thereon) or of any Mortgage Loan or related document. The Trustee
shall not be accountable for the use or application by the Depositor of any of
the Certificates issued to it or of the proceeds of such Certificates, or for
the use or application of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in or
withdrawn from the Certificate Account or any other account by or on behalf of
the Depositor, the Servicer, the Special Servicer or in the case of the Trustee.
The Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Servicer or the Special Servicer and
accepted by the Trustee, in good faith, pursuant to this Agreement.
Section 8.04 Trustee or Fiscal Agent May Own Certificates. The
Trustee or the Fiscal Agent each in its individual capacity, not as Trustee or
the Fiscal Agent, may become the owner or pledgee of Certificates, and may deal
with the Depositor, the Servicer, the Special Servicer, the Initial Purchasers
and the Underwriters in banking transactions, with the same rights it would have
if it were not Trustee or Fiscal Agent.
Section 8.05 Fees and Expenses of Trustee; Indemnification of
Trustee and Fiscal Agent. (a) As compensation for the performance of its
respective duties hereunder, the Trustee will be paid the Trustee Fee, equal to
the Trustee's portion of one month's interest at the Trustee Fee Rate, which
shall cover recurring and otherwise reasonably anticipated expenses of the
Trustee. The Trustee Fee shall be paid monthly on a Mortgage Loan-by-Mortgage
Loan basis. As to each Mortgage Loan and REO Loan, the Trustee Fee shall accrue
from time to time at the Trustee'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
(which shall not be limited to any provision of law in regard to the
compensation of a trustee of an express trust) shall constitute the Trustee's
sole form of compensation for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties of the Trustee hereunder. No Trustee Fee shall be payable with
respect to the Companion Loans.
(b) The Trustee and the Fiscal Agent and any director, officer,
employee or agent of the Trustee and the Fiscal 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 Fiscal Agent, respectively, relating to
the exercise and performance of any of the powers and duties of the Trustee or
the Fiscal Agent, respectively, hereunder; provided, however, that none of the
Trustee, the Fiscal 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 Fiscal Agent, respectively, in the normal course of the Trustee's
or the Fiscal Agent, 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 Fiscal 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
Fiscal 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 Fiscal Agent, respectively, and appointment of a successor
thereto.
Section 8.06 Eligibility Requirements for Trustee and the Fiscal
Agent. The Trustee hereunder shall at all times be, and will be required to
resign if it fails to be, (i) a corporation, national bank, national banking
association or a trust company, organized and doing business under the laws of
any state or the United States of America, authorized under such laws to
exercise corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of the Servicer or the Special Servicer (except during any
period when the Trustee is acting as, or has become successor to, the Servicer
or the Special Servicer, as the case may be, pursuant to Section 7.02), (ii) an
institution insured by the Federal Deposit Insurance Corporation and (iii) with
respect to the Trustee only, an institution whose long-term senior unsecured
debt is rated "AA-" by Fitch and S&P and "Aa3" by Xxxxx'x, or, if a Fiscal Agent
meeting the requirements of Section 8.13 is then currently acting in such
capacity, not less than "A" by Fitch and "A-" by S&P and "A2" by Xxxxx'x (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 or any class of Grace Building Companion
Loan Securities); provided that the Trustee shall not cease to be eligible to
serve as such based on a failure to satisfy such rating requirements so long as
(i) the Trustee maintains a long-term unsecured debt rating of no less than
"BBB" from each of S&P and Fitch and "Baa2" from Xxxxx'x (or such rating as
would not, as evidenced in writing by such Rating Agency, result in a
qualification, downgrading or withdrawal of any of the ratings assigned to the
Certificates and, if applicable, any class of Grace Building Companion Loan
Securities) and (ii) a Fiscal Agent meeting the requirements of Section 8.13 has
been appointed by the Trustee and is then currently serving in such capacity.
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Trustee administers
the Upper-Tier REMIC 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 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. (a) The Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Depositor, the Servicer and the Special
Servicer and to all Certificateholders. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee acceptable
to the Servicer and the Directing Certificateholder by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee and to
the successor trustee or paying agent. A copy of such instrument shall be
delivered to the Servicer, the Special Servicer, the Certificateholders and the
Trustee, as applicable, by the Depositor. If no successor trustee shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee. Any
resignation or removal of the Trustee shall automatically result in the
termination of the Fiscal Agent hereunder
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee (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 reasonable control), to timely publish any report to be
delivered, published or otherwise made available by the Trustee pursuant to
Section 4.02 and such failure shall continue unremedied for a period of five
days, or if the Trustee fails to make distributions required pursuant to
Sections 3.05(c), 4.01 or 9.01, then the Depositor may remove the Trustee and
appoint a successor trustee acceptable to the Servicer, by written instrument,
in duplicate, which instrument shall be delivered to the Trustee so removed and
to the successor trustee in the case of the removal of the Trustee. A copy of
such instrument shall be delivered to the Servicer, the Special Servicer and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Servicer, one complete set to the Trustee (with a copy
to the Fiscal 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 and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
Upon any succession of the Trustee under this Agreement, the
predecessor Trustee shall be entitled to the payment of accrued and unpaid
compensation and reimbursement as provided for under this Agreement for services
rendered and expenses incurred (including without limitation, unreimbursed
Advances). No Trustee shall be personally liable for any action or omission of
any successor Trustee.
Section 8.08 Successor Trustee. (a) Any successor Trustee appointed
as provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor, the Servicer, the Special Servicer and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee shall become effective and such successor
Trustee without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as Trustee herein. The
predecessor Trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder (other than any
Mortgage Files at the time held on its behalf by a Custodian, which Custodian,
at Custodian's option shall become the agent of the successor Trustee), and the
Depositor, the Servicer, the Special Servicer and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required to more fully and certainly vest and confirm in the successor
Trustee all such rights, powers, duties and obligations, and to enable the
successor Trustee to perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee,
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the Servicer shall mail notice of the succession
of such trustee to the Depositor and the Certificateholders. If the Servicer
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee, such successor trustee shall cause such notice to be mailed
at the expense of the Servicer.
Section 8.09 Merger or Consolidation of Trustee and Fiscal Agent.
Any Person into which the Trustee or the Fiscal 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 Fiscal Agent shall be a
party, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee or the Fiscal Agent shall be the successor of the
Trustee or the Fiscal 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 will provide notice of such event to the
Servicer, the Special Servicer, the Depositor and the Rating Agencies.
Section 8.10 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may at the time be located, the
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
to do so, or in case an Event of Default shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof. All co-trustee fees shall be payable out of
the Trust Fund.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer or the Special Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians. The Trustee may, with the
consent of the Servicer, appoint one or more Custodians to hold all or a portion
of the Mortgage Files as agent for the Trustee. Each Custodian shall be a
depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus of at least $15,000,000 and shall be
qualified to do business in the jurisdiction in which it holds any Mortgage File
and shall not be the Depositor or any Affiliate of the Depositor. Each Custodian
shall be subject to the same obligations and standard of care as would be
imposed on the Trustee hereunder in connection with the retention of Mortgage
Files directly by the Trustee. The appointment of one or more Custodians shall
not relieve the Trustee from any of its obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of any Custodian. Any
Custodian appointed hereunder must maintain a fidelity bond and errors and
omissions policy in an amount customary for Custodians which serve in such
capacity in commercial mortgage loan securitization transactions.
Section 8.12 Access to Certain Information. (a) On or prior to the
date of the first sale of any Non-Registered Certificate to an Independent third
party, the Depositor shall provide to the Trustee three copies of any private
placement memorandum or other disclosure document used by the Depositor or its
Affiliate in connection with the offer and sale of the Class of Certificates to
which such Non-Registered Certificate relates. In addition, if any such private
placement memorandum or disclosure document is revised, amended or supplemented
at any time following the delivery thereof to the Trustee, the Depositor
promptly shall inform the Trustee of such event and shall deliver to the Trustee
a copy of the private placement memorandum or disclosure document, as revised,
amended or supplemented. 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 Trustee
believes such disclosure is appropriate, originals or copies of the following
items: (i) in the case of a Holder or prospective transferee of a Non-Registered
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Non-Registered Certificate
belongs, in the form most recently provided to the Trustee and (ii) in all cases
(in the case of clause (ii) also to the Grace Building Senior Companion
Noteholders with respect to the Grace Building Whole Loan and any Rating Agency
and/or Xxxxx'x rating the Grace Building Companion Loan Securities), (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 or the Grace Building Senior Companion
Noteholders since the Closing Date, (c) all Officer's Certificates delivered to
the Trustee since the Closing Date pursuant to Section 3.13, (d) all
accountants' reports delivered to the Trustee since the Closing Date pursuant to
Section 3.14, (e) any inspection report prepared by the Servicer, Sub-Servicer
or Special Servicer, as applicable, and delivered to the Trustee and Servicer in
respect of each Mortgaged Property pursuant to Section 3.12(a), (f) as to each
Mortgage Loan and Companion Loan pursuant to which the related Mortgagor is
required to deliver such items or the Special Servicer has otherwise acquired
such items, the most recent annual operating statement and rent roll of the
related Mortgaged Property and financial statements of the related Mortgagor and
any other reports of the Mortgagor collected by the Servicer, Sub-Servicer or
Special Servicer, as applicable, and delivered to the Trustee pursuant to
Section 3.12(c), together with the accompanying written reports to be prepared
by the Special Servicer and delivered to the Trustee pursuant to Section
3.12(b), (g) any and all notices, reports and Environmental Assessments
delivered to the Trustee with respect to any Mortgaged Property securing a
Defaulted Mortgage Loan and Companion 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 and Companion Loan entered into by the Servicer
or the Special Servicer and delivered to the Trustee pursuant to Section 3.20
(but only for so long as the affected Mortgage Loan and Companion Loan is part
of the Trust Fund), (i) any and all Officer's Certificates delivered to the
Trustee to support the Servicer's determination that any P&I Advance or
Servicing Advance was or, if made, would be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, as the case may be, (j) any and all of the
Mortgage Loan and Companion Loan documents contained in the Mortgage File, (k)
any and all Appraisals obtained pursuant to the definition of "Appraisal
Reduction" herein, (l) information regarding the occurrence of Servicing
Transfer Events as to the Mortgage Loans and (m) any and all Sub-Servicing
Agreements and any amendments thereto and modifications thereof. Copies of any
and all of the foregoing items will be available from the Trustee upon request;
provided, however, that the Trustee shall be permitted to require payment of a
sum sufficient to cover the reasonable costs and expenses of providing such
copies, except in the case of copies provided to the Directing Certificateholder
or the Rating Agencies, which shall be free of charge (except for extraordinary
or duplicate requests). In addition, without limiting the generality of the
foregoing, any Class J, Class K, Class L, Class M, Class N, Class P and Class NR
Certificateholder may upon request from the Trustee obtain a copy of any factual
report (other than the Asset Status Report) delivered to the Rating Agencies
under this Agreement. Nothing contained in this Section 8.12(a) shall be
construed to limit the reports and information described on Exhibit M attached
hereto and required to be delivered to the Directing Certificateholder without
charge.
(b) The Trustee shall make available to certain financial market
publishers, which initially shall be Bloomberg, L.P., on a monthly basis, all
CMSA reports and any other reports required to be delivered by the Trustee
pursuant to Article IV hereof. If any such information is provided on or before
August 18, 2004, the Trustee shall make the Prospectus available to Bloomberg,
L.P.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Trustee shall, in accordance with such reasonable rules and procedures as each
may adopt (which may include the requirement that an agreement that provides
that such information shall be used solely for purposes of evaluating the
investment characteristics of the Certificates be executed), also provide the
reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Trustee, to any
Certificateholder, the Underwriters, the Placement Agents, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the
Trustee, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Trustee
pursuant to this Section 8.12, the Trustee shall be entitled to indicate the
source of such information and the Trustee may affix thereto any disclaimer it
deems appropriate in its discretion. The Trustee shall notify Certificateholders
of the availability of any such information in any manner as it, in its sole
discretion, may determine. In connection with providing access to or copies of
the items described in the preceding paragraph, the Trustee may require (a) in
the case of Certificate Owners, a confirmation executed by the requesting Person
substantially in form and substance reasonably acceptable to the Trustee, as
applicable, generally to the effect that such Person is a beneficial holder of
Certificates, is requesting the information solely for use in evaluating such
Person's investment in the Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person in form and substance reasonably acceptable to
the Trustee, generally to the effect that such Person is a prospective purchaser
of a Certificate or an interest therein, is requesting the information solely
for use in evaluating a possible investment in Certificates and will otherwise
keep such information confidential. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
Section 8.13 The Fiscal Agent. (a) The Trustee hereby appoints ABN
AMRO Bank N.V. as the initial Fiscal Agent hereunder for the purposes of
exercising and performing the obligations and duties imposed upon the Fiscal
Agent hereunder. The Fiscal Agent shall at all times maintain a long-term
unsecured debt rating of no less than "AA-" from Fitch and "AA-" from S&P (and
if the Fiscal Agent is rated "AA-" by S&P, a short-term rating of at least "A-1"
in the case of S&P) and if any Grace Building Companion Loan Securities are
rated by Xxxxx'x, a long-term unsecured debt rating of "Aa3" by Xxxxx'x (or, in
the case of either Rating Agency or Xxxxx'x, such other rating as each such
Rating Agency or Xxxxx'x shall permit so long as it is accompanied by a
statement in writing that any of the then-current ratings assigned by such
Rating Agency or Xxxxx'x to the respective Classes of the Certificates and, if
applicable, any class of Grace Building Companion Loan Securities, would not be
downgraded, qualified (if applicable) or withdrawn as a result of such rating).
(b) In the event that the Servicer, the Special Servicer and the
Trustee fail to make a required Advance, the Fiscal Agent shall make such
Advance; provided that the Fiscal Agent shall not be obligated to make any
Advance that it deems to be nonrecoverable. The Fiscal Agent shall be entitled
to rely conclusively on any determination by the Servicer or the Trustee, as
applicable, that an Advance, if made, would not be recoverable. The Fiscal Agent
shall be entitled to reimbursement for each Advance made by it in the same
manner and to the same extent as the Trustee and the Servicer. The duties and
obligations of the Fiscal Agent shall consist only of making Advances as
provided in Section 7.05 and this Section 8.13. The Fiscal Agent shall not be
liable except for the performance of such duties and obligations. The Fiscal
Agent shall automatically be removed in the event of the resignation or removal
of the Trustee.
Section 8.14 Representations and Warranties of the Trustee. (a) The
Trustee hereby represents and warrants to the Depositor, the Servicer and the
Special Servicer and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans. Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Fiscal Agent the
Depositor, the Servicer, the Special Servicer and the Trustee (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by the
Trustee and required hereunder to be so paid on the Distribution Date following
the earlier to occur of (i) the final payment (or related Advance) or other
liquidation of the last Mortgage Loan or REO Property subject thereto or (ii)
the purchase or other liquidation by the Holders of the majority of the
Controlling Class, the Special Servicer, the Servicer or the Holders of the
Class LR Certificates, in that order of priority, of all the Mortgage Loans and
the Trust Fund's portion of 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 the Trust Fund's portion 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 (iii) exchange by the Sole
Certificateholder pursuant to the terms of the immediately succeeding paragraph,
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.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder (with the consent of the Servicer) shall have the right
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and the Trust Fund's portion of each REO Property
remaining in the Trust Fund as contemplated by clause (iii) of the first
paragraph of this Section 9.01 by giving written notice to all the parties
hereto no later than 60 days prior to the anticipated date of exchange. In the
event that the Sole Certificateholder elects to exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and the
Trust Fund's portion of each REO Property remaining in the Trust in accordance
with the preceding sentence, such Sole Certificateholder, not later than the
Distribution Date on which the final distribution on the Certificates is to
occur, shall deposit in the Certificate Account an amount in immediately
available funds equal to all amounts due and owing to the Depositor, the
Servicer, the Special Servicer, the Trustee and the Fiscal Agent hereunder
through the date of the liquidation of the Trust Fund that may be withdrawn from
the Certificate Account, or an escrow account acceptable to the respective
parties hereto, pursuant to Section 3.05(a) or that may be withdrawn from the
Distribution Account pursuant to Section 3.05(a), but only to the extent that
such amounts are not already on deposit in the Certificate Account. In addition,
the Servicer shall transfer all amounts required to be transferred to the
Lower-Tier Distribution Account on the P&I Advance Date related to such
Distribution Date in which the final distribution on the Certificates is to
occur from the Certificate Account pursuant to the first paragraph of Section
3.04(b) (provided, however, that if the Loan Pair is secured by REO Property,
the Trust Fund's portion of the REO Property which is being purchased pursuant
to the foregoing, the portion of the above-described purchase price allocable to
such Trust Fund's portion of REO Property shall initially be deposited into the
related REO Account). Upon confirmation that such final deposits have been made
and following the surrender of all its Certificates (other than the Residual
Certificates) on the final Distribution Date, the Trustee shall, upon receipt of
a Request for Release from the Servicer, release or cause to be released to the
Sole Certificateholder or any designee thereof, the Mortgage Files for the
remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Sole Certificateholder as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in the Trust Fund, and the Trust Fund shall be liquidated in
accordance with Section 9.02. Such transfers shall be subject to any rights of
any Sub-Servicers to service or perform select servicing functions with respect
to the Mortgage Loans. Solely for federal income tax purposes, the Sole
Certificateholder shall be deemed to have purchased the assets of the Lower-Tier
REMIC for an amount equal to the remaining Certificate Balance of its
Certificates (other than the Residual Certificates), plus accrued, unpaid
interest with respect thereto, and the Trustee shall credit such amounts against
amounts distributable in respect of such Certificates and Related Uncertificated
Lower-Tier Interests.
The obligations and responsibilities under this Agreement of the
Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal Agent and
the Companion Paying Agent shall terminate with respect to any Companion Loan to
the extent (i) its 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 hereto 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 the Trust Fund's portion of each REO Property remaining in
the Trust Fund as contemplated by clause (i) of the preceding paragraph by
giving written notice to the Trustee and the other parties hereto no later than
60 days prior to the anticipated date of purchase; provided, however, that the
Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates may so elect to purchase all of the
Mortgage Loans and the Trust Fund's portion of 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 the Trust Fund's
portion of 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 the Trust Fund's portion of 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 Trustee by letter to Certificateholders and each Rating
Agency and the Grace Building Companion Noteholders 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 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 Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Upper-Tier Distribution Account that are allocable to payments on
the Class of Certificates so presented and surrendered and to the Holders of the
Class NR Certificates any amounts remaining on deposit in the Excess Interest
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(e)) shall be allocated for these
purposes, in the amounts and in accordance with the priority set forth in
Sections 4.01(b), 4.01(d), 4.01(e) 4.01(j) and 4.01(k) 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(g).
Section 9.02 Additional Termination Requirements. In the event the
Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates purchases all of the Mortgage Loans and the
Trust Fund's portion of each REO Property remaining in the Trust Fund as
provided in Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Trustee shall specify the date of adoption of the plan of
complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the
Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return pursuant to
Treasury Regulations Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Trustee
shall sell all of the assets of the Trust Fund to the Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of
the Class LR Certificates, as applicable, for cash; and
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Uncertificated Lower-Tier
Interests and the Certificates, the Trustee shall distribute or credit, or
cause to be distributed or credited, to the Holders of the Class LR
Certificates (in the case of the Lower-Tier REMIC) and the Class R
Certificates (in the case of the Upper-Tier REMIC) all cash on hand (other
than cash retained to meet claims), and the Trust Fund and each of the
Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at that time.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration. (a) The Trustee shall make
elections or cause elections to be made to treat each of the Lower-Tier REMIC
and the Upper-Tier REMIC as a REMIC under the Code and, if necessary, under
Applicable State and Local Tax Law. Each such election will be made on Form 1066
or other appropriate federal tax return for the taxable year ending on the last
day of the calendar year in which the Uncertificated Lower-Tier Interests and
the Certificates are issued. For the purposes of the REMIC election in respect
of the Upper-Tier REMIC, each Class of the Regular Certificates shall be
designated as the "regular interests" (in the case of the Class NR Certificates,
exclusive of the portion thereof, representing the right to Excess Interest and
amounts in the Excess Interest Distribution Account) and the Class R
Certificates shall be designated as the sole class of "residual interests" in
the Upper-Tier REMIC. For purposes of the REMIC election in respect of the
Lower-Tier REMIC, each Class of Uncertificated Lower-Tier Interests shall be
designated as the "regular interests" and the Class LR Certificates shall be
designated as the sole class of "residual interests" in the Lower-Tier REMIC.
None of the Special Servicer, the Servicer nor the Trustee shall permit the
creation of any "interests" (within the meaning of Section 860G of the Code) in
the 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 Trustee shall act on behalf of each REMIC in relation to any
tax matter or controversy involving any REMIC and shall represent each REMIC in
any administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority with respect thereto. The legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the Trustee shall be entitled to reimbursement therefor out of
amounts attributable to the Mortgage Loans and any REO Properties on deposit in
the Certificate Account as provided by Section 3.05(a) unless such legal
expenses and costs are incurred by reason of the Trustee's willful misfeasance,
bad faith or gross negligence. The Holder of the largest Percentage Interest in
each of the (i) Class R and (ii) Class LR Certificates shall be designated, in
the manner provided under Treasury Regulations Section 1.860F-4(d) and temporary
Treasury Regulations Section 301.6231(a)(7)-1T, as the "tax matters person" of
the (i) Upper-Tier REMIC and (ii) the Lower-Tier REMIC, respectively. By their
acceptance thereof, the Holders of the largest Percentage Interest in each of
the (i) Class R and (ii) Class LR Certificates hereby agrees to irrevocably
appoint the Trustee as their agent to perform all of the duties of the "tax
matters person" for the (i) Upper-Tier REMIC and (ii) the Lower-Tier REMIC,
respectively.
(d) The Trustee shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC
created hereunder, 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 Trustee without any right of reimbursement therefor.
(e) The Trustee shall provide or cause to be provided (i) to any
Transferor of a Class R Certificate or Class LR Certificate such information as
is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811, within 30
days after the Closing Date, the name, title, address and telephone number of
the "tax matters person" who will serve as the representative of each of the
Lower-Tier REMIC and the Upper-Tier REMIC created hereunder.
(f) The Trustee shall take such actions and shall cause the Trust
Fund to take such actions as are reasonably within the Trustee's control and the
scope of its duties more specifically set forth herein as shall be necessary to
maintain the status of each of the Lower-Tier REMIC and the Upper-Tier REMIC as
a REMIC under the REMIC Provisions. Neither the Servicer nor the Special
Servicer shall knowingly or intentionally take any action, cause the Trust Fund
to take any action or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) endanger the status of the 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, and if the Grace Building Whole Loan is involved,
any similar event with respect to a related securitization trust holding a Grace
Building Senior Companion Loan, in each case, an "Adverse REMIC Event") unless
the Trustee receives an Opinion of Counsel (at the expense of the party seeking
to take such action or, if such party fails to pay such expense, and the Trustee
determines that taking such action is in the best interest of the Trust Fund and
the Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the Trustee) to the effect that the contemplated action will not,
with respect to the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC
created hereunder, endanger such status or, unless the Trustee determines in its
sole discretion to indemnify the Trust Fund against such tax, result in the
imposition of such a tax (not including a tax on "net income from foreclosure
property"). The Trustee shall not take or fail to take any action (whether or
not authorized hereunder) as to which it has received an Opinion of Counsel to
the effect that an Adverse REMIC Event could occur with respect to such action.
The Trustee may consult with counsel to make such written advice, and the cost
of same shall be borne by the party seeking to take the action not expressly
permitted by this Agreement, but in no event at the expense of the Trustee. At
all times as may be required by the Code, the Trustee will to the extent within
its control and the scope of its duties more specifically set forth herein,
maintain substantially all of the assets of each of the 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 Section 860G(c) of the Code 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 Trustee from contesting, at
the expense of the Trust Fund (other than as a consequence of a breach of its
obligations under this Agreement), any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The Trustee is hereby authorized to and shall segregate, into
a separate non-interest bearing account, the net income from any "prohibited
transaction" under Section 860F(a) of the Code or the amount of any taxable
contribution to the Lower-Tier REMIC or the Upper-Tier REMIC after the Startup
Day that is subject to tax under Section 860G(d) of the Code and use such income
or amount, to the extent necessary, to pay such prohibited transactions tax. To
the extent that any such tax (other than any such tax paid in respect of "net
income from foreclosure property") is paid to the Internal Revenue Service or
applicable state or local tax authorities, the Trustee shall retain an equal
amount from future amounts otherwise distributable to the Holders of Residual
Certificates (as applicable) and shall distribute such retained amounts, (x) in
the case of the Uncertificated Lower-Tier REMIC Interests, to the Upper-Tier
REMIC to the extent they are fully reimbursed for any Collateral Support Deficit
arising therefrom and then to the Holders of the Class LR Certificates in the
manner specified in Section 4.01(b) and (y) in the case of the Upper-Tier REMIC,
to the Holders of Class A, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class NR and
Class X Certificates, as applicable, in the manner specified in Section 4.01(a),
to the extent they are fully reimbursed for any Collateral Support Deficit,
arising therefrom and then to the Holders of the Class R Certificates. None of
the Trustee, the Servicer or the Special Servicer shall be responsible for any
taxes imposed on the Lower-Tier REMIC or the Upper-Tier REMIC except to the
extent such taxes arise as a consequence of a breach of their respective
obligations under this Agreement which breach constitutes willful misfeasance,
bad faith, or negligence by such party.
(h) The Trustee (but only to the extent, if any, specifically
required to maintain books and records hereunder) shall, for federal income tax
purposes, maintain books and records with respect to each of the Lower-Tier
REMIC and the Upper-Tier REMIC on a calendar year and on an accrual basis or as
otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to the Lower-Tier REMIC and the Upper-Tier REMIC unless
the Trustee shall have received an Opinion of Counsel (at the expense of the
party seeking to make such contribution) to the effect that the inclusion of
such assets in the 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) The Trustee shall not 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 the
Certificate Balance or Notional Amount of each Class of Certificates
representing a "regular interest" in the Upper-Tier REMIC and by which the
Lower-Tier Principal Amount of each Class of Uncertificated Lower-Tier Interests
representing a "regular interest" in the Lower-Tier REMIC would be reduced to
zero is the Rated Final Distribution Date of any Mortgage Loan.
(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 Use of Agents. (a) The Trustee shall execute all of
its obligations and duties under this Article X through its Corporate Trust
Office. The Trustee may execute any of its obligations and duties under this
Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
(b) The Trustee may execute any of its obligations and duties under
this Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
Section 10.03 Depositor, Servicer and Special Servicer to Cooperate
with Trustee. (a) The Depositor shall provide or cause to be provided to the
Trustee within ten (10) days after the Depositor receives a request from the
Trustee, all information or data that the Trustee reasonably determines to be
relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, Prepayment
Assumptions and projected cash flow of the Certificates.
(b) The Servicer and the Special Servicer shall each furnish such
reports, certifications and information, and upon reasonable notice and during
normal business hours, access to such books and records maintained thereby, as
may relate to the Certificates or the Trust Fund and as shall be reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
Section 10.04 Appointment of REMIC Administrators. (a) The Trustee
may appoint at the Trustee's expense, one or more REMIC Administrators, which
shall be authorized to act on behalf of the Trustee in performing the functions
set forth in Section 10.01 herein. The Trustee shall cause any such REMIC
Administrator to execute and deliver to the Trustee 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 Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible and liable for all acts and omissions of the REMIC
Administrator. Each REMIC Administrator must be acceptable to the Trustee 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 Trustee hereby agrees to act in such
capacity in accordance with the terms hereof. If LaSalle Bank National
Association is removed as Trustee, then LaSalle Bank National Association 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 Trustee
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 Servicer, the Special Servicer and the Depositor. The
Trustee 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 Trustee may appoint a successor REMIC Administrator, in
which case the Trustee 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 Trustee.
[End of Article X]
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. (a) This Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders or the Companion Holders:
(i) to cure any ambiguity to the extent that it does not materially
and adversely affect any Certificateholder;
(ii) to cause the provisions in this Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus
with respect to the Certificates, the Trust or this Agreement or to
correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of
any Certificateholder;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or either 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 such 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 or any Companion Holder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided
that (a) the P&I Advance Date shall in no event be later than the Business
Day prior to related Distribution Date, (b) such change shall not, as
evidenced by an Opinion of Counsel (at the expense of the party requesting
such amendment or at the expense of the Trust Fund if the requesting party
is the Trustee), adversely affect in any material respect the interests of
any Certificateholder or any Companion Holder and (c) such change shall
not result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates or Grace
Building Companion Loan Securities, 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 the REMIC "residual interests,"
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 and, in the
case of the Grace Building Companion Loan, a Rating Agency rating any
class of Grace Building Companion Loan Securities, to such effect; and
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency and, in the case of the Grace Building
Companion Loan, a Rating Agency rating any class of Grace Building
Companion Loan Securities, provided that such change shall not result in
the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates or Grace Building Companion Loan
Securities, 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 such Mortgage Loan Seller.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 662/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, 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 the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Grace Building
Companion Loan Securities by any Rating Agency or any Rating Agency then
rating any class of Grace Building Senior Companion Loan Securities, amend
the Servicing Standards.
(c) Notwithstanding the foregoing, none of the Trustee, the Fiscal
Agent, the Depositor, the Servicer nor the Special Servicer will be required to
consent to any amendment hereto without having first received an Opinion of
Counsel (at the Trust Fund's expense) to the effect that such amendment is
permitted hereunder and that such amendment or the exercise of any power granted
to the Servicer, the Depositor, the Special Servicer, the Trustee, the Fiscal
Agent 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, cause
the Grantor Trust to fail to qualify as a grantor trust or cause a REMIC wherein
any Grace Building Companion Loan Securities are "regular interests" to fail to
qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement describing the amendment to each Certificateholder and
each Grace Building Companion Noteholder and the Trustee and shall furnish a
copy of such amendment to each Rating Agency and any Rating Agency and/or
Xxxxx'x rating any Grace Building Companion Loan Securities.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Servicer or the Trustee requests any amendment of
this Agreement in furtherance of the rights and interests of Certificateholders,
the cost of any Opinion of Counsel required in connection therewith pursuant to
Section 11.01(a) or (c) shall be payable out of the Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates and any class of Grace Building Companion Loan
Securities.
(i) Notwithstanding anything to the contrary in Section 11.01, with
respect to the Grace Building Whole Loan, this Agreement may not be amended to
materially adversely affect the rights of the Grace Building Companion
Noteholders without the consent of each affected Grace Building Companion
Noteholder, or in the case of any Grace Building Companion Loan that has been
securitized, written confirmation from each Rating Agency (including Xxxxx'x)
rating the related Grace Building Companion Loan Securities that such amendment
will not result in the downgrade, qualification or withdrawal of its ratings of
such securities.
Section 11.02 Recordation of Agreement; Counterparts. (a) To the
extent permitted by applicable law, this Agreement is subject to recordation in
all appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Trustee at the expense of
the Depositor on direction by the Special Servicer and with the consent of the
Depositor (which may not be unreasonably withheld), but only upon direction
accompanied by an Opinion of Counsel (the cost of which shall be paid by the
Depositor) to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 11.03 Limitation on Rights of Certificateholders. (a) The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as herein before provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class evidencing not less than
25% of the related Percentage Interests in such Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. The Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it hereunder or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Holders of Certificates unless
such Holders have offered to the Trustee reasonable security against the costs,
expenses and liabilities which may be incurred therein or hereby. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.04 Governing Law. This Agreement and the Certificates
shall be construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 11.05 Notices. Any communications provided for or permitted
hereunder shall be in writing and, unless otherwise expressly provided herein,
shall be deemed to have been duly given if personally delivered at or 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
00000, Attention: Xxxxxx Xxxxx, Vice President, 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-CIBC9, telecopy number: (000) 000-0000; (iii) in the case of the Special
Servicer, ARCap Servicing, Inc., 0000 X. XxxXxxxxx Xxxx., Xxxxx 000, Xxxxxx,
Xxxxx 00000; Attention: Xxxxx X. Xxxxxxx, telecopy number: (000) 000-0000; (iv)
in the case of the Trustee, LaSalle Bank National Association, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset Backed Securities
Trust Services Group-JPMorgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass Through Certificates, Series 2004-CIBC9, telecopy
number: (000) 000-0000; (v) in the case of the Fiscal Agent, ABN AMRO Bank N.V.,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Asset-Backed Securities Trust Services-JPM 2004-CIBC9; (vi) in the case of the
Rating Agencies, (a) 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, and
(b) Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, Attention:
Commercial Mortgage-Backed Securities Group, telecopy number: (000) 000-0000;
(vii) in the case of the Mortgage Loan Sellers, (a) JPMorgan Chase Bank, 270
Park Avenue, 10th Floor, Attention: Xxxxxx Xxxxx, Vice President, telecopy
number: (000) 000-0000; (b) CIBC Inc., 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Real Estate Finance Group, telecopy number: (212) 667
5656; (viii) in the case of the Directing Certificateholder, ARCap CMBS Fund II
REIT, Inc., 0000 Xxxxx XxxXxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx, 00000
Attention: Xxxxx X. Xxxxxxx, telecopy number: (000) 000-0000; and (ix) in the
case of the Companion Holder for the Grace Building Senior Companion Notes, X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, Vice President, telecopy number: (212)
834 6593; (x) in the case of the Companion Holder with respect to the Ridgemont
Companion Loan, Pontchartrain Companion Loan, Portage Companion Loan and
Gulfbrook 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. 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 Distribution Accounts, the Excess Interest Distribution
Account, the Gain-on-Sale Reserve Account, the Interest Reserve Account and, if
established, the REO Account, and all reinvestment earnings on such amounts, and
all of the Depositor's right, title and interest in and to the proceeds of any
title, hazard or other Insurance Policies related to such Mortgage Loans and
(ii) this Agreement shall constitute a security agreement under applicable law.
This Section 11.07 shall constitute notice to the Trustee pursuant to any of the
requirements of the applicable UCC.
Section 11.08 Successors and Assigns; Third Party 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. In addition, the
Certificateholders and Companion Holders (and its agents, including any trustee
or servicer with respect to the Grace Building Companion Notes) shall be third
party beneficiaries of this Agreement. 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 (and any
Rating Agency and/or Xxxxx'x for any Grace Building Companion Loan Securities to
the extent applicable to the Grace Building Whole Loan) 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 Trustee , the Servicer
or the Special Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 3 of the Mortgage Loan Purchase Agreement.
(b) The Servicer shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Servicer and the Special
Servicer shall promptly furnish to each Rating Agency (and any Rating Agency
and/or Xxxxx'x for any Grace Building Companion Loan Securities to the extent
applicable to the Grace Building Whole Loan) copies of inspection reports and
other items delivered to each of the Servicer and Special Servicer pursuant to
Sections 3.12(a) and 3.12(b).
(d) The Trustee shall promptly furnish notice to the Rating Agencies
of (i) any change in the location of the Distribution Accounts and (ii) the
final payment to any Class of Certificateholders.
(e) The Trustee, the Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency (and each Rating Agency and/or
Xxxxx'x rating any Grace Building Companion Loan Securities) with respect to
each Mortgage Loan such information as the Rating Agency shall reasonably
request and which the Trustee, the Servicer or Special Servicer, can reasonably
provide in accordance with applicable law and without waiving any
attorney-client privilege relating to such information or violating the terms of
this Agreement or any Mortgage Loan documents. The Trustee, the Servicer and
Special Servicer, as applicable, may include any reasonable disclaimer it deems
appropriate with respect to such information. Notwithstanding anything to the
contrary herein, nothing in this Section 11.10 shall require a party to provide
duplicative notices or copies to the Rating Agencies with respect to any of the
above listed items.
[End of Article XI]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP., Depositor
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Servicer
By: /s/ Xxxxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
ARCAP SERVICING, INC.,
Special Servicer
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
ABN AMRO BANK N.V.,
Fiscal Agent
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: First Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of June, 2004, before me, a notary public in and for
said State, personally appeared _______________________ 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.
--------------------------------
Notary Public
[SEAL]
My commission expires:
---------------------------------------
STATE OF _________________)
) ss.:
COUNTY OF ________________)
On the _____ day of June, 2004, before me, a notary public in and or
said State, personally appeared ____________________ known to me to be a
____________________ 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.
--------------------------------
Notary Public
[SEAL]
My commission expires:
---------------------------------------
STATE OF ________________)
) ss.:
COUNTY OF _______________)
On the ___ day of June, 2004, before me, a notary public in and for
said State, personally appeared ___________________ known to me to be a
___________________ of ARCap Servicing, Inc., that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such national banking association, and acknowledged to me that such national
banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------------------
Notary Public
[SEAL]
My commission expires:
---------------------------------------
STATE OF ______________)
) ss.:
COUNTY OF _____________)
On the _____ day of June, 2004, before me, a notary public in and or
said State, personally appeared ____________________ known to me to be a
-------------------- of LaSalle Bank National Association, that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------------------
Notary Public
[SEAL]
My commission expires:
---------------------------------------
STATE OF _______________)
) ss.:
COUNTY OF ______________)
On the _____ day of June, 2004, before me, a notary public in and
for said State, personally appeared ____________________ and ________________,
known to me to be a ____________ and ____________ of ABN AMRO Bank N.V., 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.
--------------------------------
Notary Public
[SEAL]
My commission expires:
---------------------------------------
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(Available upon request to the Depositor)
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services Group -
JPMorgan 2004-CIBC9
X.X. Xxxxxx Xxxxx 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 Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9
----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of June 30, 2004 (the Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, GMAC Commercial Mortgage Corporation, as Servicer, ARCap
Servicing, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent, on behalf of the holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC9 (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.
[ ] 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 Trustee (or its agent) with respect to distributions to 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.
------------
* Purchaser must include one of the following two certifications.
** Each Purchaser must include one of the two alternative certifications.
*** Does not apply to a transfer of Class R or Class LR Certificates.
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:
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:
------------
**** 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.
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/she] 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-CIBC9, 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"), or 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 any of the [Upper-Tier REMIC], [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 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 any partnership, trust or other pass-through entity, by any
person that is a Non-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 June 30, 2004, by and among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as Depositor, GMAC Commercial Mortgage
Corporation, as Servicer, ARCap Servicing, Inc., as Special Servicer, LaSalle
Bank National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent(the "Pooling and Servicing Agreement") 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], [the 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] [the Lower-Tier REMIC] pursuant to
Section 10.01(c) of the Pooling and Servicing Agreement, and, in such event,
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 the Class [R]
[LR] Certificate.
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]
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]
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust - CMBS
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC9
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9
----------------------------------------------------------------
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
REQUEST FOR RELEASE
__________[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: [___________________________________]
Re: X.X. Xxxxx Commercial Mortgage Securities Corp,
Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC9, 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 June 30, 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, ARCap Servicing, Inc., as Special Servicer,
ABN AMRO Bank N.V., as Fiscal 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
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services Group - JPMorgan 2004-CIBC9
X.X. Xxxxxx Xxxxx 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 Chase Commercial Mortgage Securities
Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9, Class
__ (the "Certificate") issued pursuant to that certain Pooling and Servicing
Agreement, dated June 30, 2004 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as depositor
("Depositor"), GMAC Commercial Mortgage Corporation, as Servicer ("Servicer"),
ARCap Servicing, Inc., as special servicer ("Special Servicer"), LaSalle Bank
National Association, as trustee ("Trustee"), and ABN AMRO Bank, as fiscal agent
("Fiscal 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 "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
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 Dealers, 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 STATEMENT TO CERTIFICATEHOLDERS
(Available upon request to the Trustee.)
EXHIBIT H
OMNIBUS ASSIGNMENT
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT
ASSIGNOR] (the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto "LaSalle Bank National Association, N.A., as trustee
for the registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9" (the
"Assignee"), having an office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attn: Asset-Backed Securities Trust Services Group/X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Series 2004-CIBC9, 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
FORM OF REGULATION S TRANSFER CERTIFICATE
DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9
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-CIBC9
Class
----------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated June 30, 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, ARCap
Servicing, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent, on behalf of the holders of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC9, 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 Fiscal 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.
** Select appropriate depository.
EXHIBIT I-2
FORM OF REGULATION S TRANSFER CERTIFICATE
AFTER RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9
X.X. Xxxxxx Xxxxx 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 Chase Commercial Mortgage Securities
Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9
Class
----------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated June 30, 2004 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, GMAC Commercial Mortgage Corporation, as Servicer, ARCap
Servicing, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent, on behalf of the holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC9, 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 Fiscal 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
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: [X.X. Xxxxxx Xxxxx Commercial Mortgage Corporation
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9]
GMAC Commercial Mortgage Corporation
000 Xxxxx Xxxx
Xxxxxxx, XX 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: X.X. Xxxxxx Chase Commercial Mortgage Corporation
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9
----------------------------------------------------------------
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, dated June 30, 2004 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as depositor
("Depositor"), GMAC Commercial Mortgage Corporation, as servicer ("Servicer"),
ARCap Servicing, Inc., as special servicer ("Special Servicer"), LaSalle Bank
National Association, as trustee ("Trustee"), and ABN AMRO Bank N.V., as fiscal
agent "Fiscal Agent"). 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 THE RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9
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-CIBC9
Class
----------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated June 30, 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, ARCap Servicing, Inc., as Special Servicer,
LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent, on behalf of the holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC9. 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
------------
* Select appropriate depository.
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 Fiscal 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
Controlling Class Certificateholder's Reports Checklist
Information Format Frequency
----------------------------------------------- ------------ -------------------------
Property Operating Statement (Servicer)* Actual PDF/TIF As received/Quarterly
Property Rent Roll (Servicer)* Actual PDF/TIF As received/Quarterly
Other Financials as required by
loan documents (Servicer) Actual PDF/TIF As received
Property Inspection (Servicer)* Actual PDF/TIF As received/Quarterly
Payments Received After Determination Date
Report (Servicer)(1) Monthly Excel P&I Advance Date
Mortgage Loans Delinquent Report (Servicer)(2) Monthly Excel 30th of each month
Interest on Advance Reconciliation (Servicer) Monthly Excel Distribution Date
CMSA Setup File (Issuer/Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Property File (Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Loan Periodic Update File (Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Financial File (Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
Distribution Statement (Trustee) Monthly Excel/PDF Monthly/Distribution Date
CMSA Bond File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Collateral File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Supplemental Reports (Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
Operating Statement Analysis Report (Servicer)* CMSA IRP Access/Excel Monthly/Distribution Date
NOI Adjustment Worksheet (Servicer)* CMSA IRP Access/Excel Monthly/Distribution Date
Documentation Exceptions Report (Trustee) Quarterly Access/Excel Monthly/Distribution Date
* Submit electronically with ARCap Naming Convention.
Footnotes:
(1) On the P&I Advance Date following the Determination Date for the related
Bond Certificateholder Distribution, a list of all mortgage loans which
are delinquent as to the applicable Distribution Period on the P&I Advance
Date. This list should represent all delinquent loans that required a P&I
Advance be made.
(2) On the last day of the month (30th), for all delinquencies reported in #1
above, a list of a) all mortgage loans which remain delinquent for such
Distribution period (along with the number of days delinquent) accompanied
with any reason, in Servicer's opinion, for the mortgage loans continued
delinquency, along with an explanation of Servicer's attempts to cure.
(3) [_______], Inc. requests that the above information be organized in
ascending Prospectus Loan I.D. order and forwarded on each of the above
listed dates via E-Mail to the following address. CMSA reports and data
files shall be available via the Servicer's or Trustee's Website.
[_____] [_____]
EXHIBIT N
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)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9
X.X. Xxxxxx Xxxxx 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 Chase Commercial Mortgage Securities
Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC9, Class
-------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated June 30, 2004 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor, GMAC Commercial
Mortgage Corporation, as Servicer, ARCap Servicing, Inc., as Special Servicer,
LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent, on behalf of the holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC9. 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 Fiscal 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 O
FORM OF TRANSFER CERTIFICATE OF
FROM REGULATION S BOOK-ENTRY CERTIFICATE
TO RULE 144A GLOBAL BOOK-ENTRY CERTIFICATE
DURING BOOK-ENTRY PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9
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-CIBC9,
Class
--------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated June 30, 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, ARCap Servicing, Inc., as Special Servicer,
LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent, on behalf of the holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC9. 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 Fiscal 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 P
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9
X.X. Xxxxxx Xxxxx 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 Chase Commercial Mortgage Securities
Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC9, Class
---------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated June 30, 2004 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, GMAC Commercial Mortgage Corporation, as Servicer, ARCap
Servicing, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent, on behalf of the holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-CIBC9 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 Fiscal Agent, the Servicer and the Special Servicer.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
EXHIBIT Q
FORM CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
CERTIFICATION
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2004-CIBC9 (the "Trust")
I, Xxxxxx X. Xxxxxxxx, the President and Chief Executive Officer of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., the depositor into the
above-referenced Trust, certify that:
(A) 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;
(B) 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;
(C) Based on my knowledge, the distribution or servicing information required
to be provided to the trustee by the Servicer and the special servicer
under the pooling and servicing agreement for inclusion in these reports
is included in these reports;
(D) Based on my knowledge and upon the annual compliance statement included in
this annual report and required to be delivered to the trustee 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
(E) 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.
(F) In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [_____].
Date:
----------------------
-------------------------------------------
President and Chief Executive Officer
X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp.
EXHIBIT R-1
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY TRUSTEE
CERTIFICATION
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2004-CIBC9 (the "Trust")
I, [identify the certifying individual], a [title] of [-----],
certify to X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
(A)I have reviewed the annual report on Form 10-K for the fiscal year [2003],
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;
(B) 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
(C) Based on my knowledge, the distribution or servicing information provided
to the trustee by the Servicer under the pooling and servicing agreement,
for inclusion in these reports is included in these reports.
Date:
-------------------------
---------------------------------------
[Title]
[_____]
EXHIBIT R-2
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY Servicer
CERTIFICATION
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2004-CIBC9 (the "Certificates")
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 June
30, 2004 (the "Pooling and Servicing Agreement"), among X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., as depositor (the "Depositor"), the
Servicer, ARCap Servicing, Inc., as Special Servicer, LaSalle Bank National
Association, as trustee (the "Trustee") and ABN AMRO Bank N.V., as fiscal 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:
(A) 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 Trustee under the Pooling and Servicing Agreement
and all required reports required to be submitted by the Servicer to the
Trustee pursuant to the Pooling and Servicing Agreement (the "Servicer
Reports") have been submitted by the Servicer to the Trustee;
(B) 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[__];
(C) 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
(D) 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]
EXHIBIT R-3
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY SPECIAL SERVICER
CERTIFICATION
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2004-CIBC9 (the "Certificates")
I, [identify the certifying individual], a [title] of [_____],
certify to X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. and their
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification in delivering the Certification required by
the pooling and servicing agreement relating to the Certificates (capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the pooling and servicing agreement), that:
(A) I have reviewed the servicing reports or information relating to the trust
fund delivered by the special servicer to the Servicer covering the fiscal
year 2003;
(B) Based on my knowledge, the servicing information in these reports
delivered by the special servicer, 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 these servicing reports;
(C) Based on my knowledge, the servicing information required to be provided
to the Servicer by the special servicer under the pooling and servicing
agreement for inclusion in the reports to be filed by the Trustee is
included in the servicing reports delivered by the special servicer to the
Servicer;
(D) 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 compliance certificate delivered by the
special servicer under section 3.13 of the pooling and servicing
agreement, the special servicer has fulfilled its obligations under the
pooling and servicing agreement in all material respects in the year to
which such review applies; and
(E) The accountant's statement delivered pursuant to section 3.14 of the
pooling and servicing agreement discloses all significant deficiencies
relating to the 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.
Date:
-------------------------
---------------------------------------
[Title]
[_____]
EXHIBIT S
INITIAL COMPANION HOLDERS
Grace Building Companion Loan:
[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]
Ridgemont 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]
Pontchartrain 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]
Portage 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]
Gulfbrook 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]
EXHIBIT T
ARCap Naming Convention for Electronic File Delivery
Deal Name - Prospectus Loan I.D. - Statement Type - Statement Date - Months
Covered by Statement
For Example:
JPM2000C10-00001.1-OS-12312000-12
JPM2000C10-00001.2-OS-12312000-12
JPM2000C10-00001.1-OSAR-12312000-12
JPM2000C10-00001.1-FS-12312000-12
JPM2000C10-00001.1-RR-12312000
DLJ2000CKP1-00150.1-OS-12312000-12
DLJ2000CKP1-00001.1-OSAR-12312000-12
DLJ2000CKP1-00001.1-FS-12312000-12
DLJ2000CKP1-00001.1-RR-12312000
DLJ2000CKP1-00001.1-PI-12312000
Please note there should not be any special characters in the
Deal Name, i.e. no spaces, no dashes, no underscores, etc.
The Prospectus I.D. should have five leading characters, a
decimal point, and the Property # (1,2,3,etc).
The Statement Types are: OS - Operating Statement (PDF or TIF format)
OSAR- Operating Statement Analysis Report
NOI- NOI ADJ Worksheet
FS- Borrower Financial Statement (PDF or TIF)
RR- Rent Roll (Excel or PDF or TIF)
PI- Property Inspection (Excel format)
HS- Healthcare Survey
FR- Franchise Annual Compliance Report
The Statement Date should be eight characters long - MODAYEAR where MO = months
from 01 to 12, DAY = day of month from 01 to 31, YEAR = year such as 1999 or
2000 or 2001.
The Months Covered by the Statement should range from 01 to 12.
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 June 30, 2004 (the "Pooling and Servicing Agreement"),
among the Servicer, LaSalle Bank National Association, as Trustee,
and others.
Date: _________, 20___
Re: X.X. Xxxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2004-CIBC9
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 Standards,
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 Standards) 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 Servicer has received opinions of counsel stating that the
Trustee possesses a valid, perfected first priority security interest in
the defeasance collateral and that the documents executed in connection
with the defeasance are enforceable in accordance with their respective
terms.]
(xi) 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.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:
---------------------------------
Name:
Title:
EXHIBIT V
INFORMATION REQUEST FROM CERTIFICATEHOLDER, BENEFICIAL OWNER OR
PROSPECTIVE PURCHASER
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust
Services Group - JPMCC Series 2004-CIBC9
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC9
Pursuant to the Pooling and Servicing Agreement, dated as of June
30, 2004 (the "Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, GMAC Commercial Mortgage Corporation, as
Servicer, ARCap Servicing, Inc., as Special Servicer, LaSalle Bank National
Association, as Trustee, and ABN AMRO Bank, N.V., as Fiscal Agent, with respect
to the X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-CIBC9 (the "Certificates"), the
undersigned hereby certifies and agrees as follows:
(A) The undersigned is a [Holder] [Certificate Owner] [prospective
purchaser] of $___________ aggregate [Certificate
Balance/Notional Amount] of the Class ____ Certificates.
(B) The undersigned is requesting access to the information (the
"Information") on the Trustee's Internet Website pursuant to
Section 4.02 of the Agreement.
(C) 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 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 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 is contemplating the purchase
of any Certificate, but only if such person or entity confirms
in writing such 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.
(D) 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 Certificate pursuant to
Section 5 of the Securities Act or under any other applicable
law.
Capitalized terms not defined herein shall have the same meaning
ascribed to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
---------------------------------
[HOLDER] [CERTIFICATE OWNER]
[PROSPECTIVE PURCHASER]
By:
------------------------------
Name:
Title:
Telephone No.:
EXHIBIT W
TRUSTEE CERTIFICATION/EXCEPTION REPORT
[DATE]
To the Persons Listed on the attached Schedule A
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-CIBC9
----------------------------------------------------------------
\
Ladies and Gentlemen:
In accordance with Section 2.02 of the June [____], 2004 (the
"Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as Depositor, GMAC Commercial Mortgage Corporation, as Servicer, ARCAP
Servicing, Inc., as Special Servicer, ABN AMRO Bank N.V., as Fiscal Agent, and
LaSalle Bank National Association, as Trustee, the undersigned, as Trustee,
hereby certifies that, except as noted on the attached Trustee Exception Report,
as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or for which a Liquidation Event has occurred) the
Trustee has, subject to Section 2.02(e) of the Pooling and Servicing Agreement,
reviewed the documents delivered to it pursuant to Section 2.01 of the Pooling
and Servicing Agreement and has determined 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 the required officer's
certificate), if any, of the definition of "Mortgage File," as applicable, are
in its possession, (ii) the foregoing documents delivered or caused to be
delivered by the Mortgage Loan Sellers have been reviewed by it or by a
Custodian on its behalf and appear regular on their face and appear to be
executed and to relate to such Mortgage Loan, and (iii) based on such
examination and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule with respect to the items specified in clauses (iv),
(vi) and (viii)(c) in the definition of "Mortgage Loan Schedule" is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION,
as Trustee
By:
---------------------------------
Name:
Title:
TRUSTEE EXCEPTION REPORT
(Available upon request to the Trustee.)
TRUSTEE CERTIFICATION
SCHEDULE A
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ARCap Servicing, Inc.
0000 X. XxxXxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Standard & Poor's Ratings Services,
a division of the XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABN AMRO Incorporated
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT X
Monthly Additional Report on Recoveries and Reimbursement
Securitization Name
Advance Interest Reconciliation Report
As of
Determination Date
====================================================================================================================================
Property
P&I T&I Protection Net
Advances Advances Advances Advance Late Charges Advance
GMACCM Loan # Property Name UPB Outstanding Outstanding Outstanding Interest Collected Interes
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
Questions or comments contact Investor Relations at GMACCM at (000) 000-0000.
EXHIBIT Y
Realized Loss Form
SCHEDULE 1
Mortgage Loans Containing Additional Debt
Loan Number Property Name
----------- --------------------------------------------------------------
6 Harbour Lights Apartment
9 Ridgemont Apartments and Mountain Brook Apartments Portfolio
00 Xxxxxxxx Xxxxxx Shopping Center
00 Xxxxxxx Xxxxx Xxxx Center
00 Xxxxxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx
53 Portage Commerce Park Portfolio
00 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx
00 Xxxxx Xxxxxx Center
SCHEDULE 2
Mortgage Loans which Initially Pay Interest Only
Loan Number Property Name
----------- --------------------------
17 Price Xxxxxxx Xxxxx
00 Xxxxxxx Xxxxx Xxxx Center
00 Xxxxxxxx Xxxxxx Xxxxxxxxxx
00 Xxxxxxxxx Xxxxx
00 Beef Bend Court
60 0000 Xxxxxxxxx Xxxxxx
80 Xxxxx Island Center
