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X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
Depositor
MIDLAND LOAN SERVICES, INC.,
Servicer
MIDLAND LOAN SERVICES, INC.,
Special Servicer
XXXXX FARGO BANK MINNESOTA, N.A.,
Trustee
and
LASALLE BANK NATIONAL ASSOCIATION,
Paying Agent
POOLING AND SERVICING AGREEMENT
Dated as of
December 1, 2001
$1,070,655,188
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2001-C1
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Certain Calculations.........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by Trustee........................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and Warranties........
Section 2.04 Execution of Certificates; Creation of Loan REMIC Regular
Interests...................................................
Section 2.05 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests........................................
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 Newport Collection Account,
the Loan REMIC, the Lower-Tier and Upper-Tier
Distribution Accounts, the Gain-on-Sale Reserve Account
and the Excess Interest Distribution Account................
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Newport Collection Account and the Distribution Accounts....
Section 3.06 Investment of Funds in the Certificate Account and the
REO Account.................................................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements....
Section 3.09 Realization Upon Defaulted Mortgage Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation.......................................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 Annual Statement as to Compliance............................
Section 3.14 Reports by Independent Public Accountants....................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties..........
Section 3.19 Additional Obligations of Servicer and Special Servicer......
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Recordkeeping; Asset Status Report................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 [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 Servicers...........
Section 3.29 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of
Directing Certificateholder.................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s..............................................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Collateral Support Deficit.....................
Section 4.05 Appraisal Reductions.........................................
Section 4.06 Certificate Deferred Interest................................
Section 4.07 Grantor Trust Reporting......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
Section 5.06 Appointment of Paying Agent..................................
Section 5.07 Beneficial 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, the Paying Agent and Trustee in
Respect of the Servicer and the Special Servicer............
Section 6.06 Rating Agency Fees...........................................
Section 6.07 The Directing Certificateholder..............................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination.................................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Trustee as Maker of Advances.................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee and the Paying Agent.......................
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent.......................................................
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans...............
Section 8.04 Trustee or Paying Agent May Own Certificates.................
Section 8.05 Fees and Expenses of Trustee and the Paying Agent;
Indemnification of Trustee..................................
Section 8.06 Eligibility Requirements for Trustee and the Paying Agent....
Section 8.07 Resignation and Removal of the Trustee and Paying Agent......
Section 8.08 Successor Trustee or Paying Agent............................
Section 8.09 Merger or Consolidation of Trustee...........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Access to Certain Information................................
Section 8.13 Representations and Warranties of the Trustee................
Section 8.14 Representations and Warranties of the Paying Agent...........
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.........................................
Section 10.02 Depositor, Servicer and Special Servicer to Cooperate
with Paying Agent...........................................
Section 10.03 Use of Agents................................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................
Section 11.02 Recordation of Agreement; Counterparts.......................
Section 11.03 Limitation on Rights of Certificateholders...................
Section 11.04 Governing Law................................................
Section 11.05 Notices......................................................
Section 11.06 Severability of Provisions...................................
Section 11.07 Grant of a Security Interest.................................
Section 11.08 Successors and Assigns; Beneficiaries........................
Section 11.09 Article and Section Headings.................................
Section 11.10 Notices to the Rating Agencies...............................
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class X-1 Certificate
Exhibit A-5 Form of Class X-2 Certificate
Exhibit A-6 Form of Class B Certificate
Exhibit A-7 Form of Class C Certificate
Exhibit A-8 Form of Class D Certificate
Exhibit A-9 Form of Class E Certificate
Exhibit A-10 Form of Class F Certificate
Exhibit A-11 Form of Class G Certificate
Exhibit A-12 Form of Class H Certificate
Exhibit A-13 Form of Class J Certificate
Exhibit A-14 Form of Class K Certificate
Exhibit A-15 Form of Class L Certificate
Exhibit A-16 Form of Class M Certificate
Exhibit A-17 Form of Class N Certificate
Exhibit A-18 Form of Class NR Certificate
Exhibit A-19 Form of Class NC-1 Certificate
Exhibit A-20 Form of Class NC-2 Certificate
Exhibit A-21 Form of Class R Certificate
Exhibit A-22 Form of Class LR Certificate
Exhibit A-23 Form of Class S Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I-1 Form of Regulation S Transfer Certificate during Restricted
Period
Exhibit I-2 Form of Regulation S Transfer Certificate after Restricted
Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate during
Restricted Period
Exhibit L Form of S&P Defeasance Certificate
Exhibit M Form of CMSA Investor Reporting Package
Exhibit M-1 Form of CMSA Bond Level File
Exhibit M-2 Form of CMSA Collateral Summary File
Exhibit M-3 Form of CMSA Financial File
Exhibit M-4 Form of CMSA Loan Periodic Update File
Exhibit M-5 Form of CMSA Loan Setup File
Exhibit M-6 Form of CMSA Property File
Exhibit M-7 Form of Comparative Financial Status Report
Exhibit M-8 Form of Delinquent Loan Status Report
Exhibit M-9 Form of Historical Liquidation Report
Exhibit M-10 Form of Historical Loan Modification Report
Exhibit M-11 Form of NOI Adjustment Worksheet
Exhibit M-12 Form of Operating Statement Analysis Report
Exhibit M-13 Form of REO Status Report
Exhibit M-14 Form of Servicer Watch List
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
SCHEDULES
Schedule 1 [RESERVED]
Schedule 2 Mortgage Loans Containing Additional Debt
Schedule 3 Mortgage Loans which initially represent over 2% of the
Initial Pool Balance
Schedule 4 Mortgage Loans which Initially Pay Interest Only
Schedule 5 Mortgage Loans which are Not Defeasance Loans
This Pooling and Servicing Agreement (the "Agreement") is dated and
effective as of December 1, 2001, among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc., as Servicer,
Midland Loan Services, Inc., as Special Servicer, Xxxxx Fargo Bank Minnesota,
N.A., as Trustee, and LaSalle Bank National Association, as Paying Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans (the "Mortgage
Loans"). As provided herein, the Paying Agent shall elect or shall cause 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
three separate real estate mortgage investment conduits (the "Loan REMIC",
"Upper-Tier REMIC" and "Lower-Tier REMIC" as described herein).
LOAN REMIC
An election will be made to treat the segregated pool of assets
consisting of the Newport Mortgage Loan and certain other related assets subject
to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as the "Loan REMIC". The Loan REMIC
Residual Interest will represent the sole class of "residual interests" in the
Loan REMIC for purposes of the REMIC Provisions under federal income tax law,
and will be represented by the Class LR Certificates. The Loan REMIC Senior
Regular Interest, the Class KNC-1 Uncertificated Interest and the Class KNC-2
Uncertificated Interest will not be certificated and will be held by the
Lower-Tier REMIC.
The following table sets forth the Original Loan REMIC Principal
Amounts and per annum rates of interest for the Loan REMIC Regular Interests:
Class Original Loan REMIC
Designation Interest Rate Principal Amount
--------------------- ------------- -------------------
Loan REMIC Senior (1) $120,635,000
Regular Interest
Class KNC-1 (1) $32,658,000
Class KNC-2 (1) $6,707,000
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(1) The interest rate for each Class of Loan REMIC Regular Interests shall be
the Newport Mortgage Loan Remittance Rate.
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 such grantor trust shall issue the Class S
Certificates.
The parties further intend that the Class S Certificates represent
pro rata undivided beneficial interests in the portion of the Trust Fund
consisting of Excess Interest collected on the Mortgage Loan and in the Excess
Interest Distribution Account.
UPPER-TIER REMIC
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
for each Class of Certificates comprising the interests in the Upper-Tier REMIC
created hereunder:
Related Initial Pass-Through Original Original Rating
Certificate Rate (per annum) Certificate Balance S&P/Fitch(1)
--------------- -------------------- ------------------- ---------------
Class A-1 4.0640% $51,000,000 AAA/AAA
Class A-2 5.4640% $156,200,000 AAA/AAA
Class A-3 5.8570% $603,652,000 AAA/AAA
Class B 6.1080% $47,697,000 AA/AA
Class C 6.2260% $21,915,000 AA-/AA-
Class D 6.4050% (2) $21,915,000 A/A
Class E 6.4260% (3) $12,891,000 A-/A-
Class F 6.8480% (3) $25,782,000 BBB/BBB
Class G 7.1950% (4) $12,891,000 BBB-/BBB-
Class H 5.6260% (2) $21,915,000 BB+/BB+
Class J 5.6260% (2) $9,024,000 BB/BB
Class K 5.6260% (2) $6,446,000 BB-/BB-
Class L 5.6260% (2) $10,313,000 B+/B+
Class M 5.6260% (2) $5,156,000 B/B
Class N 5.6260% (2) $5,156,000 B-/B-
Class NR 5.6260% (2) $19,337,188 */*
Class NC-1 6.4729% (5) $32,658,000 A/A
Class NC-2 6.4729% (5) $6,707,000 A-/A-
Class X-1 (6) (7) AAA/AAA
Class X-2 (6) (7) AAA/AAA
Class R None None (8) */*
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(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) The Pass-Through Rate for any Distribution Date for each of the Class D,
Class H, Class J, Class K, Class L, Class M, Class N and Class NR
Certificates will be the lesser of (i) 6.4050%, 5.6260%, 5.6260%, 5.6260%,
5.6260%, 5.6260%, 5.6260%, and 5.6260%, per annum, respectively, and (ii)
the Weighted Average Net Mortgage Rate for such Distribution Date. The
Pass-Through Rates for the Class D, Class H, Class J, Class K, Class L,
Class M, Class N and Class NR Certificates for the first Distribution Date
are approximately 6.4050%, 5.6260%, 5.6260%, 5.6260%, 5.6260%, 5.6260%,
5.6260%, and 5.6260%, per annum, respectively.
(3) The Pass-Through Rate for any Distribution Date after the first
Distribution Date for the Class E and Class F Certificates will be the
Weighted Average Net Mortgage Rate for such Distribution Date less 0.769%
and 0.347%, respectively. The Pass-Through Rate of each of the Class E and
Class F Certificates for the first Distribution Date is approximately
6.4260% and 6.8480%, respectively.
(4) The Pass-Through Rate for any Distribution Date after the first
Distribution Date for the Class G Certificates will be the Weighted
Average Net Mortgage Rate for such Distribution Date. The Pass-Through
Rate of the Class G Certificates for the first Distribution Date is
approximately 7.1950%.
(5) The Pass-Through Rate for any Distribution Date after the first
Distribution Date for the Class NC-1 and Class NC-2 Certificates will be
the Newport Mortgage Loan Remittance Rate for such Distribution Date. The
Pass-Through Rate of the Class NC-1 and Class NC-2 Certificates for the
first Distribution Date is approximately 6.4729%.
(6) The Pass-Through Rates for each of the Class X-1 and Class X-2
Certificates will be calculated in accordance with the related definitions
of "Class X-1 Pass-Through Rate" and "Class X-2 Pass-Through Rate", as
applicable.
(7) The Class X-1 and Class X-2 Certificates will not have a Certificate
Balance; rather, each such Class of Certificates will accrue interest as
provided herein on the related Class X-1 Notional Amount and Class X-2
Notional Amount, as applicable. The original Class X-1 Notional Amount is
$1,070,655,188 and the original Class X-2 Notional Amount is $577,418,000.
(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.
The Class A-1, Class A-2, Class A-3, 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, Class NC-1, Class NC-2, Class X-1 and Class X-2 Certificates will
constitute "regular interests" in the Upper-Tier REMIC created hereunder. The
sole Class of "residual interests" in the Upper-Tier REMIC created hereunder
will be represented by the Class R Certificates.
LOWER-TIER REMIC
The Class XX-0, Xxxxx XX-0, Class LA-3-1, Class LA3-2, Class LB,
Class LC, Class LD, Class LE, Class LF-1, Class LF-2, Class LG, Class LH, Class
LJ, Class LK, Class LL, Class LM, Class LN, Class LNR, Class LNC-1 and Class
LNC-2 Uncertificated Interests (the "Uncertificated Lower-Tier Interests") will
constitute "regular interests" in the Lower-Tier REMIC created hereunder. The
sole Class of "residual interests" in the Lower-Tier REMIC created hereunder
will be represented 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) $51,000,000
Class LA-2 (1) $156,200,000
Class LA-3-1 (1) $155,652,000
Class LA-3-2 (1) $448,000,000
Class LB (1) $47,697,000
Class LC (1) $21,915,000
Class LD (1) $21,915,000
Class LE (1) $12,891,000
Class LF-1 (1) $782,000
Class LF-2 (1) $25,000,000
Class LG (1) $12,891,000
Class LH (1) $21,915,000
Class LJ (1) $9,024,000
Class LK (1) $6,446,000
Class LL (1) $10,313,000
Class LM (1) $5,156,000
Class LN (1) $5,156,000
Class LNR (1) $19,337,188
Class LNC-1 (2) $32,658,000
Class LNC-2 (2) $6,707,000
Class LR None(3) None(3)
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(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Newport Mortgage Loan Remittance Rate.
(3) 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
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).
As of 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 $1,070,655,188.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer, the Trustee and the Paying Agent
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following capitalized terms, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Certificates (other than the Class S Certificates and 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 such Class
outstanding immediately prior to such Distribution Date (provided, that for
interest accrual purposes any distributions in reduction of Certificate Balance
(or Notional Amount) or reductions in Certificate Balance (or Notional Amount)
as a result of allocations of Collateral Support Deficit on the Distribution
Date occurring in an Interest Accrual Period shall be deemed to have been made
on the first day of such Interest Accrual Period). Accrued certificate Interest
shall be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
"Accrued Newport Senior Component Interest": With respect to the
Newport Senior Component for any Distribution Date, one month's interest at the
Newport Mortgage Loan Remittance Rate for such Distribution Date, accrued for
the related Interest Accrual Period on the Newport Senior Balance outstanding
immediately prior to such Distribution Date. Accrued Newport Senior Component
Interest shall be calculated on a 30/360 Basis and, for any Distribution Date,
shall be deemed to accrue during the calendar month preceding the month in which
such Distribution Date occurs.
"Accrued Newport Subordinate Component Interest": With respect to
each Loan REMIC Subordinate Regular Interest for any Distribution Date, one
month's interest at the Newport Mortgage Loan Remittance Rate for such
Distribution Date, accrued for the related Interest Accrual Period on the
Newport Subordinate Balance outstanding immediately prior to such Distribution
Date. Accrued Newport Subordinate Component Interest shall be calculated on a
30/360 Basis and, for any Distribution Date, shall be deemed to accrue during
the calendar month preceding the month in which such Distribution Date occurs.
"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 2 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement).
"Administrative Cost Rate": 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.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York; and (b) such other state or local tax laws whose applicability shall have
been brought to the attention of the Trustee and the Paying Agent by either (i)
an opinion of counsel delivered to it, or (ii) written notice from the
appropriate taxing authority as to the applicability of such state or local tax
laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
calculated by the Special Servicer on the first Determination Date following the
date the Special Servicer receives or performs such Appraisal equal to the
excess, if any, of (a) the Stated Principal Balance of such Mortgage Loan
(including, if such Mortgage Loan is the Newport Mortgage Loan, the Newport
Subordinate Component) 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 (the costs of which shall be paid by the Servicer as an Advance)
with respect to any Mortgage Loan (together with any other Mortgage Loan
cross-collateralized with such Mortgage Loan) with an outstanding principal
balance equal to or in excess of $2,000,000 or (2) by an internal valuation
performed by the Special Servicer with respect to any Mortgage Loan (together
with any other Mortgage Loan cross-collateralized with such Mortgage Loan) with
an outstanding principal balance less than $2,000,000 and (B) all escrows,
letters of credit and reserves (other than tax and insurance reserves) in
respect of such Mortgage Loan as of the date of calculation over (ii) the sum
of, as of the Due Date occurring in the month of the date of determination, (A)
to the extent not previously advanced by the Servicer or Trustee, all unpaid
interest on such Mortgage Loan at a per annum rate equal to its Mortgage Rate,
(B) all unreimbursed Advances 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 and all other amounts due
and unpaid with respect to such Mortgage Loan (which taxes, premiums, ground
rents and other amounts have not been subject to an Advance by the Servicer or
the Trustee, as applicable); provided, however, without limiting the Special
Servicer's obligation to order and obtain such Appraisal, if the Special
Servicer has not obtained the Appraisal or valuation, as applicable, referred to
above within 60 days of the Appraisal Reduction Event (or with respect to the
reduction event set forth in Clause (ii) of the definition of Appraisal
Reduction Event, within such 120 days set forth therein), the amount of the
Appraisal Reduction shall be deemed to be an amount equal to 25% of the current
Stated Principal Balance of the related Mortgage Loan (including, if such
Mortgage Loan is the Newport Mortgage Loan, the Newport Subordinate Component)
until such time as such appraisal or valuation referred to above is received and
the Appraisal Reduction is calculated. The Special Servicer will be required to
order an Appraisal or conduct a valuation promptly upon the occurrence of an
Appraisal Reduction Event. On the first Determination Date occurring on or after
the delivery of the MAI Appraisal, the Special Servicer will be required to
calculate and report to the Servicer and the Servicer will be required to report
to the Paying Agent, the Appraisal Reduction to take into account the Appraisal.
With respect to each Mortgage Loan as to which an Appraisal
Reduction has occurred (unless such Mortgage Loan has remained current for
twelve consecutive Monthly Payments, and with respect to which no other
Appraisal Reduction Event has occurred thereto during the preceding twelve
months (for such purposes taking into account any amendment or modification of
such Mortgage Loan)), the Special Servicer shall, within 30 days of each annual
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. Based upon such Appraisal, the Special Servicer
shall redetermine and report to the Paying Agent and the Trustee the amount of
the Appraisal Reduction with respect to such Mortgage Loan and such redetermined
Appraisal Reduction shall replace the prior Appraisal Reduction with respect to
such Mortgage Loan. Notwithstanding the foregoing, the Special Servicer will not
be required to obtain an Appraisal with respect to a Mortgage Loan which is the
subject of an Appraisal Reduction Event to the extent the Special Servicer has
obtained an Appraisal or valuation, as applicable, with respect to the related
Mortgaged Property (including, without limitation, pursuant to Section 3.18(a))
within the 12-month period immediately prior to the occurrence of such Appraisal
Reduction Event. Instead, the Special Servicer may use such prior Appraisal or
valuation, as applicable, in calculating any Appraisal Reduction with respect to
such Mortgage Loan; provided the Special Servicer is not aware of any material
change to the related Mortgaged Property that has occurred that would affect the
validity of such appraisal or valuation, as applicable.
Any Mortgage Loan previously subject to an Appraisal Reduction which
becomes current and remains current for twelve consecutive Monthly Payments (for
such purposes taking into account any amendment or modification of such Mortgage
Loan), and with respect to which no other Appraisal Reduction Event has occurred
and is continuing, will no longer be subject to an Appraisal Reduction.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan or the related REO Property will
be reduced to zero as of the date such Mortgage Loan is paid in full,
liquidated, repurchased or otherwise removed from the Trust Fund.
"Appraisal Reduction Amount": With respect to any Distribution Date,
(i) with respect to the Certificates, an amount equal to the product of (a) the
applicable per annum Pass-Through Rate on the Class of Certificates to which the
Appraisal Reduction is allocated (or each such Pass-Through Rate if such
Appraisal Reduction is allocated to more than one such Class), and (b) the sum
of all Appraisal Reductions with respect to such Distribution Date (or, if such
Appraisal Reduction is allocated to more than one Class of Certificates, the
portion thereof allocated to each such Class) or (ii) with respect to each
Mortgage Loan for such Distribution Date, an amount equal to the product of (a)
the applicable per annum Pass-Through Rate on the Class of Certificates to which
the Appraisal Reduction is allocated (or the weighted average of such
Pass-Through Rates if such Appraisal Reduction is allocated to more than one
such Class (based upon the portion of the Appraisal Reduction allocated to each
such Class)), and (b) the Appraisal Reduction with respect to such Mortgage Loan
with respect to such Distribution Date.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) the third anniversary of the date on which the first extension
of the Maturity Date of such Mortgage Loan becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer pursuant to the terms
hereof, which extension does not decrease the amount of Monthly Payments on the
Mortgage Loan, (ii) 120 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Mortgage Loan, (iii)
the date on which a reduction in the amount of Monthly Payments on such Mortgage
Loan, or a change in any other material economic term of such Mortgage Loan
(other than an extension of the Maturity Date), becomes effective as a result of
a modification of such Mortgage Loan by the Special Servicer, (iv) the date on
which a receiver has been appointed, (v) 60 days after a Mortgagor declares
bankruptcy, (vi) 60 days after the date on which an involuntary petition of
bankruptcy is filed with respect to a Mortgagor, (vii) 90 days after an uncured
delinquency occurs in respect of a Balloon Payment with respect to a Mortgage
Loan unless the borrower has delivered to the Servicer on the related Maturity
Date a written refinancing commitment reasonably satisfactory in form and
substance to the Special Servicer and Directing Certificateholder (or with
respect to the Newport Mortgage Loan, the Newport Representative in consultation
with the Directing Certificateholder) which provides that such refinancing will
occur within 60 days thereafter and (viii) immediately after a Mortgage Loan
becomes an REO Loan; provided, however, that an Appraisal Reduction Event shall
not occur at any time when the aggregate Certificate Balances of all Classes of
Certificates (other than the Class A Certificates) has been reduced to zero. The
Special Servicer shall notify the Servicer 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 such Mortgage Loan made by an Independent MAI appraiser selected by the
Servicer or Special Servicer, as applicable.
"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 modification of such Mortgage Loan, and
(b) interest on the Stated Principal Balance of such Mortgage Loan at the
applicable Mortgage Rate (net of interest at the Servicing Fee Rate).
"Authenticating Agent": Any agent of the Trustee appointed to act as
Authenticating Agent pursuant to Section 5.01 (or, in the absence of any such
appointment, the Paying Agent).
"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, the Loan REMIC Distribution Account
and the Lower-Tier Distribution Account (in each case,
exclusive of any Net Investment Earnings contained therein) as
of the close of business on the 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 Principal Prepayments (together with any related
payments of interest allocable to the period following
the Due Date for the related Mortgage Loan during the
related Due Period), Liquidation Proceeds or Insurance
and Condemnation Proceeds received after the end of the
related Due Period, other than Principal Prepayments
received with respect to Mortgage Loans sold to the
Depositor by PNC through the 5th day of the month in
which such Distribution Date occurs;
(iii) all amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through
(xvi), inclusive, and clause (xviii) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Loan REMIC Distribution Account pursuant to Clauses
(iii) - (viii), inclusive, of Section 3.05(b), or
Lower-Tier Distribution Account pursuant to clauses (iv)
- (ix), inclusive, of Section 3.05(c);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) all amounts deemed distributable pursuant to Section
4.01(j)(iv) through (ix);
(viii) all amounts deposited in the Certificate Account, the
Loan REMIC Distribution 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) if and to the extent not already included in clause (a)
hereof, the aggregate amount of any P&I Advances made by the
Servicer or the Trustee, as applicable, for such Distribution
Date pursuant to Section 4.03 or 7.05 (net of the related
Trustee Fee with respect to the Mortgage Loans for which such
P&I Advances are made); and
(d) for the Distribution Date occurring in each March, the
Withheld Amounts remitted to the Lower-Tier Distribution
Account or the Loan REMIC Distribution Account pursuant to
Section 3.26(b).
Notwithstanding the investment of funds held in the Certificate Account pursuant
to Section 3.06, for purposes of calculating the Available Distribution Amount,
the amounts so invested shall be deemed to remain on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to the Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E, Class F and Class G Certificates is a
fraction (a) whose numerator is the amount, if any, 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, if any, 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 or
equal to the lesser of (x) the Mortgage Rate on such Mortgage Loan and (y) the
Pass-Through Rate described in the preceding sentence, then the Base Interest
Fraction will equal zero. The Servicer shall provide to the Paying Agent the
discount rate referenced above for purposes of calculating the Base Interest
Fraction.
"Beneficial Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate, as reflected
on the books of the Depository or on the books of a Person maintaining an
account with such Depository (directly or as an indirect participant, in
accordance with the rules of such Depository), as the case may be.
"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, Columbia,
Maryland, Minneapolis, Minnesota, Pittsburgh, Pennsylvania or the city and state
in which the Corporate Trust Office of the Trustee or principal place of
business of the Servicer, the Special Servicer or the Paying Agent is located,
are authorized or obligated by law or executive order to remain closed.
"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 2001-C1, 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
"Midland Loan Services, Inc., as Servicer, in trust for the registered holders
of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2001-C1, Certificate Account." Any such
account or accounts shall be an Eligible Account.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates, the Class S 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 8
places, the numerator of which is the then related Certificate Balance, and the
denominator of which is the related Original Certificate Balance. The
Certificate Factor shall be rounded to the nearest 1/100,000,000.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Servicer, the
Special Servicer, the Depositor, Paying Agent or any Affiliate of any of them or
such Person 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 or Depositor, 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 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, if any (or the Servicer's rights, if
any), or any of their Affiliates as a member of the Controlling Class. The
Trustee and the Paying Agent shall each be entitled to request and rely upon a
certificate of the Servicer, the Special Servicer or the Depositor in
determining whether a Certificate is registered in the name of an Affiliate of
such Person. All references herein to "Holders" or "Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly exercise such
rights through the Depository and the Depository Participants, except as
otherwise specified herein; provided, however, that the parties hereto shall be
required to recognize as a "Holder" or "Certificateholder" only the Person in
whose name a Certificate is registered in the Certificate Register.
"Class": With respect to any Certificates, Uncertificated Lower-Tier
Interests, Loan REMIC Regular Interest or Component, all of the Certificates
bearing the same alphabetical (and, if applicable, numerical) Class designation
and each designated Uncertificated Lower-Tier Interest, Loan REMIC Regular
Interest or Component.
"Class A Certificate": Any Class A-1, Class A-2 or Class A-3
Certificates.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 4.0640%.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 5.4640%.
"Class A-3 Certificate": A Certificate designated as "Class A-3" on
the face thereof, in the form of Exhibit A-3 hereto.
"Class A-3 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 5.8570%.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-6 hereto.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 6.1080%.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-7 hereto.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 6.2260%.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-8 hereto.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage
Rate and (ii) 6.4050%.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-9 hereto.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate less 0.769%.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-10 hereto.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate less 0.347%.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-11 hereto.
"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-12 hereto.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) Weighted Average Net Mortgage Rate
and (ii) 5.6260%.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-13 hereto.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) Weighted Average Net Mortgage Rate
and (ii) 5.6260%.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-14 hereto.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) Weighted Average Net Mortgage Rate
and (ii) 5.6260%.
"Class KNC-1 Uncertificated Interest": A regular interest in the
Loan REMIC which is held as an asset of the Lower-Tier REMIC and having the
Original Loan REMIC Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class KNC-2 Uncertificated Interest": A regular interest in the
Loan REMIC which is held as an asset of the Lower-Tier REMIC and having the
Original Loan REMIC Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-15 hereto.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) Weighted Average Net Mortgage Rate
and (ii) 5.6260%.
"Class LA-1 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-2 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-3-1 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-3-2 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LE Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LF-1 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LF-2 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LG Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LH Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LJ Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LK Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LL Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LM Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LNC-1 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LNC-2 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LNR Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-22 hereto.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-16 hereto.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) Weighted Average Net Mortgage Rate
and (ii) 5.6260%.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-17 hereto.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) Weighted Average Net Mortgage Rate
and (ii) 5.6260%.
"Class NC Certificates": Any of the Class NC-1 and Class NC-2
Certificates.
"Class NC-1 Certificate": A Certificate designated as "Class NC-1"
on the face thereof, in the form of Exhibit A-19 hereto.
"Class NC-1 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Newport Mortgage Loan Remittance Rate.
"Class NC-2 Certificate": A Certificate designated as "Class NC-2"
on the face thereof, in the form of Exhibit A-20 hereto.
"Class NC-2 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Newport Mortgage Loan Remittance Rate.
"Class Notional Amount": The Class X-1 Notional Amount or the Class
X-2 Notional Amount, as the context requires.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-18 hereto.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) Weighted Average Net Mortgage Rate
and (ii) 5.6260%.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof, in the form of Exhibit A-21 hereto.
"Class S Certificate": A Certificate designated as "Class S" on the
face thereof, in the form of Exhibit A-23 hereto.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Regular Certificates or the Class NC Certificates, the excess, if
any, of (a) the sum of (i) the Distributable Certificate Interest in respect of
such Class for the immediately preceding Distribution Date and (ii) any
outstanding Class Unpaid Interest Shortfall payable to such Class on such
preceding Distribution Date over (b) the aggregate amount in respect of interest
actually distributed to such Class on such immediately preceding Distribution
Date. The Class Unpaid Interest Shortfall with respect to any Class of
Certificates as of the initial Distribution Date is zero. No interest shall
accrue on Class Unpaid Interest Shortfalls.
"Class X Certificates": The Class X-1 Certificates and the Class X-2
Certificates.
"Class X-1 Certificate": Any one of the Certificates with a "Class
X-1" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-1 Notional Amount": As of any date of determination, the
sum of the Component Notional Amounts of all of the Components as of such date.
"Class X-1 Pass-Through Rate": With respect to each Distribution
Date, the weighted average of the Class X-1 Strip Rates for the respective
Components for such Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding immediately prior to
such Distribution Date);
"Class X-1 Strip Rate": With respect to any Class of Components
(other than Components XA-3-2, XB, XC, XD, XE, XF-2, XNC-1 and XNC-2 for any
Distribution Date), a rate per annum equal to (i) the Weighted Average Net
Mortgage Rate for such Distribution Date, minus (ii) the Pass-Through Rate for
the Related Certificates and, in the case of any of Components XA-3-2, XB, XC,
XD, XE or XF-2 (i) for any Distribution Date occurring on or before the Class
X-2 Termination Date (x) the Weighted Average Net Mortgage Rate for such
Distribution Date minus (y) the sum of the Pass-Through Rate for the Related
Certificate and the Class X-2 Strip Rate for such Component for such
Distribution Date and (ii) for any Distribution Date occurring after the Class
X-2 Termination Date, a rate per annum equal to (x) the Weighted Average Net
Mortgage Rate for such Distribution Date, minus (y) the Pass-Through Rate for
the Related Certificates, provided that in no event shall any Class X-1 Strip
Rate be less than zero. With respect to the Class XNC-1 and Class XNC-2
Components, a rate per annum equal to (i) the Newport Mortgage Loan Remittance
Rate for such Distribution Date, minus (ii) the Pass-Through Rate for the
Related Certificates. For the avoidance of doubt, the Class X-1 Strip Rate for
the Class XG, Class XNC-1 and Class XNC-2 Component shall be 0.0%.
"Class X-2 Certificate": Any one of the Certificates with a "Class
X-2" designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-2 Components": Each of Component XA-3-2, Component XB,
Component XC, Component XD, Component XE and Component XF-2.
"Class X-2 Fixed Strip": With respect to each Class X-2 Component,
the rate set forth with respect to such Component below:
CLASS X-2 COMPONENT FIXED STRIP
Class XA-3-2 1.29%
Class XB 1.04%
Class XC 0.92%
Class XD 0.74%
Class XE 0.75%
Class XF-2 0.33%
"Class X-2 Notional Amount": As of any date of determination, the
sum of the Component Notional Amounts of the Class X-2 Components as of such
date.
"Class X-2 Pass-Through Rate": With respect to each Distribution
Date, the weighted average of the Class X-2 Strip Rates for the respective Class
X-2 Components for such Distribution Date (weighted on the basis of the
respective Component Notional Amounts of such Components outstanding immediately
prior to such Distribution Date);
"Class X-2 Strip Rate": With respect to the Class X-2 Components for
any Distribution Date, a rate per annum equal to (i) for any Distribution Date
occurring on or before the Class X-2 Termination Date, the lesser of (A) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus the sum of
(y) the Pass-Through Rate for the Related Certificates and (x) 0.01% (1 basis
point) (provided that in no event shall any Class X-2 Strip Rate be less than
zero) or (B) with respect to each Class X-2 Component, the Class X-2 Fixed Strip
and (ii) for any Distribution Date occurring after the Class X-2 Termination
Date, 0% per annum.
"Class X-2 Termination Date": The Distribution Date in December
2008.
"Closing Date": December 14, 2001.
"CMSA": the Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Paying Agent, the Servicer
and the Directing Certificateholder.
"CMSA Bond Level File": The monthly report in the "CMSA Bond Level
File" format substantially in the form of and containing the information called
for therein, a current form of which is attached hereto as Exhibit M-1, or such
other form for the presentation of such information as may be recommended 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 reasonably acceptable to the
Paying Agent and the Directing Certificateholder.
"CMSA Collateral Summary File": The monthly report in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, a current form of which is attached hereto as
Exhibit M-2, or such other form for the presentation of such information as may
be recommended 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, as
reasonably acceptable to the Paying Agent and the Directing Certificateholder.
"CMSA Financial File": The monthly report in the "CMSA Financial
File" format substantially in the form of and containing the information called
for therein for the Mortgage Loans, a current form of which is attached hereto
as Exhibit M-3, or such other form for the presentation of such information as
may be recommended 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, as reasonably
acceptable to the Servicer or the Special Servicer, as applicable, and the
Directing Certificateholder.
"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 six 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 and
(6) CMSA Financial File) and eight surveillance reports ((1) Servicer Watch
List, (2) Delinquent Loan Status Report, (3) REO Status Report, (4) Comparative
Financial Status Report, (5) Historical Loan Modification Report, (6) Historical
Liquidation Report, (7) Operating Statement Analysis Report and (8) NOI
Adjustment Worksheet). The CMSA IRP shall be substantially in the form of, and
containing the information called for in, the downloadable forms of the "CMSA
IRP" available as of the Closing Date on the CMSA website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended 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 reasonably
acceptable to the Servicer, the Special Servicer, the Paying Agent and the
Directing Certificateholder. For the purposes of the production of the
Comparative Financial Status Report by the Servicer or the Special Servicer of
any such report that is required to state information for any period prior to
the Cut-off Date, the Servicer or the Special Servicer, as the case may be, may
conclusively rely (without independent verification), absent manifest error, on
information provided to it by the Mortgage Loan Sellers or by the related
Mortgagor or (x) in the case of such a report produced by the Servicer, by the
Special Servicer (if other than the Servicer or an Affiliate thereof) and (y) in
the case of such a report produced by the Special Servicer, by the Servicer (if
other than the Special Servicer or an Affiliate thereof).
"CMSA Loan Periodic Update File": The monthly report in the "CMSA
Loan Periodic Update File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, a current form of
which is attached hereto as Exhibit M-4, or such other form for the presentation
of such information as may be recommended 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 reasonably acceptable to the Paying Agent, the Servicer and
the Directing Certificateholder.
"CMSA Loan Setup File": The report in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, a current form of which is attached hereto as
Exhibit M-5, or such other form for the presentation of such information as may
be recommended 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, as reasonably
acceptable to the Paying Agent, the Servicer and the Directing
Certificateholder.
"CMSA Property File": The monthly report in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, a current form of which is attached hereto as
Exhibit M-6, or such other form for the presentation of such information as may
be recommended 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, as reasonably
acceptable to the Servicer or the Special Servicer, as applicable, and the
Directing Certificateholder.
"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.
"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, a current
form of which is attached hereto as Exhibit M-7, or such other form for the
presentation of such information as may be recommended 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, as reasonably acceptable to the Servicer or
the Special Servicer, as applicable, and the Directing Certificateholder.
"Component": Each of Component XX-0, Xxxxxxxxx XX-0, Component
XA-3-1, Component XA-3-2, Component XB, Component XC, Component XD, Component
XE, Component XF-1, Component XF-2, Component XG, Component XH, Component XJ,
Component XK, Component XL, Component XM, Component XN, Component XNR, Component
XNC-1 and Component XNC-2.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower-Tier Principal Amount
of its Related Uncertificated Lower-Tier Interest.
"Component XA-1": One of twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1 Uncertificated Interest as of any
date of determination.
"Component XA-2": One of twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2 Uncertificated Interest as of any
date of determination.
"Component XA-3-1": One of the twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the current Lower-Tier
Principal Amount of the Class LA-3-1 Uncertificated Interest as of any date of
determination.
"Component XA-3-2": One of the twenty components of the Class X-1
Certificates and one of the six components of the Class X-2 Certificates having
a Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LA-3-2 Uncertificated Interest as of any date of determination.
"Component XB": One of twenty components of the Class X-1
Certificates and one of the six components of the Class X-2 Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LB Uncertificated Interest as of any date of determination.
"Component XC": One of twenty components of the Class X-1
Certificates and one of the six components of the Class X-2 Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LC Uncertificated Interest as of any date of determination.
"Component XD": One of twenty components of the Class X-1
Certificates and one of the six components of the Class X-2 Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LD Uncertificated Interest as of any date of determination.
"Component XE": One of twenty components of the Class X-1
Certificates and one of the six components of the Class X-2 Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LE Uncertificated Interest as of any date of determination.
"Component XF-1": One of twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LF-1 Uncertificated Interest as of any
date of determination.
"Component XF-2": One of twenty components of the Class X-1
Certificates and one of the six components of the Class X-2 Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LF-2 Uncertificated Interest as of any date of
determination.
"Component XG": One of twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LG Uncertificated Interest as of any
date of determination.
"Component XH": One of twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LH Uncertificated Interest as of any
date of determination.
"Component XJ": One of twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LJ Uncertificated Interest as of any
date of determination.
"Component XK": One of twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LK Uncertificated Interest as of any
date of determination.
"Component XL": One of twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LL Uncertificated Interest as of any
date of determination.
"Component XM": One of twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LM Uncertificated Interest as of any
date of determination.
"Component XN": One of twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LN Uncertificated Interest as of any
date of determination.
"Component XNC-1": One of twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNC-1 Uncertificated Interest as of any
date of determination.
"Component XNC-2": One of twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNC-2 Uncertificated Interest as of any
date of determination.
"Component XNR": One of twenty components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR Uncertificated Interest as of any
date of determination.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates then outstanding that has a then
aggregate Certificate Balance at least equal to 25% of the initial Certificate
Balance of such Class of Certificates. As of the Closing Date, the Controlling
Class will be the Class NR Certificates.
"Controlling Class 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 Certificateholder's Option Period": As defined in
Section 3.18 (a)(ii).
"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 corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Administrator, Ref. X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., Series 2001-C1, (telecopy number
(000) 000-0000).
"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), and (provided that no additional default is foreseeable in the
reasonable judgment of the Special Servicer) the Special Servicer has returned
servicing of such Mortgage Loan to the Servicer pursuant to Section 3.21(a).
"Credit File": All third party reports, environmental insurance
policies, required legal opinions and all other documents, other than documents
required to be part of the related Mortgage File, in the possession of the
Servicer and relating to the origination and servicing of any Mortgage Loan.
"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 any Mortgage Loan, the Due Date for
such Mortgage Loan in December 2001.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
after application of all payments of principal due on or before such date,
whether or not received.
"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 that has been delivered to the Servicer or Special Servicer,
as applicable, 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 4, which pay interest only for a specified period of time set forth in
the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the amortization schedule
indicated on Schedule 4).
"Default Interest": With respect to any Mortgage Loan which is in
default pursuant to the terms of the related Mortgage Loan Documents for any
related Due Period, all interest accrued in respect of such Mortgage Loan during
such Due Period provided for in the related Mortgage Note or Mortgage as a
result of the related 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 outstanding from time to time during such Due
Period.
"Defaulted Mortgage Loan": A Mortgage Loan that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days
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.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.03(b).
"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.
"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, a current
form of which is attached hereto as Exhibit M-8, or such other form for the
presentation of such information as may be recommended from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Delinquent Loan Status Report" available as of the Closing Date
on the CMSA website, as reasonably acceptable to the Servicer or the Special
Servicer, as applicable, and the Directing Certificateholder.
"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.
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18 (a)(i).
"Directing Certificateholder": The Controlling Class
Certificateholder 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.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers, the use of such REO Property in a trade or
business conducted by the Trust Fund or the performance of any construction work
on the REO Property (other than the completion of a building or improvement,
where more than 10% of the construction of such building or improvement was
completed before default became imminent), other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer on
behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance or makes decisions as to repairs or
capital expenditures with respect to such REO Property or takes other actions
consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Trustee based upon an Opinion
of Counsel that the holding of an Ownership Interest in a Residual Certificate
by such Person may cause the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
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 NC and 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). With
respect to any Class of Class NC Certificates, the Accrued Certificate Interest
in respect of such Class of Certificates for such Distribution Date, reduced (to
not less than zero) by (i) any allocations, if any, of the Net Aggregate
Prepayment Interest Shortfall related to the Newport Mortgage Loan for such
Distribution Date allocated to such Class of Class NC Certificates as set forth
below, and (ii) any Certificate Deferred Interest for such Distribution Date
allocated to such Class pursuant to Section 4.06(a). The Net Aggregate
Prepayment Interest Shortfall for the Newport Mortgage Loan, if any, for each
Distribution Date shall be allocated, up to an amount equal to the lesser of any
such Net Aggregate Prepayment Interest Shortfall and any Accrued Certificate
Interest in respect of the particular Class of Class NC Certificates for such
Distribution Date, first, to the Class NC-2 Certificates, and then to the Class
NC-1 Certificates, and, thereafter, if and to the extent that any portion of
such Net Aggregate Prepayment Interest Shortfall remains unallocated, among the
Certificates as described in the second preceding sentence above.
"Distributable Newport Senior Component Interest": For any
Distribution Date, the Accrued Newport Senior Component Interest for such
Distribution Date, reduced by (i) the amount described in the last sentence of
the definition of Distributable Certificate Interest for such Distribution Date
relating to the Newport Mortgage Loan, and (ii) the amount of any Certificate
Deferred Interest allocated to any Class of Regular Certificates with respect of
the Newport Mortgage Loan in accordance with Section 4.06.
"Distributable Newport Subordinate Component Interest": For any
Distribution Date, the Accrued Newport Subordinate Component Interest for such
Distribution Date, reduced by (i) the amount of any Prepayment Interest
Shortfall with respect to the Newport Loan for such Distribution Date in excess
of the amount deposited by the Servicer in the Certificate Account for such
Distribution Date pursuant to Section 3.19 with respect to the Newport Mortgage
Loan, and (ii) the amount of any Certificate Deferred Interest allocated to any
Class of Class NC Certificates in accordance with Section 4.06.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account and the Loan REMIC Distribution
Account, all of which may be sub-accounts of a single account.
"Distribution Date": The 12th day of any month, or if such 12th day
is not a Business Day, the Business Day immediately succeeding such 12th day,
commencing in January 2002.
"Due Date": With respect to (i) any Mortgage 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 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
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, the period commencing on the day immediately succeeding the Due Date
occurring in the month preceding the month in which such Distribution Date
occurs and ending on and including the Due Date 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 payments received with respect to the Mortgage Loans 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 "AA" by S&P and "A" by Fitch provided that the short
term obligations of which are rated "A-1" by S&P and "F-1" by Fitch if the
deposits are to be held in such account 30 days or less or 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 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 a
combined capital and surplus of at least $50,000,000 and 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": Any of (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, (ii) an Institutional Accredited Investor,
or (iii) a non-U.S. Person acquiring such interest in an offshore transaction
pursuant to Regulation S in accordance with all applicable procedures herein.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of the American Society of Testing Materials Standard
E1527-00 or any successor thereto published by the American Society of Testing
Materials.
"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 H, Class J, Class K, Class
L, Class M, Class N 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.
"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 Loan REMIC, 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 by the Paying
Agent pursuant to Section 3.04(c), which shall be entitled "LaSalle Bank
National Association, as Paying Agent, in trust for the registered Holders of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2001-C1, Excess Interest Distribution
Account," and which must be an Eligible Account. The Excess Interest
Distribution Account shall not be an asset of the Loan REMIC, 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.
"Exemption": Prohibited Transaction Exemption ("PTE") 90-33 (issued
to a corporate predecessor of X.X. Xxxxxx Securities Inc.), PTE 98-08 (issued to
PNC Capital Markets, Inc.) and Final Authorization Number 97-03E (issued to
Deutsche Banc Alex. Xxxxx Inc.), each as amended by PTE 97-34 and PTE-2000-58.
"Xxxxxx Mae": Federal National Mortgage Association or any successor
thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"Final Recovery Determination": A reasonable determination by the
Special Servicer with respect to any Defaulted Mortgage 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, by the Controlling Class Option
Holder or the Special Servicer pursuant to Section 3.18(a), or by the Servicer,
Special Servicer, the Holders of the Controlling Class, or the Holders of the
Class LR Certificates pursuant to Section 9.01) 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,
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.
"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 Paying Agent, 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, the
excess of (i) Liquidation Proceeds of the Mortgage Loan or related REO Property
net of any related Liquidation Expenses, over (ii) the Purchase Price for such
Mortgage Loan on the date on which such Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A segregated custodial account or
accounts created and maintained by the Paying Agent pursuant to Section 3.04(d)
on behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "LaSalle Bank National Association, as Paying Agent, in trust for the
registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1, Gain-on-Sale
Reserve Account." Any such account shall be an Eligible Account.
"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.
"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.
"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.
"Historical Liquidation Report": The monthly report in the
"Historical Liquidation Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, a current
form of which is attached hereto as Exhibit M-9, or such other form for the
presentation of such information as may be recommended 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, as reasonably acceptable to the Servicer or the Special
Servicer, as applicable, and the Directing Certificateholder.
"Historical Loan Modification Report": The monthly report in the
"Historical Loan Modification Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, a current
form of which is attached hereto as Exhibit M-10, or such other form for the
presentation of such information as may be recommended from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification Report" available as of the
Closing Date on the CMSA website, as reasonably acceptable to the Servicer or
the Special Servicer, as applicable, and the Directing Certificateholder.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Trustee, the Depositor, the
Servicer, the Special Servicer, the Paying Agent, the Directing
Certificateholder and any and all Affiliates thereof, (ii) does not have any
material direct financial interest in or any material indirect financial
interest in any of the Trustee, the Depositor, the Servicer, the Special
Servicer, the Paying Agent, the Directing Certificateholder or any Affiliate
thereof and (iii) is not connected with the Trustee, the Depositor, the
Servicer, the Special Servicer, the Paying Agent, the Directing
Certificateholder or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Trustee, the Depositor, the Servicer, the Special Servicer, the Paying Agent or
any Affiliate thereof merely because such Person is the beneficial owner of 1%
or less of any Class of securities issued by the Trustee, the Depositor, the
Servicer, the Special Servicer, the Paying Agent, the Directing
Certificateholder or any Affiliate thereof, as the case may be.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the 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
Paying Agent, the Servicer or the Trust, delivered to the Trustee, the Paying
Agent 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 to
that effect) or (ii) any other Person (including the Servicer and the Special
Servicer) upon receipt by the Trustee, the Paying Agent and the Servicer of an
Opinion of Counsel, which shall be at no expense to the Trustee, the Paying
Agent, the Servicer or the Trust Fund, to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
cause any income realized in respect of such REO Property to fail to qualify as
Rents from Real Property.
"Initial Resolution Period": As defined in Section 2.03(b).
"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.
"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.
"Interest Accrual Period": With respect to any Class of Regular
Certificates, Class NC Certificates, Uncertificated Lower-Tier Interests, or
Loan REMIC Regular 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 or Class NC 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 or Class
NC Certificates for such Distribution Date.
"Interest Reserve Account": The trust account created and maintained
by the Paying Agent pursuant to Section 3.25 in the name of "LaSalle Bank
National Association, as Paying Agent, in trust for the registered holders of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2001-C1, Interest Reserve Account", into which
the amounts set forth in Section 3.25 shall be deposited directly and which must
be an Eligible Account.
"Interest Reserve Loans": The Actual/360 Mortgage Loans.
"Interested Person": The Depositor, the Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any Holder
of a Certificate 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, all amounts
received thereon during any Due Period (including any related grace period),
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 (without regard to any
acceleration of amounts due thereunder by reason of default) on a Due Date in a
previous Due Period and not previously recovered. With respect to any REO Loan,
all amounts received in connection with the related REO Property during any Due
Period (including any grace period), 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 (without regard to any acceleration of
amounts due under the predecessor Mortgage Loan by reason of default) on a Due
Date in a previous Due Period 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 any Person pursuant to Section 3.18(a) or 3.18(b) or 3.18(d); or
(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. With respect to any REO Property (and the related REO
Loan), any of the following events: (i) a Final Recovery Determination is made
with respect to such REO Property or (ii) such REO Property is purchased by the
Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with the liquidation of any Specially Serviced Mortgage Loan or REO Property
pursuant to Section 3.18 (including, without limitation, legal fees and
expenses, committee or referee fees and, if applicable, brokerage commissions
and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan as to which the Special
Servicer receives a full or discounted payoff (or an unscheduled partial payment
to the extent such prepayment is required by the Special Servicer as a condition
to a modification of the terms of the related Mortgage Loan) with respect
thereto from the related Mortgagor or any Liquidation Proceeds with respect
thereto (in any case, other than amounts for which a Workout Fee has been paid,
or will be payable), equal to the product of the Liquidation Fee Rate and the
proceeds of such full or discounted payoff or the Liquidation Proceeds (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
clauses (iii)(A), (iv) or (v) of the definition of Liquidation Proceeds.
"Liquidation Fee Rate": A rate equal to 1.00 %.
"Liquidation Proceeds": Cash amounts (other than Insurance and
Condemnation Proceeds) received by or paid to the Servicer or the Special
Servicer in connection with: (i) the liquidation of a Mortgaged Property or
other collateral constituting security for a defaulted Mortgage Loan, through
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 any Person
pursuant to Section 3.18(a) or 3.18(d) or (B) any other sale thereof pursuant to
Section 3.18(b); (iv) the repurchase of a Mortgage Loan by the applicable
Mortgage Loan Seller pursuant to Section 3 of the related Mortgage Loan Purchase
Agreement; or (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.
"Loan REMIC": The segregated pool of assets subject hereto
constituting a portion of the primary trust created hereby and to be
administered hereunder with respect to which a separate REMIC election is to be
made and consisting of: (i) the Newport Mortgage Loan as from time to time
subject to this Agreement and all payments under and proceeds of such Mortgage
Loan received after the Closing Date, together with all documents included in
the related Mortgage Files and any related Escrow Payments and reserves; (ii)
any REO Property acquired in respect of the Newport Mortgage Loan; (iii)
Withheld Amounts in the Interest Reserve Account with respect to the Newport
Mortgage Loan; (iv) the Newport Collection Account and the Loan REMIC
Distribution Account, (v) any amount held in the Gain-on-Sale Reserve Account
with respect to the Newport Mortgage Loan, (vi) the rights of the Depositor
under Section 2, 3, 9, 10, 11, 12, 13, 14, 16, 17 and 18 of the Mortgage Loan
Purchase Agreement with respect to the Newport Mortgage Loan; and (vii) the
rights of the mortgagee under all Insurance Policies with respect to the Newport
Mortgage Loan.
"Loan REMIC Distribution Account": The segregated account or
accounts created and maintained by the Paying Agent pursuant to Section 3.04(b)
in trust for the Certificateholders, which shall be entitled "LaSalle Bank
National Association, as Paying Agent, in trust for the registered Holders of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2001-C1, Loan REMIC Distribution Account". Any
such account or accounts shall be an Eligible Account.
"Loan REMIC Principal Amount": The principal amount of each of the
Loan REMIC Senior Regular Interest and the Loan REMIC Subordinate Regular
Interests outstanding as of any date of determination. As of the Closing Date,
the Loan REMIC Principal Amount for the Loan REMIC Regular Interests is as set
forth in the Preliminary Statement.
"Loan REMIC Regular Interest": Any of the Loan REMIC Senior Regular
Interest or the Loan REMIC Subordinate Regular Interests.
"Loan REMIC Residual Interest": The sole class of "residual
interests" in the Loan REMIC for purposes of the REMIC Provisions and evidenced
by the Class LR Certificates.
"Loan REMIC Senior Regular Interest": The separate non-certificated
beneficial ownership interest in the Loan REMIC issued hereunder and designated
as a "regular interest" in the Loan REMIC, as described in the Preliminary
Statement hereto.
"Loan REMIC Subordinate Regular Interest": Each of the Class KNC-1
Uncertificated Interest and Class KNC-2 Uncertificated Interest.
"Lower-Tier Distribution Account": The segregated account or
accounts created and maintained by the Paying Agent pursuant to Section 3.04(b)
in trust for the Certificateholders, which shall be entitled "LaSalle Bank
National Association, as Paying Agent, in trust for the registered Holders of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 0000-X0, Xxxxx-Xxxx Distribution Account". Any
such account or accounts shall be an Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"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 REMIC": One of three separate REMICs comprising the
Trust Fund, the assets of which consist of the Majority Mortgage Loans
(exclusive of Excess Interest), any REO Property with respect thereto, the Loan
REMIC Regular Interests, such amounts as shall from time to time be held in the
Certificate Account, the REO Account, if any, the Interest Reserve Account, the
Gain-on-Sale Reserve Account and the Lower-Tier Distribution Account with
respect thereto, and all other property included in the Trust Fund that is not
in the Loan REMIC, the Upper-Tier REMIC or the Grantor Trust.
"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.
"Majority Mortgage Loans": All Mortgage Loans except the Newport
Mortgage Loan.
"Maturity Date": With respect to any Mortgage 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 by reason
of default thereunder or (ii) any grace period permitted by the related Mortgage
Note.
"Midland": Midland Loan Services, Inc., and its successors and
assigns.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and/or interest on such Mortgage Loan, including
any Balloon Payment, which is payable 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 by reason of default thereunder and without
respect to any Excess Interest.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee or leasehold interest in the related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to any Mortgage Loan, but subject to
Section 2.01, collectively the following documents:
(i) the original Mortgage Note, bearing, or accompanied by, all
prior and intervening endorsements or assignments 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,
either in blank or to the order of the Trustee in the following form: "Pay
to the order of Xxxxx Fargo Bank Minnesota, N.A., as trustee for the
registered holders of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2001-C1,
without recourse, representation or warranty, express or implied";
provided that the requirements of this clause (i) will be satisfied by
delivery of a signed lost note affidavit properly assigned or endorsed to
the Trustee as described above, which appears to be regular on its face;
(ii) the original Mortgage (or a certified or other copy thereof
from the applicable recording office) and originals (or certified or other
copies from the applicable recording office) of any intervening
assignments thereof showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent mortgagee of record, in
each case with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in complete and
recordable form, executed by the most recent assignee of record thereof
prior to the Trustee, or if none, by the originator to "Xxxxx Fargo Bank
Minnesota, N.A., as trustee for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2001-C1";
(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), in recordable form,
executed by the applicable assignee of record to "Xxxxx Fargo Bank
Minnesota, N.A., as trustee for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2001-C1";
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and the originals or copies
of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the applicable
Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in complete form,
executed by the applicable Mortgage Loan Seller to "Xxxxx Fargo Bank
Minnesota, N.A., as trustee for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2001-C1";
(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
effective no earlier than the date of the recordation of the related
Mortgage, 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, interim binder, pro
forma or specimen title insurance policy (marked as binding and in all
cases countersigned by the title insurer or its authorized agent), dated
as of the date the related Mortgage Loan was funded;
(x) the original or copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan and any intervening assignments;
(xi) all UCC Financing Statements, assignments and continuation
statements or copies thereof, as filed or recorded, or in form that is
complete and suitable for filing or recording, as appropriate, or other
evidence of filing or recording acceptable to the Trustee 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
subordination agreement or intercreditor agreement, pursuant to which such
Additional Debt will be fully subordinated to such Mortgage Loan; and
(xiv) any additional documents required to be added to the Mortgage
File pursuant to this Agreement; (xv) with respect to any Mortgage Loan
secured by a ground lease, the related ground lease or a certified copy
thereof;
(xvi) a copy of any letter of credit securing such Mortgage Loan and
appropriate amendment, transfer or assignment documents permitting the
Servicer on behalf of the Certificateholders to draw on such letter of
credit; and
(xvii) a copy of any Environmental Indemnity Agreement; and (xviii)
with respect to any Mortgage Loan secured by a hotel, the related
franchise agreement and franchisor comfort letter, if any.
provided, however, that whenever the term "Mortgage File" is used to refer to
documents held by the Trustee, or a Custodian appointed thereby, such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually received by the Trustee or a Custodian
appointed thereby.
"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.
"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 (as specified in Exhibit A to the
Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining term
to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(xi) the applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(xiii) whether such Mortgage Loan has an Anticipated Repayment Date;
(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;
(xviii) whether such Mortgage Loan has a guarantor; and
(xix) whether such Mortgage Loan is secured by a letter of credit.
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of: (1) JPMorgan Chase Bank, a New York
banking corporation, or its respective successors in interest, (2) PNC Bank,
National Association, a national association organized under the laws of the
United States, or its respective successors in interest and (3) LaSalle Bank
National Association, a national association organized under the laws of the
United States, or its respective successors in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage 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 from time to time in
accordance with the related Mortgage Note and applicable law, exclusive of the
Excess Rate; (ii) any Mortgage Loan after its Maturity Date, the annual rate
described in clause (i) above determined without regard to the passage of such
Maturity Date; provided, however, 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 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 Mortgage Rate; provided, however, that with
respect to each Interest Reserve Loan, the Mortgage Rate for the one month
period (A) preceding the Due Dates that occur in January and February in any
year which is not a leap year or preceding the Due Date that occurs in February
in any year which is a leap year, and (B) preceding the Due Date in March, will
be the per annum rate stated in the related Mortgage Note and (iii) any REO
Loan, the annual rate described in clause (i) or (ii), as applicable, above
determined as if the predecessor Mortgage Loan had remained outstanding.
"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
voluntary Principal Prepayments on the Mortgage Loans during the related Due
Period, exceeds (b) the aggregate amount deposited by the Servicer in the
Certificate Account for such Distribution Date pursuant to Section 3.19 in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to any of the Certificate
Account, the Servicing Accounts or the REO Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date, the amount, if
any, by which the aggregate of all interest and other income realized during
such period on funds relating to the Trust Fund held in such account, exceeds
the aggregate of all losses, if any, incurred during such period in connection
with the investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any of the Certificate
Account, the Servicing Accounts or the REO Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date, the amount by
which the aggregate of all losses, if any, incurred during such period in
connection with the investment of funds relating to the Trust Fund held in such
account in accordance with Section 3.06, exceeds the aggregate of all interest
and other income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan
as of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the then applicable Administrative Cost Rate;
provided, however, that for purposes of calculating Pass-Through Rates, the Net
Mortgage Rate for any Mortgage Loan will be determined without regard to any
modification, waiver or amendment of the terms of such Mortgage Loan, whether
agreed to by the Servicer or resulting from a bankruptcy, insolvency or similar
proceeding involving the Mortgagor.
"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, if any, of "Net Operating Income"
endorsed and put forth by CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the 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.
"Newport 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 Newport Mortgage Loan on
deposit in the Newport Collection Account and the Loan REMIC
Distribution Account (exclusive of any Net Investment Earnings
contained therein) as of the close of business on the Business Day
preceding related P&I Advance Date, exclusive of (without
duplication):
(i) all Monthly Payments that are due on a Due Date following the
end of the related Due Period with respect to the Newport
Mortgage Loan;
(ii) all Principal Prepayments (together with any related payments
of interest allocable to the period following the Due Date for
the Newport Mortgage Loan during the related Due Period),
Liquidation Proceeds or Insurance and Condemnation Proceeds
received after the end of the related Due Period with respect
to the Newport Mortgage Loan;
(iii) all amounts payable or reimbursable to any Person from the
Newport Collection Account pursuant to clauses (ii) through
(xvi), inclusive and clause (xviii), of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from the
Loan REMIC Distribution Account pursuant to clauses (iii)
through (viii), inclusive, of Section 3.05(b);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in the Newport Collection Account or
Loan REMIC Distribution Account, as the case may be, in error;
and
(viii) with respect to 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 the Newport 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 Newport
Collection Account for such Distribution Date pursuant to Section
3.16(c);
(c) the aggregate amount of any P&I Advances made by the Servicer or the
Trustee, as applicable, for such Distribution Date pursuant to
Section 4.03 or 7.05 (net of the related Trustee Fee with respect to
the Newport Mortgage Loan for which such P&I Advance is made); and
(d) for the Distribution Date occurring in each March, the Withheld
Amount remitted to the Loan REMIC Distribution Account pursuant to
Section 3.26(b).
"Newport Collection Account": An account created and maintained by
the Servicer pursuant to Section 3.04(a) on behalf of the Trustee in trust for
the Certificateholders, which may be a sub-account of the Collection Account,
which shall be entitled "Midland Loan Services, Inc., as Servicer, in trust for
the registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 0000-X0, Xxxxxxx
Xxxxxxxxxx Account." Any such account shall be an Eligible Account.
"Newport Excess Strip Rate": With respect to any Interest Due
Period, a per annum rate equal to the excess of (x) the per annum Servicing Fee
Rate calculated with respect to the Newport Mortgage Loan for such Due Period
over (y) 0.07%.
"Newport Excess Strip Amount": With respect to any Due Period, an
amount equal to the product of (x) 1/12th of the Newport Excess Strip Rate for
such Due Period, and (y) the Stated Principal Balance of the Newport Mortgage
Loan immediately after the Due Date occurring in such Due Period.
"Newport Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule as loan number 1.
"Newport Mortgage Loan Remittance Rate": With respect to the Newport
Mortgage Loan for any Distribution Date, a rate equal to the Net Mortgage Rate
of the Newport Mortgage Loan.
"Newport Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Newport Principal
Shortfall for that Distribution Date, (b) the portion of the Scheduled Principal
Distribution Amount for such Distribution Date that relates to the Newport
Mortgage Loan and (c) the portion of the Unscheduled Principal Distribution
Amount for such Distribution Date that relates to the Newport Mortgage Loan.
"Newport Principal Shortfall": For any Distribution Date after the
initial Distribution Date, the amount, if any, by which (a) the Newport
Principal Distribution Amount for the preceding Distribution Date, exceeds (b)
the aggregate amount distributed in respect of principal on the Loan REMIC
Senior Regular Interest and the Class NC Certificates for such preceding
Distribution Date. The Newport Principal Shortfall for the initial Distribution
Date will be zero.
"Newport Representative": As defined in Section 3.29(j).
"Newport Senior Balance": The principal balance of the Newport
Senior Component outstanding from time to time which, as of the Closing Date is
equal to $120,635,000. On each Distribution Date, the Newport Senior Balance
shall be reduced by the amount of any distributions of principal allocated to
the Newport Senior Component on such Distribution Date pursuant to Section
4.01(j) or 9.01, as applicable, and shall be further reduced by the amount of
any Collateral Support Deficit incurred with respect to the Newport Mortgage
Loan allocated to any Class of Regular Certificates on such Distribution Date
pursuant to Section 4.04(a). The Newport Senior Balance will be increased on any
Distribution Date by the amount of any Certificate Deferred Interest
attributable to the Newport Mortgage Loan allocated to any Class of Regular
Certificates on such Distribution Date. Distributions in respect of a
reimbursement of a Collateral Support Deficit in respect of the Newport Mortgage
Loan previously allocated to any Class of Regular Certificates shall not
constitute distributions of principal and shall not result in reduction of the
Newport Senior Balance.
"Newport Senior Component": An undivided senior ownership interest
in the Loan REMIC represented by the Loan REMIC Senior Regular Interest.
"Newport Subordinate Balance": With respect to each Newport
Subordinate Component, the aggregate principal amount of such Newport
Subordinate Component outstanding from time to time which, on any date, shall
equal the Certificate Balance of the Related Class NC Certificates on such date.
On each Distribution Date, such Newport Subordinate Balance shall be reduced by
the amount of any distributions of principal allocated thereto on such
Distribution Date pursuant to Section 4.01(j) or 9.01, as applicable, and shall
be further reduced by the amount of any Collateral Support Deficit incurred with
respect to the Newport Mortgage Loan allocated to the Related Class NC
Certificates on such Distribution Date pursuant to Section 4.04(a). The Newport
Subordinate Balance will be increased on any Distribution Date by the amount of
any Certificate Deferred Interest attributable to the Newport Mortgage Loan
allocated to any Class of Class NC Certificates on such Distribution Date.
Distributions in respect of a reimbursement of a Collateral Support Deficit in
respect of the Newport Mortgage Loan previously allocated to any Class of Class
NC Certificates shall not constitute distributions of principal and shall not
result in reduction of the Newport Subordinate Balance.
"Newport Subordinate Component": The subordinate ownership interests
in the Loan REMIC represented by each of the Class KNC-1 and Class KNC-2
Uncertificated Interests.
"NOI Adjustment Worksheet": The monthly report in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, a current form of which
is attached hereto as Exhibit M-11, or such other form for the presentation of
such information as may be recommended from time to time by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "NOI Adjustment Worksheet" available as of the Closing Date on the
CMSA website, as reasonably acceptable to the Servicer or the Special Servicer,
as applicable, and the Directing Certificateholder.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the Servicer or the Trustee, as applicable, will not be
ultimately recoverable, together with any accrued and unpaid interest thereon,
from Late Collections or any other recovery on or in respect of such Mortgage
Loan or REO Loan. The determination by the Servicer or the Trustee, as
applicable, that it has made a Nonrecoverable P&I Advance or that any proposed
P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officer's Certificate delivered to the Trustee, the Paying Agent
and the Depositor, in the case of the Servicer, and to the Depositor and the
Paying Agent, in the case of the Trustee. The Officer's Certificate shall set
forth such determination of nonrecoverability and the considerations of the
Servicer or the Trustee, as applicable, forming the basis of such determination
(which shall be accompanied by, to the extent available, income and expense
statements, rent rolls, occupancy status, property inspections and any other
information used by the Servicer or the Trustee, as applicable, to make such
determination and shall include any existing Appraisal of the related Mortgage
Loan or Mortgaged Property). The Trustee shall be entitled to conclusively rely
on the Servicer's determination that a P&I Advance is or would be
nonrecoverable.
"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 or the Trustee, as the case may be,
will not be ultimately recoverable, together with any accrued and unpaid
interest thereon, from Late Collections or any other recovery on or in respect
of such Mortgage Loan or REO Property. The determination by the Servicer or the
Trustee, as the case may be, that it has made a Nonrecoverable Servicing Advance
or that any proposed Servicing Advance, if made, would constitute a
Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate
delivered to the Trustee, the Paying Agent, the Special Servicer and the
Depositor, in the case of the Servicer, and to the Depositor and the Paying
Agent, in the case of the Trustee. The Officer's Certificate shall set forth
such determination of nonrecoverability and the considerations of the Servicer
or the Trustee, as applicable, forming the basis of such determination (which
shall be accompanied by, to the extent available, income and expense statements,
rent rolls, occupancy status, property inspections and any other information
used by the Servicer or the Trustee, as applicable, to make such determination
and shall include any existing Appraisal of the related Mortgage Loan or
Mortgaged Property). The Trustee will be entitled to conclusively rely on the
Servicer's determination that a Servicing Advance is or would be nonrecoverable.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X-1, Class X-2, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class NR, Class NC-1, Class NC-2, Class S,
Class R or Class LR Certificate.
"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, 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 or more partnerships, trusts or other
pass-through entities by a Non-U.S. Person.
"Notional Amount": In the case of the Class X Certificates, the
Class X-1 Notional Amount and the Class X-2 Notional Amount. In the case of each
Component, the amount set forth in the applicable definition thereof.
"Offered Certificates": The Class A, 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, as the case may be.
"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, a current
form of which is attached hereto as Exhibit M-12, or such other form for the
presentation of such information as may be recommended from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Operating Statement Analysis Report" available as of the
Closing Date on the CMSA website, as reasonably acceptable to the Servicer or
the Special Servicer, as applicable, and the Directing Certificateholder.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Servicer or the Special
Servicer, acceptable in form and delivered to the Paying Agent and the Trustee,
except that any opinion of counsel relating to (a) the qualification of the
Upper-Tier REMIC, Lower-Tier REMIC or Loan REMIC as a REMIC, (b) compliance with
the REMIC Provisions, (c) qualification of the Grantor Trust as a grantor trust
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.
"Original Certificate Balance": With respect to any Class of Regular
Certificates or Class NC Certificates (other than the Class X Certificates), the
initial aggregate principal amount thereof as of the Closing Date, in each case
as specified in the Preliminary Statement.
"Original Loan REMIC Principal Amount": With respect to any Class of
Loan REMIC Regular Interests, the initial 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-1 Notional
Amount or the Class X-2 Notional Amount, the Original Notional Amount thereof as
of the Closing Date, as specified in the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property based
upon the Appraisal conducted in connection with the origination of the related
Mortgage Loan.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Servicer or the Trustee, as applicable, pursuant to Section 4.03 or
Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the related Determination 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 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 NR Pass-Through
Rate, the Class NC-1 Pass-Through Rate, the Class NC-2 Pass-Through Rate, the
Class X-1 Pass-Through Rate and the Class X-2 Pass-Through Rate.
"Paying Agent": LaSalle Bank National Association, a national
banking association, or any successor appointed thereto pursuant to Section 5.06
or any successor paying agent appointed hereunder.
"Paying Agent Fee": The portion of the Trustee Fee payable to the
Paying Agent pursuant to the terms hereof calculated at the Paying Agent Fee
Rate of 0.001% per annum.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan), any amounts actually collected thereon from the Mortgagor that
represent late payment charges or Default Interest, other than a Yield
Maintenance Charge or Excess Interest.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the initial
Certificate Balance or Notional Amount, as applicable, of such Class of
Certificates as of the Closing Date. With respect to a Class S or a Residual
Certificate, the percentage interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Paying
Agent if otherwise qualifying hereunder), regardless whether issued by the
Depositor, the Servicer, the Special Servicer, the Trustee or any of their
respective Affiliates and having the required ratings, if any, provided for in
this definition and which shall not be subject to liquidation prior to maturity:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States
of America, Xxxxxx Xxx, Xxxxxxx Mac or any agency or
instrumentality of the United States of America, the
obligations of which are backed by the full faith and credit
of the United States of America that mature in one year or
less from the date of acquisition; provided that any
obligation of, or guarantee by, Xxxxxx Mae or Xxxxxxx Mac,
other than an unsecured senior debt obligation of Xxxxxx Mae
or Xxxxxxx Mac, shall be a Permitted Investment only if such
investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each
Rating Agency to any Certificate as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or bankers'
acceptances that mature in 1 year or less from the date of
acquisition 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 of S&P and Fitch or such
other rating as would not result in the downgrading,
withdrawal or qualification of the then-current rating
assigned by each Rating Agency to any Certificate, as
evidenced in writing;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has
a remaining maturity of 1 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
year or less from the date of acquisition, which debt
obligations are rated in the highest rating categories of each
of S&P and Fitch or such other rating as would not result in
the downgrading, withdrawal or qualification of the
then-current rating assigned by each Rating Agency to any
Certificate as specified in writing by each of the Rating
Agencies; provided, however, that securities issued by any
particular corporation will not be Permitted Investments to
the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such
corporation and held in the accounts established hereunder to
exceed 10% of the sum of the aggregate principal balance and
the aggregate principal amount of all Permitted Investments in
such accounts;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations) of any
corporation or other entity organized under the laws of the
United States or any state thereof payable on demand or on a
specified date maturing in 1 year or less after the date of
acquisition thereof and which is rated in the highest rating
category of each of S&P and Fitch (or such lower rating as
will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in
writing by the Rating Agencies);
(vi) money market funds, rated in the highest rating categories of
each of S&P and Fitch; and
(vii) any other demand, money market or time deposit, obligation,
security or investment, (a) with respect to which each Rating
Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of
the then-current rating of the Certificates that are currently
being rated by such Rating Agency and (b) which qualifies as a
"cash flow investment" pursuant to Section 860G(a)(6) of the
Code;
provided, however, that in each case if the investment is rated by S&P, (a) it
shall not have an "r" highlighter affixed to its rating from S&P, (b) it shall
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change and (c) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any, and move proportionately with such index; and
provided, further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; and provided, further, however, that no amount
beneficially owned by the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
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, the Lower-Tier REMIC or the Loan REMIC as a REMIC under
the Code or result in imposition of a tax on such Upper-Tier REMIC, Lower-Tier
REMIC or Loan REMIC. Permitted Investments that are subject to prepayment or
call may not be purchased at a price in excess of par.
"Permitted Transferee" Any Person who is a Qualified Institutional
Buyer.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Placement Agents": X.X. Xxxxxx Securities Inc. and PNC Capital
Markets, Inc.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount, market discount and 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 Shortfall": With respect to any Mortgage Loan
that was subject to a voluntary Principal Prepayment in full or in part during
any Due Period or, with respect to Mortgage Loans sold by PNC to the Depositor,
during the PNC Prepayment Period, which Principal Prepayment was applied to such
Mortgage Loan prior to such Mortgage Loan's Due Date or prior to the last day of
the PNC Prepayment Period, as applicable, in such Due Period or PNC Prepayment
Period, the amount of interest, to the extent not collected from the related
Mortgagor (without regard to any 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 the day immediately preceding such Due Date or PNC Prepayment Period, as
applicable, inclusive. For purposes of this definition, "PNC Prepayment Period"
shall mean, with respect to any Distribution Date, the period from but excluding
the 5th day of the prior calendar month to and including the 5th day of the
current calendar month.
"Primary Servicing Fee": The monthly fee payable by the Servicer
from the Servicing Fee to each Initial Sub-Servicer, which monthly fee accrues
at the rate per annum specified as such in the Sub-Servicing Agreement with such
Initial Sub-Servicer.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of The Wall Street Journal (or, if such section or publication is no
longer available, such other comparable publication as determined by the Paying
Agent in its reasonable discretion) as may be in effect from time to time, or,
if the "Prime Rate" no longer exists, such other comparable rate (as determined
by the Paying Agent in its reasonable discretion) as may be in effect from time
to time.
"Principal Distribution Amount": With respect to any Distribution
Date, 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.
"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, the amount, if any, by which (a) the related Principal
Distribution Amount for the preceding Distribution Date, exceeded (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 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.
"Prospectus": The Prospectus dated November 16, 2001, as
supplemented by the Prospectus Supplement dated December 4, 2001, relating to
the offering of the Offered Certificates.
"Purchase Option": As defined in Section 3.18 (a)(ii).
"Purchase Option Notice": As defined in Section 3.18 (a)(iii).
"Purchase Price": With respect to any Mortgage Loan to be purchased
by a Mortgage Loan Seller pursuant to Section 3 of the related Mortgage Loan
Purchase Agreement, by any Person pursuant to Section 3.18(a) or 3.18(d), or by
the Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates pursuant to Section 9.01 or to be otherwise
sold pursuant to Section 3.18(b), a price equal to:
(i) the outstanding principal balance of such Mortgage Loan as of
the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan at the
related Mortgage Rate in effect from time to time to but not including the
Due Date in the Due Period related to the Distribution Date in which such
Purchase Price is included in the Available Distribution Amount; plus
(iii) all related unreimbursed Servicing Advances and accrued and
unpaid interest on related Advances at the Reimbursement Rate, and unpaid
Special Servicing Fees allocable to such Mortgage Loan; plus
(iv) if such Mortgage Loan is being purchased by a Mortgage Loan
Seller pursuant to Section 3 of the applicable Mortgage Loan Purchase
Agreement, 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.
With respect to any REO Property to be sold pursuant to Section 3.18(b), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan.
"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
(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, in the case of clauses (i) and (ii), such other rating as each Rating Agency
shall have confirmed in writing will not cause such Rating Agency to downgrade,
qualify or withdraw the then-current rating assigned to any of the Certificates
that are then currently being rated by such Rating Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, 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
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 an original loan-to-value ratio not higher
than that of the deleted Mortgage Loan 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)
materially comply 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 an
original debt service coverage ratio of not less than the original debt service
coverage ratio of the deleted Mortgage Loan and a current debt service coverage
ratio of not less than the current debt service coverage ratio of the deleted
Mortgage Loan; (x) be determined by an Opinion of Counsel (at the applicable
Mortgage Loan Seller's expense) to be a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; (xi) not have a maturity date
after the date two years prior to the Rated Final Distribution Date; (xii) 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); (xiii) have been approved by the Directing
Certificateholder, provided that the related Mortgage Loan Seller will pay all
reasonable due diligence expenses, including reasonable legal fees and expenses,
incurred by the Directing Certificateholder in reviewing any proposed substitute
Mortgage Loan whether or not such substitute Mortgage Loan is accepted; (xiv)
prohibit defeasance within 2 years of the Closing Date; and (xv) not be
substituted for a deleted Mortgage Loan if it would result in the termination of
the REMIC status of any of the REMICs established under this Agreement or the
imposition of tax on any of such REMICs other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement, as
determined by an Opinion of Counsel. In the event that one or more mortgage
loans are substituted for one or more deleted Mortgage Loans simultaneously,
then the amounts described in clause (i) shall be determined on the basis of
aggregate principal balances 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. When a Qualified Substitute Mortgage
Loan is substituted for a deleted Mortgage Loan, the applicable Mortgage Loan
Seller shall certify that the Mortgage Loan meets all of the requirements of the
above definition and shall send such certification to the Trustee.
"Rated Final Distribution Date": As to each Class of Certificates,
October 12, 2035, 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. 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 NR and Class X Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Book-Entry Certificates": The Regular Certificates
sold in offshore transactions in reliance on Regulation S and represented by one
or more Book-Entry Certificates deposited with the Paying Agent as custodian for
the Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate and shall be compounded monthly.
"Related Certificates", "Related Uncertificated Lower-Tier
Interests", "Related Components of Class X Certificates" and "Related Loan REMIC
Regular Interests": For the following Classes of Uncertificated Lower-Tier
Interests, the related Class of Certificates, the related Component(s) of Class
X Certificates and the related Class of Loan REMIC Regular Interests, if
applicable, set forth below; for the following Classes of Certificates, the
related Class of Uncertificated Lower-Tier Interests, the related Component(s)
of the Class X Certificates and the related Class of Loan REMIC Regular
Interests, if applicable, set forth below; for the following Components of the
Class X Certificates, the related Class of Uncertificated Lower-Tier Interests,
the related Class of Loan REMIC Regular Interests and the related Class of
Certificates set forth below and for the following Classes of Loan REMIC Regular
Interests, the related Class of Uncertificated Lower-Tier Interests, the related
Components of the Class X Certificates and the related Class of Certificates set
forth below:
Related Components Related
Related Uncertificated of Class X Loan REMIC
Related Certificate Lower-Tier Interest Certificates Regular Interest
--------------------- ---------------------- ------------------ ------------------
Class A-1 Certificate Class XX-0 XX-0 N/A
Uncertificated Interest
Class A-2 Certificate Class XX-0 XX-0 N/A
Uncertificated Interest
N/A
Class A-3 Certificate Class LA-3-1 XA-3-1
Uncertificated Interest
Class LA-3-2 XA-3-2 N/A
Uncertificated Interest
Class B Certificate Class LB XB N/A
Uncertificated Interest
Class C Certificate Class LC XC N/A
Uncertificated Interest
Class D Certificate Class LD XD N/A
Uncertificated Interest
Class E Certificate Class LE XE N/A
Uncertificated Interest
Class F Certificate Class LF-1 XF-1 N/A
Uncertificated Interest
Class LF-2 XF-2 N/A
Uncertificated Interest
Class G Certificate Class LG XG N/A
Uncertificated Interest
Class H Certificate Class LH XH N/A
Uncertificated Interest
Class J Certificate Class LJ XJ N/A
Uncertificated Interest
Class K Certificate Class LK XK N/A
Uncertificated Interest
Class L Certificate Class LL XL N/A
Uncertificated Interest
Class M Certificate Class LM XM N/A
Uncertificated Interest
Class N Certificate Class LN XN N/A
Uncertificated Interest
Class NR Certificate Class LNR XNR N/A
Uncertificated Interest
Class NC-1 Class LNC-1 XNC-1 Class KNC-1
Certificate Uncertificated Interest Uncertificated
Interest
Class NC-2 Class LNC-2 XNC-2 Class KNC-2
Certificate Uncertificated Interest Uncertificated
Interest
"Release Date": The date that is 40 days after the later of (i) the
commencement or the offering of the Certificates and (ii) the Closing Date.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Paying Agent or any REMIC administrator
appointed pursuant to Section 10.01.
"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 "[Special
Servicer], as Special Servicer, for the benefit of Xxxxx Fargo Bank Minnesota,
N.A., as trustee, in trust for registered Holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1, REO Account." Any such account or accounts shall
be an Eligible Account.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of the Trust
Fund and provides for Assumed Scheduled Payments on each Due Date therefor, and
otherwise has the same terms and conditions as its predecessor Mortgage Loan,
including, without limitation, with respect to the calculation of the Mortgage
Rate in effect from time to time (such terms and conditions to be applied
without regard to the default on such predecessor Mortgage Loan). Each REO Loan
shall be deemed to have an initial outstanding principal balance and Stated
Principal Balance equal to the outstanding principal balance and Stated
Principal Balance, respectively, of its predecessor Mortgage Loan as of the date
of the related REO Acquisition. All amounts due and owing in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, accrued and unpaid interest, shall continue to be
due and owing in respect of an REO Loan. All amounts payable or reimbursable to
the Servicer, the Special Servicer, or the Trustee, as applicable, in respect of
the predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, any unpaid Special Servicing Fees and Servicing
Fees and any unreimbursed Advances, together with any interest accrued and
payable to the Servicer or the Trustee in respect of such Advances in accordance
with Section 3.03(d) or Section 4.03(d), shall continue to be payable or
reimbursable to the Servicer or the Trustee in respect of an REO Loan.
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 principal of such REO Loan to the extent of its entire unpaid
principal balance; and third, in accordance with the Servicing Standards of the
Servicer, as a recovery of any other amounts due and owing in respect of such
REO Loan, including, without limitation, (i) Yield Maintenance Charges and
Penalty Charges and (ii) Excess Interest and other amounts, in that order.
"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 and the Trustee (as holder of the
Uncertificated Lower-Tier Interests and the Loan REMIC Regular 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.
"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, a current form of which is attached hereto as Exhibit
M-13, or such other form for the presentation of such information as may be
recommended from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "REO Status
Report" available as of the Closing Date on the CMSA website, as reasonably
acceptable to the Servicer or the Special Servicer, as applicable, and the
Directing Certificateholder.
"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.
"Resolution Extension Period: With respect any Mortgage Loan and any
Defect which would require the related Mortgage Loan Seller to cure, repurchase
or substitute for such Mortgage Loan pursuant to the terms of the related
Mortgage Loan Purchase Agreement:
(i) With respect to a Defect relating to any Mortgage Loan which is
not a Specially Serviced Mortgage Loan, the 90-day period following the
end of the applicable Initial Resolution Period;
(ii) With respect to a Defect relating to any Mortgage Loan that is
not a Specially Serviced Mortgage Loan at any time during the applicable
Initial Resolution Period, the period commencing at the end of the
applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following the applicable Mortgage Loan
Seller's receipt of written notice from the Servicer or the Special
Servicer of the occurrence of any Servicing Transfer Event with respect to
such Mortgage Loan subsequent to the end of such Initial Resolution
Period;
(iii) With respect to a Defect relating to any Mortgage Loan that is
not a Specially Serviced Mortgage Loan as of the commencement of the
applicable Initial Resolution Period but as to which a Servicing Transfer
Event occurs during such Initial Resolution Period, the period commencing
at the end of the applicable Initial Resolution Period and ending on, and
including, the 90th day following the applicable Mortgage Loan Seller's
receipt of written notice from the Servicer or the Special Servicer of the
occurrence of such Servicing Transfer Event; and
(iv) With respect to a Defect relating to any Mortgage Loan that is
a Specially Serviced Mortgage Loan as of the commencement of the
applicable Initial Resolution Period, zero days, provided that, if the
applicable Mortgage Loan Seller did not receive written notice from the
Servicer or the Special Servicer of the relevant Servicing Transfer Event
as of the commencement of the applicable Initial Resolution Period, then
such Servicing Transfer Event will be deemed to have occurred during such
Initial Resolution Period and clause (iii) of this definition will be
deemed to apply.
"Responsible Officer": When used with respect to the initial Trustee
or Paying Agent, any Vice President, Assistant Vice President, Assistant
Secretary, corporate trust officer or assistant corporate trust officer in the
corporate trust department of Xxxxx Fargo Bank Minnesota, N.A., and with respect
to any successor Trustee or Paying Agent, any officer or assistant officer in
the corporate trust department of the Trustee or Paying Agent, or any other
officer of the Trustee or Paying Agent customarily performing functions similar
to those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee or Paying Agent because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Placement Agents and any other distributor (as
such term is defined in Regulation S) of the Certificates and (b) the Closing
Date.
"Retained Fee Rate": A rate of 0.01% per annum.
"Revised Rate": With respect to those Mortgage Loans on the Mortgage
Loan Schedule indicated as having a revised rate, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A" Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., and its successors in interest. If S&P nor any successor
remains in existence, "S&P" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, the
Paying Agent, the Servicer and the Special Servicer, and specific ratings of S&P
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the principal portions of (a) all Monthly
Payments (excluding Balloon Payments and Excess Interest) due in respect of the
Mortgage Loans during or, if and to the extent not previously received or
advanced pursuant to Section 4.03 in respect of a preceding Distribution Date,
prior to, the related Due Period, and all Assumed Scheduled Payments for the
related Due Period, in each case to the extent either (i) paid by the Mortgagor
as of the Business Day preceding the related P&I Advance Date (and not
previously distributed to Certificateholders) or (ii) advanced by the Servicer
or the Trustee, as applicable, pursuant to Section 4.03 in respect of such
Distribution Date, and (b) all Balloon Payments to the extent received during
the related Due Period (including any applicable grace periods), and to the
extent not included in clause (a) above; provided that, with respect to the
Newport Mortgage Loan, for purposes of calculating the Available Distribution
Amount, such amounts will only include amounts applied in respect of the Newport
Senior Component.
"Securities Act": The Securities Act of 1933, as amended.
"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": Midland Loan Services, Inc., a Delaware corporation, and
its successors in interest and assigns, or any successor Servicer appointed as
herein provided.
"Servicer Watch List": As of each Determination Date a report, in
the "CMSA Servicer Watch List" format presented from time to time by the CMSA
and containing the information called for therein. Until the content of such
report is presented by the CMSA, such report, a current form of which is
attached hereto as Exhibit M-14, shall include and identify each Mortgage Loan
that is not a Specially Serviced Mortgage Loan (i) with a Debt Service Coverage
Ratio of less than 1.05x, other than Mortgage Loans whose operations results for
the first year of operations represent less than seven months of operating
history, (ii) that has a Stated Maturity Date occurring in the next ninety days,
(iii) that is delinquent in respect of its real estate taxes, (iv) for which any
outstanding Advance exists and has been outstanding for 30 days or more, (v)
that has been a Specially Serviced Mortgage Loan in the past 90 days, (vi) for
which the Debt Service Coverage Ratio has decreased by more than 10% in the
prior 12 months and is less than 1.40x, (vii) for which any lease relating to
more than 25% of the rentable area of the related Mortgaged Property has
expired, been terminated, is in default or will expire within the next three
months (without being replaced by one or more tenants or leases), (viii) that is
late in making its Monthly Payment three or more times in the preceding twelve
months, (ix) with material deferred maintenance at the related Mortgaged
Property or (x) that is 30 or more days delinquent; provided that a Mortgage
Loan will not be identified on the Watch List solely because the related
Mortgagor has failed to deliver operating statements, rent rolls or other
financial statements required to be delivered under the Mortgage Loan documents.
"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 or the Trustee, as applicable,
in connection with the servicing and administering of (a) a Mortgage Loan in
respect of which a default, delinquency or other unanticipated event has
occurred or as to which a default is reasonably foreseeable or (b) an REO
Property, including, but not limited to, 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. 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 and REO Loan,
the fee payable to the Servicer pursuant to the first paragraph of Section
3.11(a).
"Servicing Fee Rate": 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; provided, however, that the Servicing Fee Rate with respect to
the Newport Mortgage Loan will be equal to a rate equal to (A) the sum of (i)
0.100% of the Newport Senior Balance plus (ii) 0.070% of the Newport Subordinate
Balance, divided by (B) the sum of the Newport Senior Balance and Newport
Subordinate Balance. On the Closing Date the range of Servicing Fee Rates will
be 0.0700% to 0.1700% and the weighted average will be 0.826%.
"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, whose name and specimen signature appear on a
list of servicing officers furnished by the Servicer and the Special Servicer to
the Paying Agent, the Trustee and the Depositor on the Closing Date as such list
may be amended from time to time thereafter.
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the following events:
(i) with respect to a Mortgage Loan that is not a Balloon Mortgage
Loan, (a) a payment default shall have occurred at its original maturity
date, or (b) if the original maturity date of such Mortgage Loan has been
extended, a payment default shall have occurred at such extended maturity
date;
(ii) with respect to each Balloon Mortgage Loan, (a) a payment
default shall have occurred at its original maturity date or (b) 90 days
after the maturity date if the related Mortgagor has continued to make all
scheduled Monthly Payments; provided, that at the request of the Directing
Certificateholder, the Servicing Transfer Event shall be delayed for an
additional 60 days in either case if the related Mortgagor has delivered
to the Servicer a refinancing commitment reasonably satisfactory in form
and substance to the Special Servicer and the Directing Certificateholder;
(iii) any Monthly Payment (other than a Balloon Payment) is 60 days
or more delinquent; or
(iv) the date upon which the Servicer determines that a payment
default is imminent and is not likely to be cured by the related Mortgagor
within 60 days; or
(v) the date upon which 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, and being 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, such Mortgage Loan shall not be a Specially Serviced Mortgage
Loan (and no Special Servicing Fees, Workout Fees or Liquidation Fees will
be payable with respect thereto); or
(vi) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all
of its property; or
(vii) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(viii) a default of which the Servicer has notice (other than a
failure by such Mortgagor to pay principal or interest) and which in the
opinion of the Servicer materially and adversely affects the interests of
the Certificateholders has occurred and remained unremedied for the
applicable grace period specified in such Mortgage 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.
"Similar Law": As defined in Section 5.02(c).
"Special Servicer": Midland Loan Services, Inc., a Delaware
corporation, and its permitted successors and assigns, or any successor Special
Servicer appointed as herein provided.
"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 and on the basis of
a 360-day year with twelve 30-day months.
"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 and distributed to
Certificateholders on or before such date of determination;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination;
(iii) the principal portion of all Insurance and Condemnation
Proceeds and Liquidation Proceeds received with respect to such Mortgage
Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination; and
(iv) any reduction in the outstanding principal balance of such
Mortgage Loan resulting from a Deficient Valuation that occurred prior to
the end of the Due Period for the most recent Distribution Date.
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect to
the predecessor Mortgage Loan on or after the date of the related REO
Acquisition, to the extent distributed to Certificateholders on or before
such date of determination; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues received with respect to
such REO Loan, to the extent distributed to Certificateholders on or
before such date of determination.
A Mortgage Loan or an REO Loan shall be deemed to be part of the
Trust Fund and to have an outstanding Stated Principal Balance until the
Distribution Date on which the payments or other proceeds, if any, received in
connection with a Liquidation Event in respect thereof are to be (or, if no such
payments or other proceeds are received in connection with such Liquidation
Event, would have been) distributed to Certificateholders.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N or Class
NR Certificate.
"Sub-Servicer": Any Person with which the Servicer or the Special
Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Servicer
or the Special Servicer, as the case may be, and any Sub-Servicer relating to
servicing and administration of Mortgage Loans as provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the outstanding principal balance of the related Qualified
Substitute Mortgage Loan after application of all scheduled payments of
principal and interest due during or prior to the month of substitution. In the
event that one or more Qualified Substitute Mortgage Loans are substituted (at
the same time) 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 Loan(s).
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit 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, the Lower-Tier REMIC and the Loan
REMIC due to its classification as a REMIC under the REMIC Provisions, together
with any and all other information, reports or returns that may be required to
be furnished to the Certificateholders or filed with the 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.
"Transferable Servicing Interest": Subject to reduction by the
Trustee pursuant to Section 3.11(a), the amount by which the Servicing Fees
otherwise payable to the Servicer hereunder exceed the sum of (i) the Primary
Servicing Fees, (ii) the amount of the Servicing Fees calculated using the
Retained Fee Rate and (iii) with respect to the Newport Mortgage Loan, any
portion of the Servicing Fee relating to the Newport Excess Strip Rate.
"Transfer Affidavit": As defined in Section 5.02(c)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(c)(i)(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; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date; (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 Distribution Accounts, the Excess Interest Distribution
Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account, any REO
Account (to the extent of the Trust Fund's interest therein), including any
reinvestment income, as applicable; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (x) the rights and remedies under each Mortgage Loan Purchase
Agreement; (xi) and the Lower-Tier Regular 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 Borrower).
"Trustee": Xxxxx Fargo Bank Minnesota, N.A., a national banking
association, in its capacity as trustee and its successors in interest, or any
successor trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(b).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement. The Trustee Fee includes the
Paying Agent Fee.
"Trustee Fee Rate": A rate equal to 0.002% per annum computed on the
basis of the Stated Principal Balance of 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-0, Class LA-3-1, Class LA-3-2, Class LB, Class LC, Class LD, Class LE, Class
LF-1, Class LF-2, Class LG, Class LH, Class LJ, Class LK, Class LL, Class LM,
Class LN, Class LNC-1, Class LNC-2 and Class LNR Uncertificated Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., ABN AMRO Incorporated,
PNC Capital Markets, Inc. and Deutsche Banc Alex. Xxxxx, Inc.
"Underwritten Debt Service Coverage Ratio": With respect to any
Mortgage Loan, the ratio of (i) Underwritten Net Cash Flow produced by the
related Mortgaged Property to (ii) the aggregate amount of the Monthly Payments
due for the 12-month period immediately following the Cut-off Date, except with
respect to those Mortgage Loans identified on Schedule 4 where Monthly Payments
pay interest only for a specified period of time set forth in the related
Mortgage Loan documents and then pay principal and interest, but for purposes of
this definition only, shall be assumed to include interest and principal (based
upon the amortization schedule length indicated on Schedule 4).
"Underwritten Net Cash Flow": With respect to any Mortgaged
Property, the estimated annual revenue derived from the use and operation of
such Mortgaged Property, less estimated annual expenses, including operating
expenses (such as utilities, administrative expenses, repairs and maintenance,
tenant improvement costs, leasing commissions, management fees and advertising),
fixed expenses (such as insurance, real estate taxes and, if applicable, ground
lease payments) and replacement reserves and an allowance for vacancies and
credit losses. In calculating Underwritten Net Cash Flow, certain non-operating
items such as depreciation, amortization, partnership distributions, financing
fees and capital expenditures other than applicable reserves, are not included
as expenses.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of (a) all Principal Prepayments received on
the Mortgage Loans during the related Due Period; and (b) the principal portions
of all Liquidation Proceeds, Insurance and Condemnation Proceeds and, if
applicable, REO Revenues received with respect to the Mortgage Loans and any REO
Loans during the related Due Period, 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; provided, that, with respect to the Newport Mortgage Loan,
for purposes of calculating the Available Distribution Amount, such amounts will
only include amounts applied in respect of the Newport Senior Component.
"Upper-Tier Distribution Account": The segregated account or
accounts created and maintained by the Paying Agent pursuant to Section 3.04(b)
in trust for the Certificateholders, which shall be entitled "LaSalle Bank
National Association, as Paying Agent, in trust for the registered Holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2001-C1, Upper-Tier Distribution Account". Any
such account or accounts shall be an Eligible Account.
"Upper-Tier REMIC": One of the three 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 or the District of Columbia, including any entity
treated as a corporation or partnership for federal income tax purposes, an
estate whose income is subject to United States federal income tax regardless of
its source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates (allocated pro rata between the Class X-1 and Class X-2
Certificates based upon their Class Notional Amounts at the time of such
determination), 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 NC-1, Class NC-2, Class S Certificates,
the Class R Certificates nor 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.
"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 (or in the case of the
Newport Mortgage Loan, the Newport Senior Balance) 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 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
Default Interest) of interest and principal (other than any amount for which a
Liquidation Fee would be paid), including (i) Monthly Payments, (ii) Balloon
Payments and (iii) payments (other than those included in clause (i) or (ii) of
this definition) at maturity, received on each Corrected Mortgage Loan for so
long as it remains a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations.
Unless otherwise specified herein, for purposes of determining
amounts with respect to the Certificates and the rights and obligations of the
parties hereto, the following provisions shall apply:
(i) All calculations of interest (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of
a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the Servicer, the Special Servicer,
the Paying Agent 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 such Distribution Date pursuant to
Section 4.04 and (c) the addition of any Certificate Deferred Interest
allocated to such Class and added to such Certificate Balance pursuant to
Section 4.06(b).
(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 and the Loan REMIC Regular 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 2, 3, 9,
10, 11, 13 and 16 of each of the Mortgage Loan Purchase Agreements, and (iii)
all other assets included or to be included in the Trust Fund. Such assignment
includes all interest and principal received or receivable on or with respect to
the Mortgage Loans (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
2, 3, 9, 11, 13 and 16 of each of the Mortgage Loan Purchase Agreements, it is
intended that the Trustee get the benefit of Sections 8, 10 and 12 thereof in
connection with any exercise of rights under such assigned Sections, and the
Depositor shall use its best efforts to make available to the Trustee the
benefits of Sections 8, 10 and 12 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 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, in good faith attempting 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, 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 such 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 clauses (iii), (v) or (xi) of the definition of "Mortgage
File" solely because of the unavailability of filing or recording information as
to any existing document or instrument and/or because such assignments are
assignments in blank and have not been completed in favor of the Trustee as
specified in the related clause(s) of the definition of "Mortgage File", such
Mortgage Loan Seller may provisionally satisfy the delivery requirements of the
related Mortgage Loan Purchase Agreement and this Section 2.01(b) by delivering
with respect to such Mortgage Loan on the Closing Date an omnibus assignment of
such Mortgage Loan substantially in the form of Exhibit H; provided that all
required original assignments with respect to such Mortgage Loan, in fully
complete and recordable form (or form suitable for filing, if applicable), are
delivered to the Trustee or its Custodian within 180 days of the Closing Date
(or within such longer period, not to exceed 18 months, as the Trustee in its
discretion may consent to, which consent shall not be unreasonably withheld, so
long as the applicable Mortgage Loan Seller is, as certified in writing to the
Trustee no less often than every 90 days, in good faith attempting 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
the documents referred to in clause (xvi) of the definition of Mortgage File,
the Servicer shall hold the original of such document in trust on behalf of the
Trustee in order to draw on such letter of credit 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 such document a copy thereof to the Trustee together with an
officer's certificate of the Mortgage Loan Seller certifying that such document
has been delivered to the Servicer. The applicable Mortgage Loan Seller shall
pay any costs of assignment or amendment of such letter of credit required in
order for the Servicer to draw on such letter of credit.
(c) Pursuant to each Mortgage Loan Purchase Agreement, each Mortgage
Loan Seller is required at its sole cost and expense, to itself, or to engage a
third party to, put each assignment 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"
(collectively the "Assignments" and individually, an "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 will be required to deliver the omnibus assignment of such Mortgage Loans
to the Trustee or its Custodian as provided in Section 2.01(b). Except under the
circumstances provided for in the last sentence of this subsection (c), each
Mortgage Loan Seller will itself, or a third party at such Mortgage Loan
Seller's expense will, promptly (and in any event within 120 days of the later
of the Closing Date and the Trustee's actual receipt of the related documents)
cause each Assignment 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 such Assignment submitted for recording shall
reflect that it should be returned by the public recording office to the
Mortgage Loan Seller or its designee following recording, and each such UCC
assignment submitted for recording or filing shall reflect that the file copy
thereof should be returned to the Mortgage Loan Seller or its designee following
recording or filing. Upon receipt, the Mortgage Loan Seller shall promptly
forward such Assignments 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
Trustee shall prepare or allow the Mortgage Loan Seller or its designee to
prepare, in each case, at the expense of the related Mortgage Loan Seller a
substitute therefor or cure such defect, as the case may be, and thereafter the
Trustee shall upon receipt thereof cause the same to be duly recorded or filed,
as appropriate. If, by the first anniversary of the Closing Date, the Trustee
has not received confirmation of the recording or filing as the case may be, of
any such Assignment, it shall so advise the related Mortgage Loan Seller who may
then pursue such confirmation itself or request that the Trustee pursue such
confirmation at the related Mortgage Loan Seller's expense, and upon such a
request and provision for payment of such expenses satisfactory to the Trustee,
the Trustee, at the expense of the applicable Mortgage Loan Seller, shall cause
a search of the land records of each 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. A Mortgage Loan Seller shall pay the expenses
for the preparation of replacement Assignments for any Assignments which, having
been properly submitted for filing or recording to the appropriate governmental
office by the Trustee, fail to appear of record and must be resubmitted.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii) or (v) of the definition
of "Mortgage File", or to file any UCC-3 to the Trustee referred to in clause
(xi) of the definition of "Mortgage File", in those jurisdictions where, in the
written opinion of local counsel (which opinion shall be an expense of the
related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such
recordation and/or filing is not required to protect the Trustee's interest in
the related Mortgage Loans against sale, further assignment, satisfaction or
discharge by the related Mortgage Loan Seller, the Servicer, the Special
Servicer, any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
financial statements, operating statements and any other information provided by
the respective Mortgagor from time to time, but excluding documents prepared by
the Mortgage Loan Seller or any of its Affiliates solely for internal
communication) that are not required to be a part of a Mortgage File in
accordance with the definition thereof together with copies of all documents in
each Mortgage File, shall be delivered to the Servicer on or before the Closing
Date and shall be held by the Servicer on behalf of the Trustee in trust for the
benefit of the Certificateholders (and as holder of the Uncertificated
Lower-Tier Interests).
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Servicer, on or before
the Closing Date, a fully executed original counterpart of each of the Mortgage
Loan Purchase Agreements, as in full force and effect, without amendment or
modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Mortgage Loans 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.
Section 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to the
provisions of Section 2.01 and subject to any exceptions noted on the Trustee
Exception Report delivered by the Trustee on the Closing Date, of the applicable
documents specified in clauses (i), (ii), (ix), (xv) (to the extent such item is
identified in the applicable Mortgage Loan Schedule) and (xvi) (to the extent
such item is identified in the applicable Mortgage Loan Schedule) 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, in good faith and without
notice of any adverse claim, and declares that it or a Custodian on its behalf
holds and will hold such documents and the other documents delivered or caused
to be delivered by the Mortgage Loan Sellers constituting the Mortgage Files,
and 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. With respect to the Exception Report delivered by the
Trustee on the Closing Date, within fifteen (15) Business Days of the Closing
Date, with respect to the documents specified in clauses (i), (ii), (ix), (xv)
and (xvi) of the definition of Mortgage File, the related Mortgage Loan Seller
shall cure any exception listed therein (for the avoidance of doubt, any
deficiencies with respect to the documents specified in clause (ii) resulting
solely from a delay in the return of the related documents from the applicable
recording office, shall be cured in the time and manner described in Section
2.02(e)). If such exception is not so cured, the related Mortgage Loan Seller
shall either (1) repurchase the related Mortgage Loan, (2) with respect to
exceptions relating to clause (xvi), of the definition of "Mortgage File",
deposit with the Trustee an amount, to be held in trust in a segregated Eligible
Account, equal to the amount of the undelivered letter of credit (in the
alternative, the related Mortgage Loan Seller may deliver to the Servicer, with
a certified copy to the Trustee, a letter of credit for the benefit of the
Servicer on behalf of the Trustee and upon the same terms and conditions as the
undelivered letter of credit) which the Servicer on behalf of the Trustee may
use (or draw upon, as the case may be) under the same circumstances and
conditions as the Servicer would have been entitled to draw on the undelivered
letter of credit, or (3) with respect to any of the other documents, 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. Any funds or letter of credit deposited pursuant to clauses (2) and (3)
shall be held by the Trustee or the Servicers, as applicable, until the earlier
of (x) the date on which the Servicer certifies to the Trustee and the Directing
Certificateholder that such exception has been cured (or the Trustee certifies
the same to the Directing Certificateholder), at which time such funds or letter
of credit, as applicable, shall be returned to the related Mortgage Loan Seller
and (y) thirty (30) Business Days after the Closing Date; provided, however,
that if such exception is not cured within such thirty (30) Business Days, (A)
in the case of clause (2), the Trustee or the Servicers shall retain the finds
of letter of credit, as applicable, or (BO in the case of clause (3), the
related Mortgage Loan Seller shall repurchase the related Mortgage Loan in
accordance with the terms and conditions of Section 2.03(b) or the related
Mortgage Loan Purchase Agreement, at which time such funds shall be applied to
the Purchase Price of the related Mortgage Loan.
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf shall review each of 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 certify in writing to each of the
Rating Agencies, the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder (provided it shall have identified itself, and
furnished to the Trustee a notice address for the delivery of such certificate)
and the Mortgage Loan Sellers that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full) and except as
specifically identified in any exception report annexed thereto (the "Trustee
Exception Report"), (i) all documents specified in clauses (i) through (v), (ix)
through (xii), (xv) 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 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 (iii) (other than zip
code), (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 Mortgage Loan Seller and separating items required to be in the Mortgage
File but never delivered from items which were delivered by the Mortgage Loan
Seller but are out for recording and have not been returned by the recorder's
office).
(c) 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), (xvii) and
(xviii) of the definition of "Mortgage File" exist or are required to be
delivered by the Depositor, the Mortgage Loan Sellers or any other Person 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.
(d) The Trustee shall deliver an updated Trustee Exception Report to
the Depositor, the Servicer, the Special Servicer and the applicable Mortgage
Loan Seller not later than 90 days after the Closing Date and every quarter
thereafter, commencing with the quarter ending June 30, 2002 until December 31,
2005 and upon request thereafter.
(e) 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), (ix) and (xi), resulting solely
from a delay in the return of the related documents from the applicable filing
or recording office, which deficiency (i) is continuing for (a) in the case of
any Mortgage Loan that is not a Specially Serviced Mortgage Loan, for more than
eighteen (18) months following the Closing Date or (b) in the case of any
Specially Serviced Mortgage Loan, ninety (90) 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, at which time the Trustee shall return such funds (or letter or credit)
to the related Mortgage Loan Seller or (ii) if such document deficiency has not
been cured by the date which is eighteen (18) months following the Closing Date
and 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. In the event described in clause (ii) of the immediately preceding
sentence, 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; beneficially owned by the Mortgage
Loan Seller for federal income tax purposes, who shall be taxable on all income
or gain with respect thereto.
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
(b) If any Certificateholder, the Servicer, the Special Servicer,
the Paying Agent or the Trustee discovers or receives notice of a Defect in any
Mortgage File or a breach of any representation or warranty with respect to a
Mortgage Loan set forth in, or required to be made with respect to a Mortgage
Loan by the applicable Mortgage Loan Seller pursuant to, the related Mortgage
Loan Purchase Agreement (a "Breach"), which Defect or Breach, as the case may
be, materially and adversely affects the value of 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 Paying
Agent or the Trustee, as applicable, shall give prompt written notice of such
Defect or Breach, as the case may be, to the Depositor, the Servicer, the
Special Servicer, the Mortgage Loan Sellers, the Paying Agent, the Trustee and
the Directing Certificateholder and, with respect to the Newport Mortgage Loan,
the Newport Representative, 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 Mortgage Loan Seller's discovery of such
Defect or Breach, (i) cure such Defect or Breach, as the case may be, in all
material respects, (ii) repurchase the affected Mortgage Loan (or related REO
Loan) at the applicable Purchase Price and in conformity with the applicable
Mortgage Loan Purchase Agreement, (iii) substitute a Qualified Substitute
Mortgage Loan for such affected Mortgage Loan (or related 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, or (iv)
at the sole discretion of the Directing Certificateholder (or with respect to
the Newport Mortgage Loan the Newport Representative in consultation with the
Directing Certificateholder), establish a cash reserve or provide a letter of
credit in an amount equal to 25% of the Stated Principal Balance of any Mortgage
Loan for which certain types of material Defects relating to delay in the return
of documents from local filing or recording offices remain uncorrected for 18
months following the Closing Date as provided in Section 2.02(e) and in
conformity with the applicable Mortgage Loan Purchase Agreement; provided,
however, that if such Breach or Defect is capable of being cured but not within
such 90-day period (such 90-day period, an "Initial Resolution Period"), and the
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such Breach or Defect within such 90-day period, the Mortgage Loan Seller shall
have (x) with respect to any such Breach, an additional 90 days to complete such
cure (or, failing such cure, to repurchase the related Mortgage Loan (or related
REO Loan) or substitute a Qualified Substitute Mortgage Loan) and (y) with
respect to any such Defect, the applicable Resolution Extension Period to
complete such cure (or, failing such cure, to repurchase the related Mortgage
Loan (or related REO Loan) or substitute a Qualified Substitute Mortgage Loan);
and provided, further, that with respect to such additional 90-day period or
Resolution Extension Period, as the case may be, the Mortgage Loan Seller shall
have delivered an officer's certificate to the Rating Agencies, the Servicer and
the Trustee and, with respect to the Newport Mortgage Loan, the Newport
Representative, setting forth the reason such Breach or Defect is not capable of
being cured within the initial time period and what actions the Mortgage Loan
Seller is pursuing in connection with the cure thereof and stating that the
Mortgage Loan Seller anticipates that such Breach or Defect will be cured within
the additional 90-day 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, without regard to the rule of
Treasury Regulations Section 1.860G-2(f)(2) which 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 above. If the affected Mortgage Loan (or related REO 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.
If a repurchase obligation arises for any Mortgage Loan, such
obligation shall extend to, and the related Mortgage Loan Seller shall
repurchase, any related Mortgage Loan cross-collateralized with the affected
Mortgage Loan; provided, that with respect to any Mortgage Loan (whether or not
cross-collateralized) the Mortgage Loan Seller shall not be required to
repurchase or substitute for the affected Mortgage Loan for which the repurchase
obligation has arisen, or all of the related cross-collateralized Mortgage
Loans, if the affected Mortgaged Property may be released pursuant to the terms
of any partial release provisions in the related Mortgage Loan documents and the
remaining Mortgaged Property(ies) satisfies the requirements, if any, set forth
in the Mortgage(s) for the Mortgaged Property(ies) remaining after application
of the partial release provisions or, in the alternative, at the sole discretion
of the Directing Certificateholder, if the credit of the remaining Mortgage
Loans comprising the pool of cross-collateralized Mortgage Loans shall be
acceptable; provided, however, that in connection with a partial release made
pursuant to the terms of the Mortgage Loan the related Mortgage Loan Seller
shall obtain 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, the Lower-Tier REMIC or the Loan REMIC created hereunder, endanger such
status or, unless such party determines in its sole discretion to indemnify the
Trust Fund against any resultant tax, result in the imposition of any tax.
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 that appears to be regular on its face, unless there is included in the
Mortgage File a certified copy of the Mortgage; (c) the absence from the
Mortgage File of the document required by clause (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; (e) the absence from the Mortgage File of
any required original letter of credit and assignment (or amendment) documents
transferring the beneficiary interest to the Trust or (f) the absence from the
Mortgage File of a copy of any related Ground Lease, if applicable.
(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, all portions of the Mortgage File and other
documents pertaining to such Mortgage Loan possessed by it, and each document
that constitutes a part of the Mortgage File 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 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 3 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, respecting 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 2 of each
of the Mortgage Loan Purchase Agreements.
(e) The Servicer and the Special Servicer (in the case of Specially
Serviced Mortgage Loans) shall, for the benefit of the Certificateholders and
the Trustee (as holder of the Uncertificated Lower-Tier Interests), enforce the
obligations of the applicable Mortgage Loan Seller under Section 3 of 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 Servicer or the Special
Servicer, as the case may be, would require were it, in its individual capacity,
the owner of the affected Mortgage Loan(s). The Servicer and the Special
Servicer, as the case may be, shall be reimbursed for the reasonable costs of
such enforcement: first, from a specific recovery of costs, expenses or
attorneys' fees against the applicable Mortgage Loan Seller; second, pursuant to
Section 3.05(a)(vii) 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) out of
general collections on the Mortgage Loans on deposit in the Certificate Account.
Section 2.04 Execution of Certificates; Creation of Loan REMIC
Regular Interests.
Concurrently with the assignment and in exchange for the Newport
Mortgage Loan, (a) the Trustee agrees to hold the Newport Mortgage Loan included
in the Loan REMIC, and (b) the Trustee acknowledges the issuance of the Loan
REMIC Senior Regular Interest, the Loan REMIC Subordinate Regular Interests and
the Loan REMIC Residual Interest to the Depositor. The interests evidenced by
the Loan REMIC Residual Interest, together with the Loan REMIC Senior Regular
Interest and the Loan REMIC Subordinate Regular Interests, constitute the entire
beneficial ownership of the Loan REMIC. The rights of the Holders of the Class
LR Certificates, as owners of the Loan REMIC Residual Interest, and the rights
of the Lower-Tier REMIC (as holder of the Loan REMIC Senior Regular Interest and
Loan REMIC Subordinate Regular Interests) to receive distributions from the
proceeds of the Loan REMIC in respect of the Loan REMIC Residual Interest and
the Loan REMIC Regular Interests shall be as set forth in this Agreement.
Section 2.05 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.
The Trustee hereby acknowledges the assignment to it of the Majority
Mortgage Loans and the Loan REMIC Regular Interests 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 other assets
included in the Trust Fund. Concurrently with such assignment and delivery and
in exchange therefor, the Trustee (i) acknowledges the issuance of the
Uncertificated Lower-Tier Interests to the Depositor, (ii) acknowledges the
authentication and delivery of the Class LR Certificates (in respect of the
residual interest in the Lower-Tier REMIC) to or upon the order of the
Depositor, in exchange for the Majority Mortgage Loans (other than Excess
Interest) and the Loan REMIC Regular Interests, 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,
the Class NC Certificates 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.
[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) Each of the Servicer and the Special Servicer shall diligently
service and administer the Mortgage 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 the Trustee (as holder of the
Uncertificated Lower-Tier Interests and the Loan REMIC Interests) (as determined
by the Servicer or the Special Servicer, as the case may be, in its reasonable
judgment) in accordance with applicable law, the terms of this Agreement and the
terms of the respective Mortgage Loans, to the extent consistent with the
foregoing, 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 Servicer or Special Servicer, as the case may be,
services and administers similar mortgage loans for other third-party
portfolios, giving due consideration to the customary and usual standards of
practice of prudent institutional, multifamily and commercial mortgage loan
servicers servicing mortgage loans for third parties and (2) the same care,
skill, prudence and diligence with which the Servicer or the Special Servicer,
as the case may be, services and administers similar mortgage loans owned by the
Servicer or the Special Servicer, as the case may be, with a view to the
maximization of timely recovery of principal and interest on a net present value
basis on the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable,
and the best interests of the Trust and the Certificateholders, as determined by
the Servicer or the Special Servicer, as the case may be, in its reasonable
judgment, but without regard to: (i) any relationship that the Servicer, the
Special Servicer or any Affiliate of the Servicer or the Special Servicer may
have with any Mortgagor, any Mortgage Loan Seller, or any other parties to this
Agreement; (ii) the ownership of any Certificate by the Servicer, the Special
Servicer or any Affiliate of the Servicer or Special Servicer, as applicable;
(iii) the Servicer's obligation to make Advances; (iv) the Servicer's or Special
Servicer's, as the case may be, right to receive compensation for its services
and reimbursement for its costs hereunder or with respect to any particular
transaction; (v) the ownership, servicing or management for others of any other
mortgage loans or mortgaged properties by the Servicer or Special Servicer; (vi)
any obligation of the Servicer or any of its affiliates (in their capacity as a
Mortgage Loan Seller) to cure a breach of a representation or warranty or
repurchase the Mortgage Loan and (vii) any other debt the Servicer, the Special
Servicer or any of their Affiliates has extended to any Borrower or any
affiliate of such Borrower (the foregoing, collectively referred to as the
"Servicing Standards"). Without limiting the foregoing, subject to Section 3.21,
the Special Servicer shall be obligated to service and administer (i) any
Mortgage 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 incidental services with respect to such Specially Serviced Mortgage Loans
and REO Properties as are specifically provided for herein; provided, further,
however, that the Servicer shall not be liable for failure to comply with such
duties insofar as such failure results from a failure of the Special Servicer to
provide sufficient information to the Servicer to comply with such duties or
failure by the Special Servicer to otherwise comply with its obligations
hereunder. Each Mortgage Loan 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 which are not
Specially Serviced Mortgage Loans; provided, that the Special Servicer shall
make the inspections, use its reasonable efforts to collect the statements and
shall prepare the reports in respect of the related Mortgaged Properties with
respect to Specially Serviced Mortgage Loans in accordance with Section 3.12.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and applicable law, the Servicer
and the Special Servicer each shall have full power and authority, acting alone,
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, is hereby authorized and
empowered by the Trustee and obligated to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, with respect to each Mortgage
Loan 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 or with respect to any documents contained in the
related Mortgage File; and (iii) any and all instruments of satisfaction or
cancellation, 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.
(c) To the extent the Servicer is permitted pursuant to the terms of
the related Mortgage Loan documents to exercise its discretion with respect to
any action which requires a confirmation of the Rating Agencies that such action
will not result in the downgrade, withdrawal or qualification of the ratings of
any Class of Certificates, the Servicer shall require the costs of such written
confirmation to be borne by the related Mortgagor. To the extent the terms of
the related Mortgage Loan documents require the Mortgagor to bear the costs of
any confirmation of the Rating Agencies that an action will not result in the
downgrade, withdrawal or qualification of the ratings of any Class of
Certificates, the Servicer shall not waive the requirement that such costs and
expenses be borne by the related Mortgagor.
(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 consistent with the Servicing Standards, permit
Escrow Payments to be invested only in Permitted Investments.
(f) Within 30 days after the Closing Date, the Servicer shall notify
(i) each provider of a letter of credit for each Mortgage Loan identified as
having a letter of credit on the Mortgage Loan Schedule, that the 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
(ii) each lessor under a Ground Lease for each Mortgage Loan identified as
subject to a leasehold interest on the Mortgage Loan Schedule, that the Servicer
or the Special Servicer shall service such Mortgage Loan for the benefit of the
Certificateholders.
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 it is obligated to service hereunder, and shall
follow such collection procedures as are consistent with this Agreement
(including, without limitation, the Servicing Standards), provided, that with
respect to the Mortgage Loans that have Anticipated Repayment Dates, so long as
the related Mortgagor is in compliance with each provision of the related
Mortgage Loan documents, the Servicer and Special Servicer, shall not take any
enforcement action with respect to the failure of the related Mortgagor to make
any payment of Excess Interest, other than requests for collection, until the
maturity date of the related Mortgage Loan or the outstanding principal balance
of such Mortgage Loan has been paid in full; provided, that the Servicer or
Special Servicer, as the case may be, may take action to enforce the Trust
Fund's right to apply excess cash flow to principal in accordance with the terms
of the Mortgage Loan documents. Consistent with the foregoing, the Servicer, or
the Special Servicer each may in its discretion waive any Penalty Charge in
connection with any delinquent payment on a Mortgage Loan it is obligated to
service hereunder.
(b) All amounts collected on any Mortgage 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, in the absence of such express provisions, shall
be applied (after reimbursement to the Servicer and/or the Trustee for any
related Servicing Advances and interest thereon as provided herein): first, as a
recovery of accrued and unpaid interest on such Mortgage 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; second, as a recovery of principal of such Mortgage
Loan then due and owing; third, in accordance with the Servicing Standards, as a
recovery of any other amounts due and owing on such Mortgage Loan, including,
without limitation, Penalty Charges, Yield Maintenance Charges and Excess
Interest and fourth, as a recovery of principal of such Mortgage Loan 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 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 applicable law, the Servicer shall apply all Insurance and Condemnation
Proceeds it receives on a day other than the Due Date to amounts due and owing
under the related Mortgage Loan as if such Insurance and Condemnation Proceeds
were received on the Due Date immediately succeeding the month in which such
Insurance and Condemnation Proceeds were received.
(d) In the event that the Servicer or Special Servicer receives
Excess Interest in any Due Period, or receives notice from the related Mortgagor
that the Servicer or Special Servicer will be receiving Excess Interest in any
Due Period, the Servicer or Special Servicer, as applicable, will promptly
notify the Paying Agent. Subject to the provisions of Section 3.02(a) hereof,
none of the Servicer, the Special Servicer or the Paying Agent shall be
responsible for any such Excess Interest not collected after notice from the
related Mortgagor.
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. 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 Servicer or the Trustee 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 and as described below or, if not so
required, to the Servicer; (v) withdraw amounts deposited in error or (vi) clear
and terminate the Servicing Account at the termination of this Agreement in
accordance with Section 9.01. As part of its servicing duties, the Servicer
shall pay or cause to be paid to the Mortgagors interest on funds in Servicing
Accounts, to the extent required by law or the terms of the related Mortgage
Loan; provided, however, that in no event shall the Servicer be required to
remit to any Mortgagor any amounts in excess of actual net investment income or
funds in the related Servicing Account.
(b) The Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage Loans, 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, shall use reasonable efforts
consistent with the Servicing Standard to obtain, from time to time, all bills
for the payment of such items (including renewal premiums) and 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. The Servicer or, with respect to
any Mortgage Loan that is a Specially Serviced Mortgage Loan, the Special
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 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, shall use reasonable
efforts consistent with the Servicing Standard to enforce the requirement of the
related Mortgage that the Mortgagor make payments in respect of such items at
the time they first become due and, in any event, prior to the institution of
foreclosure or similar proceedings with respect to the related Mortgaged
Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans, the Servicer shall advance with respect to each related Mortgaged
Property (including any REO Property) all such funds as are necessary for the
purpose of effecting the payment of (i) real estate taxes, assessments and other
similar items that are or may become a lien thereon, (ii) ground rents (if
applicable) and (iii) premiums on Insurance Policies, in each instance if and to
the extent Escrow Payments collected from the related Mortgagor (or related REO
Revenues, if applicable) are insufficient to pay such item when due and the
related Mortgagor has failed to pay such item on a timely basis, and provided,
however, that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance and provided, further, however, that with
respect to the payment of taxes and assessments, the Servicer shall not be
required to make such advance until the later of five Business Days after the
Servicer 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 and the Trustee no less than five Business
Days' written (facsimile) notice before the date on which the Servicer is
requested to make any Servicing Advance with respect to a given Mortgage Loan or
REO Property; provided, however, that only two Business Day's 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). The Servicer may pay the aggregate amount of such Servicing
Advances listed on a monthly request to the Special Servicer, in which case the
Special Servicer shall remit such Servicing Advances to the ultimate payees. In
addition, the Special Servicer shall provide the Servicer and the Trustee with
such information in its possession as the Servicer or the Trustee, as
applicable, may reasonably request to enable the Servicer or the Trustee, as
applicable, to determine whether a requested Servicing Advance would constitute
a Nonrecoverable Advance. Any request by the Special Servicer that the Servicer
make a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing
Advance, and the Servicer shall be entitled to conclusively rely on such
determination, provided that such determination shall not be binding upon the
Servicer. On the fourth Business Day before each Distribution Date, the Special
Servicer shall report to the Servicer the Special Servicer's determination as to
whether any Servicing Advance previously made with respect to a Specially
Serviced Mortgage Loan or REO Loan is a Nonrecoverable Servicing Advance. The
Servicer shall be entitled to conclusively rely on such a determination,
provided that such determination shall not be binding upon the Servicer. All
such Advances shall be reimbursable in the first instance from related
collections from the Mortgagors and further as provided in Section 3.05. No
costs incurred by the Servicer or the Special Servicer in effecting the payment
of real estate taxes, assessments and, if applicable, ground rents on or in
respect of the Mortgaged Properties shall, for purposes hereof, including,
without limitation, the Paying Agent's calculation of monthly distributions to
Certificateholders, be added to the unpaid principal balances of the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so permit.
The failure by the Servicer to make any required Servicing Advance as and when
due shall constitute an Event of Default under Section 7.01(a)(iii) and, to the
extent the Trustee has actual knowledge of such failure, the Trustee shall make
such Servicing Advance pursuant to Section 7.05. Notwithstanding anything herein
to the contrary, no Servicing Advance shall be required hereunder if such
Servicing Advance would, if made, constitute a Nonrecoverable Servicing Advance.
(d) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a), each of the Servicer and
the Trustee, 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, 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, in accordance
with the Servicing Standards, determine whether the related Mortgagor has failed
to perform its obligations under the related Mortgage Loan and report any such
failure to the Special Servicer within a reasonable time after the later of July
15, 2002 and the date as of which such actions or remediations are required to
be or to have been taken or completed.
Section 3.04 The Certificate Account, the Newport Collection
Account, the Loan REMIC, the Lower-Tier and Upper-Tier Distribution Accounts,
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 and the Newport Collection
Account (which may be a sub-account of the Certificate Account) in which the
Servicer shall deposit or cause to be deposited on a daily basis (and in no
event later than the Business Day following receipt of available funds), except
as otherwise specifically provided herein, the following payments and
collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal and interest on the Mortgage Loans 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;
(ii) all payments on account of interest on the Mortgage Loans (net
of the Servicing Fees), including Excess Interest, Yield Maintenance
Charges and Penalty Charges;
(iii) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of any
Mortgage Loan or REO Property (other than Liquidation Proceeds that are
received in connection with the purchase by the Servicer, the Special
Servicer, the Holders of the Controlling Class, or the Holders of the
Class LR Certificates of all the Mortgage Loans and any REO Properties in
the Trust Fund and that are to be deposited in the Lower-Tier Distribution
Account (or, in respect of the Newport Mortgage Loan, the Loan REMIC
Distribution Account) pursuant to Section 9.01);
(iv) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(v) 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
(vi) 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;
provided, however, the Servicer shall deposit or cause to be deposited any
payments described in the preceding sentence collected or received with respect
to the Newport Mortgage Loan (or any REO Property related thereto) in the
Newport Collection Account.
The foregoing requirements for deposit in the Certificate Account
and the Newport Collection Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, actual payments
from Mortgagors in the nature of Escrow Payments, charges for beneficiary
statements or demands, assumption fees, modification fees, extension fees or
amounts collected for Mortgagor checks returned for insufficient funds need not
be deposited by the Servicer in the Certificate Account or, if applicable, the
Newport Collection Account. If the Servicer shall deposit in the Certificate
Account or Newport Collection Account, as applicable, any amount not required to
be deposited therein, it may at any time withdraw such amount from the
Certificate Account or Newport Collection Account, any provision herein to the
contrary notwithstanding. Assumption, extension and modification fees actually
received from Mortgagors on Mortgage Loans or Specially Serviced Mortgage Loans
shall be promptly delivered to the Special Servicer as additional servicing
compensation, but only to the extent the payment of such fees to the Special
Servicer is in accordance with the second paragraph of Section 3.11(b) and any
other terms hereof.
Upon receipt of any of the foregoing amounts in clauses (i)-(iii)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within 1 Business Day such amounts to the Servicer for
deposit into the Certificate Account or, if applicable, the Newport Collection
Account, in accordance with the first two paragraphs of the 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 or, if applicable, the
Newport Collection 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.
Funds in the Certificate Account or Newport Collection 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 and the Newport
Collection Account shall be located at the offices of the Pittsburgh,
Pennsylvania, branch of PNC Bank, National Association. The Servicer shall give
notice to the Trustee, the Special Servicer and the Depositor of the new
location of the Certificate Account or Newport Collection Account prior to any
change thereof.
(b) The Paying Agent, on behalf of the Trustee for the benefit of
the Certificateholders and the Trustee (as holder of the Loan REMIC Regular
Interests and Uncertificated Lower-Tier Interests), shall establish and maintain
the Loan REMIC Distribution Account, 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 Loan REMIC
Regular Interests and the Uncertificated Lower-Tier Interests). The Trustee
hereby authorizes the Paying Agent to make deposits in and withdrawals from the
Distribution Accounts in accordance with the terms of this Agreement. The
Servicer shall deliver to the Paying Agent each month on or before the P&I
Advance Date therein, (i) for deposit in the Loan REMIC Distribution Account,
that portion of the Newport Available Distribution Amount attributable to the
Newport Senior Component and the Newport Subordinate Components and (ii) for
deposit in the Lower-Tier Distribution Account, that portion of the Available
Distribution Amount attributable to the Majority Mortgage Loans (in each case,
calculated without regard to clause (a)(iv), (a)(vii) and (c) and (d) of the
definition thereof) for the related Distribution Date then on deposit in the
Certificate Account.
The Loan REMIC Distribution Account, the Lower-Tier Distribution
Account and the Upper-Tier Distribution Account may be subaccounts of a single
account, which shall be maintained as a segregated account separate from other
accounts. The Excess Interest Distribution Account, Gain-on-Sale Reserve Account
and the Interest Reserve Account shall be maintained as segregated accounts
separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account (or the Loan REMIC Distribution Account in the
case of the Newport Mortgage Loan) pursuant to the second preceding paragraph,
the Servicer shall, as and when required hereunder, deliver to the Paying Agent
for deposit in the Lower-Tier Distribution Account (or the Loan REMIC
Distribution Account in the case of the Newport Mortgage Loan):
(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 (or the Loan REMIC Distribution Account in
the case of the Newport Mortgage Loan) pursuant to any provision of this
Agreement.
If, as of the close of business (New York time), on any P&I Advance
Date or on such other date as any amount referred to in the foregoing clauses
(i) through (v) are required to be delivered hereunder, the Servicer shall not
have delivered to the Paying Agent for deposit in the Loan REMIC Distribution
Account, the Lower-Tier Distribution Account and the Excess Interest
Distribution Account the amounts required to be deposited therein pursuant to
the provisions of this Agreement (including any P&I Advance pursuant to Section
4.03(a) hereof), the Servicer shall pay the Paying Agent interest on such late
payment at the Prime Rate from the time such payment was required to be made
(without regards to any grace period) until such late payment is received by the
Paying Agent.
The Paying Agent shall, upon receipt, deposit in the Loan REMIC
Distribution Account or the Lower-Tier Distribution Account any and all amounts
received by the Paying Agent that are required by the terms of this Agreement to
be deposited therein. In the event the Trustee receives any amounts required to
be remitted to the Paying Agent, the Loan REMIC Distribution Account or the
Lower-Tier Distribution Account pursuant to the terms hereof, the Trustee shall
remit such amounts as soon as possible, but in no event later than one Business
Day following receipt. The Trustee shall remit to the Paying Agent for deposit
in the Lower-Tier Distribution Account (or the Loan REMIC Distribution Account
in the case of the Newport Mortgage Loan) any P&I Advances required to be made
by it in accordance with Section 7.05.
Promptly on each Distribution Date, the Paying Agent shall (i)
withdraw from the Loan REMIC Distribution Account and deposit in the Lower-Tier
Distribution Account an aggregate amount of immediately available funds equal to
the Newport Available Distribution Amount distributable pursuant to Section
4.01(j)(i)-(ix) and Yield Maintenance Charges for such Distribution Date in
respect of the Newport Mortgage Loan distributable pursuant to Section 4.01(d)
and (ii) withdraw from the Lower-Tier Distribution Account and deposit in the
Upper-Tier Distribution Account an aggregate amount of immediately available
funds equal to the Lower-Tier Distribution Amount and the amount of any 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 Certificate Account and the Newport
Collection Account may only be invested in Permitted Investments in accordance
with the provisions of Section 3.06. Funds on deposit in the Gain-On-Sale
Reserve Account, Interest Reserve Account, the Excess Interest Distribution
Account, the Upper-Tier Distribution Account, the Lower-Tier Distribution
Account and the Loan REMIC Distribution Account shall be held uninvested. As of
the Closing Date, the Excess Interest Distribution Account, the Interest Reserve
Account, the Upper-Tier Distribution Account, the Lower-Tier Distribution
Account and the Loan REMIC Distribution Account shall be located at the offices
of the Paying Agent. The Paying Agent shall give notice to the Trustee, the
Servicer and the Depositor of the location of the accounts set forth in the
preceding sentence and of the new location of such accounts prior to any change
thereof.
(c) Prior to any Due Period during which Excess Interest is
received, and upon notification from the Servicer or Special Servicer pursuant
to Section 3.02(d), the Paying Agent, on behalf of the Certificateholders shall
establish and maintain the Excess Interest Distribution Account in the name of
the Paying Agent in trust for the benefit of the Class S Certificateholders. The
Excess Interest Distribution Account shall be established and maintained as an
Eligible Account. Prior to the applicable Distribution Date, the Servicer shall
remit to the Paying Agent for deposit in the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the applicable
Due Period.
Following the distribution of Excess Interest to Class S
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Paying Agent shall terminate the Excess Interest
Distribution Account.
The Paying Agent shall establish (upon notice from Special Servicer
of an event occurring that generates Gain-on-Sale Proceeds) and maintain the
Gain-on-Sale Reserve Account in trust for the benefit of the Certificateholders.
The Gain-on-Sale Reserve Account shall be maintained as a segregated account,
separate and apart from trust funds for mortgage pass-through certificates of
other series administered by the Paying Agent and other accounts of the Paying
Agent. Funds in the Gain-on-Sale Reserve Account shall be held uninvested.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Paying Agent for deposit into the Gain-on-Sale Reserve Account; provided,
that any Gain-on-Sale Proceeds with respect to the Newport Mortgage Loan shall
be deemed to be distributed by the Loan REMIC in respect of the Loan REMIC
Residual Interest and then deposited in the Gain-on-Sale Reserve Account held by
the Lower-Tier REMIC Account to cover losses or shortfalls on the Majority
Mortgage Loans in accordance with Section 4.01(e).
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Newport Collection Account and the Distribution Accounts.
(a) The Servicer may, from time to time, make withdrawals from the
Certificate Account, or with respect to the Newport Mortgage Loan, the Newport
Collection Account, for any of the following purposes:
(i) no later than 12:00 noon on each P&I Advance Date, to remit to
the Paying Agent for deposit in the Loan REMIC Distribution Account, the
Lower-Tier Distribution Account and the Excess Interest Distribution
Account the amounts required to be remitted pursuant to Section 3.04(b)
and Section 3.04(c) or that may be applied to make P&I Advances pursuant
to Section 4.03(a);
(ii) to pay (A) itself unpaid Servicing Fees and the Special
Servicer unpaid Special Servicing Fees, Liquidation Fees and Workout Fees
in respect of each Mortgage Loan, Specially Serviced Mortgage Loan and REO
Loan, as applicable, the Servicer's or Special Servicer's, as applicable,
rights to payment of Servicing Fees and Special Servicing Fees,
Liquidation Fees and Workout Fees pursuant to this clause (ii)(A) with
respect to any Mortgage Loan, Specially Serviced Mortgage Loan or REO
Loan, as applicable, being limited to amounts received on or in respect of
such Mortgage 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 in respect of
each Specially Serviced Mortgage Loan or REO Loan, as applicable,
remaining unpaid out of general collections on the Mortgage Loans and REO
Properties;
(iii) to reimburse the Trustee and itself, as applicable (in that
order), for xxxxxxxxxxxx X&X Advances, the Servicer's or the Trustee's
right to reimbursement pursuant to this clause (iii) being limited to
amounts received which represent Late Collections of interest (net of the
related Servicing Fees) on and principal of the particular Mortgage Loans
and REO Loans with respect to which such P&I Advances were made;
(iv) to reimburse the Trustee and itself, as applicable (in that
order), for unreimbursed Servicing Advances, the Servicer's, or the
Trustee's respective rights to receive payment pursuant to this clause
(iv) with respect to any Mortgage Loan or REO Property being limited to,
as applicable, related payments, Liquidation Proceeds, Insurance and
Condemnation Proceeds and REO Revenues;
(v) to reimburse the Trustee and itself, as applicable (in that
order), for Nonrecoverable Advances out of general collections on the
Mortgage Loans and REO Properties or to pay itself, with respect to any
Mortgage Loan or REO Property any related earned Servicing Fee that
remained unpaid in accordance with clause (ii) above following a Final
Recovery Determination made with respect to such Mortgage Loan or REO
Property and the deposit into the Certificate Account of all amounts
received in connection therewith;
(vi) at such time as it reimburses the Trustee and itself, as
applicable (in that order), for (a) any xxxxxxxxxxxx X&X Advance pursuant
to clause (iii) above, to pay itself or the Trustee, as applicable, any
interest accrued and payable thereon in accordance with Sections 4.03(d)
and 3.11(c), (b) any unreimbursed Servicing Advances pursuant to clause
(iv) above, to pay itself 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 or the Trustee, as the case may be, any interest accrued and
payable thereon;
(vii) to reimburse itself, the Special Servicer, the Depositor or
the Trustee, as the case may be, for any unreimbursed expenses reasonably
incurred by such Person in respect of any Breach or Defect giving rise to
a repurchase or substitution obligation of the applicable Mortgage Loan
Seller under Section 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 being limited to that portion of the Purchase Price or Substitution
Shortfall Amount paid with respect to such Mortgage 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, 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;
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) out of general collections on the Mortgage
Loans and REO Properties;
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) (A) interest and investment income
earned in respect of amounts relating to the Trust Fund held in the
Certificate Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to the Certificate Account for
the period from the prior P&I Advance Date to the P&I Advance Date related
to such Distribution Date) and (B) Penalty Charges on Mortgage Loans
(other than Specially Serviced Mortgage Loans), but only to the extent
collected from the related Mortgagor and to the extent that all amounts
then due and payable with respect to the related Mortgage Loan have been
paid and are not needed to pay interest on Advances or costs and expenses
incurred by the Trust Fund in accordance with Section 3.11(c); and (b) to
pay the Special Servicer, as additional servicing compensation in
accordance with the second paragraph of Section 3.11(b), Penalty Charges
on Specially Serviced Mortgage Loans (but only to the extent collected
from the related Mortgagor and to the extent that all amounts then due and
payable with respect to the related Specially Serviced Mortgage Loan have
been paid and are not needed to pay interest on 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, 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, the Loan REMIC or any of their
assets or transactions, together with all incidental costs and expenses,
to the extent that none of the Servicer, the Special Servicer, the Paying
Agent or the Trustee is liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Paying Agent out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay itself, the Special Servicer or 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;
(xvii) to remit to the Paying Agent for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest
Reserve Account pursuant to Section 3.25; and
(xviii) to pay or remit any other amounts specifically required
under the terms of this Agreement and to clear and terminate the
Certificate Account at the termination of this Agreement pursuant to
Section 9.01.
Any amounts specified in clauses (ii)-(xviii) above which do not
relate to a specific Mortgage Loan, but rather payable from general collections
on the Mortgage Loans and REO Properties shall be withdrawn from the Newport
Collection Account and the Certificate Account, pro rata, based on the amounts
contained therein. 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 and the
Newport Collection Account.
The Servicer shall pay to the Special Servicer or the Paying Agent
from the Certificate Account (or the Newport Collection Account, as applicable)
amounts permitted to be paid to it therefrom promptly upon receipt of a
certificate of a responsible officer of the Special Servicer or the Paying Agent
describing the item and amount to which the Special Servicer or the Paying Agent
is entitled. The Servicer may rely conclusively on any such certificate and
shall have no duty to re-calculate the amounts stated therein. The Special
Servicer shall keep and maintain separate accounting for each Specially Serviced
Mortgage Loan and REO Loan, on a loan-by-loan and property-by-property basis,
for the purpose of justifying any request for withdrawal from the Certificate
Account (or the Newport Collection Account, as applicable).
(b) The Paying Agent, on behalf of the Trustee, may, from time to
time, make withdrawals from the Loan REMIC Distribution Account for any of the
following purposes:
(i) to make deposits to the Lower-Tier Distribution Account and
distributions in respect of the Class LR Certificates pursuant to Section
4.01(j) and to make deposits in respect of Yield Maintenance Charges in
respect of the Newport Mortgage Loan to the Lower-Tier Distribution
Account pursuant to Section 4.01(d);
(ii) [Intentionally Omitted]
(iii) with respect to the Newport Mortgage Loan, to pay to the
Trustee and the Paying Agent or any of its directors, officers, employees
and agents, as the case may be, any amounts payable or reimbursable to any
such Person pursuant to Section 8.05(b);
(iv) with respect to the Newport Mortgage Loan, to pay the Trustee
and the Paying Agent their respective portions of the Trustee Fee as
contemplated by Section 8.05(a) hereof;
(v) with respect to the Newport Mortgage Loan, to pay for the cost
of the Opinions of Counsel sought by the Trustee or the Paying Agent (A)
as provided in clause (v) of the definition of "Disqualified
Organization", (B) as contemplated by Section 3.20(d), 9.02(a)(i) and
10.01(h), or (C) as contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the Trustee
or the Paying Agent which amendment is in furtherance of the rights and
interests of Certificateholders, in each case, to the extent not paid
pursuant to Section 4.01(j);
(vi) to pay any and all Federal, state and local taxes imposed on
the Loan REMIC or on the assets or transactions of such REMIC, together
with all incidental costs and expenses except to the extent the Paying
Agent is liable therefore pursuant to Section 10.01(g); provided that, to
the extent any of the Trustee, the REMIC Administrator, the Servicer or
the Special Servicer is liable therefor pursuant to Section 10.01(g), such
payment shall not prejudice the rights of the Paying Agent on behalf of
the Loan REMIC to collect such amounts.
(vii) with respect to the Newport Mortgage Loan, to pay the REMIC
Administrator any amounts reimbursable to it pursuant to Section 10.01(e);
(viii) to pay to the Servicer any amounts deposited by the Servicer
in the Loan REMIC Distribution Account not required to be deposited
therein; and
(ix) to clear and terminate the Loan REMIC Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Paying Agent, on behalf of the Trustee, may, from time to
time, make withdrawals from the Lower-Tier Distribution Account for any of the
following purposes:
(i) to make deposits of the Lower-Tier 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) [Intentionally Omitted];
(iii) [Intentionally Omitted];
(iv) to pay to the Trustee and the Paying Agent or any of its
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Section 8.05(b);
(v) to pay the Trustee and the Paying Agent their respective
portions of the Trustee Fee as contemplated by Section 8.05(a) hereof with
respect to the Mortgage Loans;
(vi) to pay for the cost of the Opinions of Counsel sought by the
Trustee or the Paying Agent (A) as provided in clause (v) of the
definition of "Disqualified Organization", (B) as contemplated by Section
3.20(d), 9.02(a)(i) and 10.01(h), or (C) as contemplated by Section
11.01(a) or 11.01(c) in connection with any amendment to this Agreement
requested by the Trustee or the Paying Agent which amendment is in
furtherance of the rights and interests of Certificateholders, in each
case, to the extent not paid pursuant to Section 4.01(j);
(vii) to pay any and all federal, state and local taxes imposed on
the Lower-Tier REMIC or the Upper-Tier REMICs or on the assets or
transactions of either such REMIC, together with all incidental costs and
expenses, to the extent none of the Trustee, the Paying Agent, the REMIC
Administrator, the Servicer or the Special Servicer is liable therefor
pursuant to Section 10.01(i);
(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.
(d) The Paying Agent shall, on any Distribution Date, make
withdrawals from the Excess Interest Distribution Account to the extent required
to make the distributions of Excess Interest required by Section 4.01(i).
(e) The Paying Agent, on behalf of the Trustee, may make withdrawals
from the Upper-Tier Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class S and Class LR Certificates) on each Distribution Date
pursuant to Section 4.01 or 9.01, as applicable;
(ii) [Intentionally Omitted]; and
(iii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(f) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in the Certificate Account, the
Newport Collection Account, the Loan REMIC Distribution Account and the
Lower-Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee and the Paying
Agent Fee listed in Section 3.05(b)(iv) or (c)(v), then the Trustee Fee and the
Paying Agent Fee shall be paid in full prior to the payment of any Servicing
Fees payable under Section 3.05(a)(ii) and in the event that amounts on deposit
in the Certificate Account, the Newport Collection Account, the Loan REMIC
Distribution Account and the Lower-Tier Distribution Account are not sufficient
to pay the full amount of such Trustee Fee and such Paying Agent Fee, the
Trustee and the Paying Agent shall be paid pro rata and (ii) if amounts on
deposit in the Certificate Account or the Newport Collection Account are not
sufficient to reimburse the full amount of Advances and interest thereon listed
in Sections 3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid
first to the Trustee and second to the Servicer.
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, the Newport Collection Account or any Servicing Account
(for purposes of this Section 3.06, an "Investment Account") and the Special
Servicer may direct any depository institution maintaining the REO Account (also
for purpose of this Section 3.06, an "Investment Account") to invest, or if it
is such depository institution, may itself invest, the funds held therein only
in one or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, (i) no later than the Business Day
immediately preceding the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if a Person other
than the depository institution maintaining such account is the obligor thereon
and (ii) no later than the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if the depository institution
maintaining such account is the obligor thereon. All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment of funds in
an Investment Account shall be made in the name of the Trustee (in its capacity
as such). The Servicer (in the case of the Certificate Account or the Newport
Collection Account or any Servicing Account) or the Special Servicer (in the
case of the REO Account), on behalf of the Trustee, shall maintain continuous
physical possession of any Permitted Investment of amounts in the Certificate
Account, the Newport Collection Account, the Servicing Accounts or REO Account
that is either (i) a "certificated security," as such term is defined in the UCC
(such that the Trustee shall have control pursuant to Section 8-106 of the UCC)
or (ii) other property in which a secured party may perfect its security
interest by physical possession under the UCC or any other applicable law. Funds
on deposit in the Distribution Accounts, if any, shall remain uninvested. In the
case of any Permitted Investment held in the form of a "security entitlement"
(within the meaning of Section 8-102(a)(17) of the UCC), the Servicer or the
Special Servicer, as applicable, shall take or cause to be taken such action as
the Trustee deems reasonably necessary to cause the Trustee to have control over
such security entitlement. In the event amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the Servicer (in the case of the Certificate Account, Newport Collection Account
or any Servicing Account) or the Special Servicer (in the case of the REO
Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Servicer or the Special Servicer, as the case may be,
that such Permitted Investment would not constitute a Permitted Investment
in respect of funds thereafter on deposit in the Investment Account.
(b) Interest and investment income realized on funds deposited in
the Certificate Account, Newport Collection Account or any Servicing Account, to
the extent of the Net Investment Earnings, if any, with respect to such account
for the period from the prior P&I Advance Date to the P&I Advance Date related
to such Distribution Date, shall be for the sole and exclusive benefit of the
Servicer to the extent not required to be paid to the related Mortgagor and
shall be subject to its withdrawal, or withdrawal at its direction, in
accordance with Sections 3.03 or Section 3.05(a), as the case may be. Interest
and investment income realized on funds deposited in the REO Account, to the
extent of the Net Investment Earnings, if any, with respect to such account for
each period from any Distribution Date to the immediately succeeding P&I Advance
Date, shall be for the sole and exclusive benefit of the Special Servicer and
shall be subject to its withdrawal in accordance with Section 3.16(c). In the
event that any loss shall be incurred in respect of any Permitted Investment
directed to be made by the Servicer or Special Servicer, as applicable, and on
deposit in any of the Certificate Account, Newport Collection Account, any
Servicing Account or the REO Account, the Servicer (in the case of the
Certificate Account, Newport Collection Account or any Servicing Account) and
the Special Servicer (in the case of the REO Account) shall deposit therein, no
later than the P&I Advance Date, without right of reimbursement, the amount of
Net Investment Loss, if any, with respect to such account for the period from
the prior P&I Advance Date to the P&I Advance Date related to such Distribution
Date, provided, that neither the Servicer nor the Special Servicer shall be
required to deposit any loss on an investment of funds in an Investment Account
if such loss is incurred solely as a result of the insolvency of the federal or
state chartered depository institution or trust company that holds such
Investment Account, so long as such depository institution or trust company was
not an affiliate of the Servicer or Special Servicer, as applicable, and
satisfied the qualifications set forth in the definition of Eligible Account at
the time such investment was made.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to a majority of the Voting Rights allocated to
any Class shall, take such action as may be appropriate to enforce such payment
or performance, including the institution and prosecution of appropriate
proceedings.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) The Servicer shall use its reasonable efforts 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 all insurance coverage as is required under the related
Mortgage (to the extent that the Trustee has an insurable interest and such
insurance coverage is available at commercially reasonable rates, consistent
with the Servicing Standards); provided, however, that if any Mortgage permits
the holder thereof to dictate to the Mortgagor the insurance coverage to be
maintained on such Mortgaged Property, the Servicer shall impose such insurance
requirements as are consistent with the Servicing Standards. 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. 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 (except 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 or REO Loan, as applicable, and in any event, the amount
necessary to avoid the operation of any co-insurance provisions, (iv) include a
replacement cost endorsement providing no deduction for depreciation (unless
such endorsement is not permitted under the related Mortgage Loan documents),
(v) be noncancellable without 30 days prior written notice to the insured party
(except in the case of nonpayment, in which case such policy shall not be
cancelled without 10 days prior notice) and (vi) be issued by a Qualified
Insurer authorized under applicable law to issue such Insurance Policies. Any
amounts collected by the Servicer or the Special Servicer under any such
Insurance Policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case in accordance with the Servicing
Standards and the provisions of the related Mortgage Loan) shall be deposited in
the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any
costs incurred by the Servicer in maintaining any such Insurance Policies in
respect of Mortgage Loans (other than REO Properties) (i) if the Mortgagor
defaults on its obligation to do so, shall be advanced by the Servicer as a
Servicing Advance and will be charged to the related Mortgagor and (ii) shall
not, for purposes of calculating monthly distributions to Certificateholders, be
added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan 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.
(b) (i) If the Servicer or the Special Servicer shall obtain and
maintain a blanket Insurance Policy with a Qualified Insurer insuring against
fire and hazard losses on all of the Mortgage Loans or REO Properties, as the
case may be, required to be serviced and administered hereunder, then, to the
extent such Insurance Policy provides protection equivalent to the individual
policies otherwise required, the Servicer or the Special Servicer shall
conclusively be deemed to have satisfied its obligation to cause fire and hazard
insurance to be maintained on the related Mortgaged Properties or REO
Properties. Such Insurance Policy may contain a deductible clause, in which case
the Servicer or the Special Servicer shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property a fire and hazard
Insurance Policy complying with the requirements of Section 3.07(a), and there
shall have been one or more losses which would have been covered by such
Insurance Policy, promptly deposit into the Certificate Account from its own
funds the amount of such loss or losses that would have been covered under the
individual policy but are not covered under the blanket Insurance Policy because
of such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan, or in the
absence of such deductible limitation, the deductible limitation which is
consistent with the Servicing Standard. In connection with its activities as
administrator and Servicer of the Mortgage Loans, the Servicer agrees to prepare
and present, on behalf of itself, the Trustee and Certificateholders, claims
under any such blanket Insurance Policy in a timely fashion in accordance with
the terms of such policy. The Special Servicer, to the extent consistent with
the Servicing Standards, may maintain, earthquake insurance on REO Properties,
provided coverage is available at commercially reasonable rates, the cost of
which shall be a Servicing Advance.
(ii) If the Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single interest or
force-placed insurance policy with a Qualified Insurer naming the Servicer or
the Special Servicer on behalf of the Trustee as the loss payee, then to the
extent such Insurance Policy provides protection equivalent to the individual
policies otherwise required, the Servicer or the Special Servicer shall
conclusively be deemed to have satisfied its obligation to cause such insurance
to be maintained on the related Mortgage Properties and REO Properties. In the
event the Servicer or the Special Servicer shall cause any Mortgaged Property or
REO Property to be covered by such master single interest or force-placed
insurance policy, the incremental costs of such insurance applicable to such
Mortgaged Property or REO Property (i.e., other than any minimum or standby
premium payable for such policy whether or not any Mortgaged Property or REO
Property is covered thereby) shall be paid by the Servicer as a Servicing
Advance. Such master single interest or force-placed policy may contain a
deductible clause, in which case the Servicer or the Special Servicer shall, in
the event that there shall not have been maintained on the related Mortgaged
Property or REO Property a policy otherwise complying with the provisions of
Section 3.07(a), and there shall have been one or more losses which would have
been covered by such policy had it been maintained, deposit into the Certificate
Account from its own funds the amount not otherwise payable under the master
single or force-placed interest policy because of such deductible clause, to the
extent that any such deductible exceeds the deductible limitation that pertained
to the related Mortgage Loan, or, in the absence of any such deductible
limitation, the deductible limitation which is consistent with the Servicing
Standard.
(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 is rated at
least "A" by S&P and Fitch, the Servicer shall be allowed to provide
self-insurance with respect to a fidelity bond and an Errors and Omissions
Insurance Policy. The amount of coverage shall be at least equal to the coverage
that would be required by Xxxxxx Xxx or Xxxxxxx Mac, whichever is greater, with
respect to the Servicer or the Special Servicer if the Servicer or the Special
Servicer, as applicable, were servicing and administering the Mortgage Loans or
Specially Serviced Mortgage Loans, as applicable, for Xxxxxx Mae or Xxxxxxx Mac.
Coverage of the Servicer or the Special Servicer under a policy or bond obtained
by an Affiliate of the Servicer or the Special Servicer and providing the
coverage required by this Section 3.07(c) shall satisfy the requirements of this
Section 3.07(c). The Special Servicer and the Servicer will promptly report in
writing to the Trustee any material changes that may occur in their respective
fidelity bonds, if any, and/or their respective errors and omissions Insurance
Policies, as the case may be, and will furnish to the Trustee copies of all
binders and policies or certificates evidencing that such bonds, if any, and
insurance policies are in full force and effect. The Servicer and the Special
Servicer shall each cause the Trustee to be an additional loss payee on any
policy currently in place or procured pursuant to the requirements of this
Section 3.07(c).
(d) At the time the Servicer determines in accordance with the
Servicing Standard that any Mortgaged Property shall be in a federally
designated special flood hazard area (and such flood insurance has been made
available), the Servicer will use reasonable efforts to cause the related
Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan
documents) to maintain, and, if the related Mortgagor shall default in its
obligation to so maintain, shall itself maintain to the extent available at
commercially reasonable rates (as determined by the Servicer in accordance with
the Servicing Standards) and to the extent the Trustee, as mortgagee, has an
insurable interest therein, flood insurance in respect thereof, but only to the
extent the related Mortgage Loan permits the mortgagee to require such coverage
and the maintenance of such coverage is consistent with the Servicing Standards.
Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid
principal balance of the related Mortgage Loan, and (ii) the maximum amount of
insurance which is available under the National Flood Insurance Act of 1968, as
amended. If the cost of any insurance described above is not borne by the
Mortgagor, the Servicer shall promptly make a Servicing Advance for such costs.
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Servicer as a Servicing Advance.
Section 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other transfer
of an interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other
transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Servicer shall provide notice to the Special Servicer of any request for a
waiver thereof along with its written recommendation, and the Special Servicer,
subject to the rights of the Directing Certificateholder, on behalf of the
Trustee as the mortgagee of record, shall exercise (or waive its right to
exercise) any right it may have with respect to such Mortgage Loan (x) to
accelerate the payments thereon or (y) to withhold its consent to any such sale
or other transfer, in a manner consistent with the Servicing Standards.
(b) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Servicer shall provide notice to the Special Servicer of any request for a
waiver thereof along with its written recommendation, and the Special Servicer,
subject to the rights of the Directing Certificateholder, on behalf of the
Trustee as the mortgagee of record, shall exercise (or waive its right to
exercise) 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.
(e) Notwithstanding the foregoing, the Special Servicer shall not
waive any rights under a "due-on-encumbrance" clause with respect to any
Mortgage Loan which (together with any Mortgaged Loans cross-collateralized with
such Mortgage Loan) represents over 2% of the outstanding principal balance of
the pool of Mortgage Loans (or, as a result of such waiver, such related
Mortgage Loan (or group, as applicable) has a combined loan-to-value ratio
greater than 85%) unless it obtains from each Rating Agency a written
confirmation that such waiver will not cause a downgrading, qualification or
withdrawal of the then current rating assigned to any of the Certificates;
provided, that such confirmation shall only be required by Fitch if such
Mortgage Loan or pool of Mortgage Loans is one of the then current top ten
Mortgage Loans (or pool of Mortgage Loans) by Stated Principal Balance. The
Special Servicer shall provide copies of any such waivers to the Servicer and
each Rating Agency with respect to each Mortgage Loan. To the extent any fee
charged by each Rating Agency in connection with rendering such written
confirmation is not paid by the related Mortgagor, such fee is to be an expense
of the Trust. Notwithstanding the foregoing, the Special Servicer shall not
waive any rights under a "due-on-sale" clause with respect to any of the
Mortgage Loans which (together with any Mortgaged Loans cross-collateralized
with such Mortgage Loans) represent over 2% of the outstanding principal balance
of the pool of Mortgage Loans unless it obtains from each Rating Agency a
written confirmation that such waiver would not cause a downgrading,
qualification or withdrawal of the then current rating assigned to any of the
Certificates, provided, that such confirmation shall only be required by Fitch
if such Mortgage Loan or pool of Mortgage Loans is one of the then current top
ten Mortgage Loans (or pool of Mortgage Loans) by Stated Principal Balance. To
the extent any fee charged by each Rating Agency in connection with rendering
such written confirmation is not required to be paid by the related Mortgagor
under the related Mortgage Loan documents whether expressly or otherwise and the
Servicer or Special Servicer (as applicable) shall not approve an assumption
without (a) requiring the Mortgagor to pay such fees associated with the
approval thereof or (b) satisfying such fee obligation by other means (which
shall not be an expense or liability of the Trust), without the consent of the
Directing Certificateholder. The Special Servicer shall provide copies of any
such waivers to the Servicer and each Rating Agency with respect to each
Mortgage Loan.
(f) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20, the Servicer may, without any Rating Agency confirmation as
provided in clause (e) above or Special Servicer approval, (i) consent to
subordination of the related Mortgage Loan to such easement or right-of-way for
utilities, access, parking, public improvements or another purpose, provided the
Servicer shall have determined in accordance with the Servicing Standards that
such easement or right-of-way shall not materially interfere with the
then-current use of the related Mortgaged Property, or the security intended to
be provided by such Mortgage, the related Mortgagor's ability to repay the
Mortgage Loan, or materially or adversely affect the value of such Mortgaged
Property, (ii) grant releases of non-material parcels of a Mortgaged Property
(provided that releases as to which the related Mortgage Loan documents
expressly require the mortgagee thereunder to make such releases upon the
satisfaction of certain conditions shall be made as required by the Mortgage
Loan documents), and (iii) approve or consent to grants of easements and
rights-of-way that do not materially affect the use or value of a Mortgaged
Property or the Mortgagor's ability to make any payments with respect to the
related Mortgage Loan; provided that any such modification, waiver or amendment
(w) would not in any way affect a payment term of the Certificates, (x) would
not constitute a "significant modification" of such Mortgage Loan pursuant to
Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an
Adverse REMIC Event with respect to any REMIC, (y) agreeing to such
modification, waiver or amendment would be consistent with the Servicing
Standard 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.
Section 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to subsections (b) through
(d) and (e) of this Section 3.09, exercise reasonable efforts, consistent with
the Servicing Standards, to foreclose upon or otherwise comparably convert
(which may include an REO Acquisition) the ownership of property securing such
Mortgage Loans, 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 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 has determined that
such Servicing Advance together with accrued and unpaid interest thereon will be
recoverable by the Servicer out of the proceeds of liquidation of such Mortgaged
Property, as contemplated in Section 3.05(a)(iv). The Special Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings (such costs and expenses to be advanced by the Servicer 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(a) 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, 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
will not cause the imposition of a tax on the Upper-Tier REMIC, the
Lower-Tier REMIC or the Loan REMIC under the REMIC Provisions or cause the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to fail to
qualify as a REMIC at any time that any Uncertificated Lower-Tier
Interest, Loan REMIC Regular Interest or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Servicer shall, on behalf of the Trustee,
obtain title to a Mortgaged Property in lieu of foreclosure or otherwise, or
take any other action with respect to any Mortgaged Property, if, as a result of
any such action, the Trustee, on behalf of the Certificateholders, would be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law, unless (as evidenced by an Officer's Certificate to such
effect delivered to the Trustee) the Special Servicer has previously determined
in accordance with the Servicing Standards, based on an Environmental Assessment
of such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices in effect and obtained on behalf of the Mortgagee with respect to
the related Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Servicer as a Servicing Advance and the cost of any remedial, corrective or
other further action contemplated by clause (i) and/or clause (ii) of the
preceding sentence shall be paid by the Servicer as a Servicing Advance, unless
it is a Nonrecoverable Servicing Advance (in which case it shall be an expense
of the Trust Fund and may be withdrawn by the Servicer from the Certificate
Account or Newport Collection Account at the direction of the Special Servicer);
and if any such Environmental Assessment so warrants, the Special Servicer
shall, at the expense of the Trust Fund, perform 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 and Loan REMIC Regular Interests).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and (ii) there has been no
breach of any of the representations and warranties set forth in or required to
be made pursuant to Section 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 Paying Agent and the Servicer in writing of its intention to so release such
Mortgaged Property and the bases for such intention, (ii) the Trustee or the
Paying Agent shall have notified the Certificateholders in writing of the
Special Servicer's intention to so release such Mortgaged Property, (iii) the
Holders of Certificates entitled to a majority of the Voting Rights shall have
consented to such release within 30 days of the Trustee's or the Paying Agent's
distributing such notice (failure to respond by the end of such 30-day period
being deemed consent) and (iv) the Special Servicer shall have received written
confirmation from each Rating Agency that such release will not cause the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates. To the extent any fee charged by each Rating Agency in
connection with rendering such written confirmation is not paid by the related
Mortgagor, such fee is to be an expense of the Trust.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Paying Agent, the Directing
Certificateholder and the Servicer monthly regarding any actions taken by the
Special Servicer with respect to any Mortgaged Property securing a defaulted
Mortgage Loan as to which the environmental testing contemplated in subsection
(c) above has revealed that either of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof has not been satisfied, in each case
until the earlier to occur of satisfaction of both such conditions, repurchase
of the related Mortgage Loan by the applicable Mortgage Loan Seller or release
of the lien of the related Mortgage on such Mortgaged Property. The Servicer
shall forward, or cause to be forwarded all such reports to the Paying Agent.
The Paying Agent shall forward all such reports to each Rating Agency promptly
following the receipt thereof and the Certificateholders upon request.
(f) The Special Servicer shall provide the Servicer with all
information regarding forgiveness of indebtedness and required to be reported
with respect to any Mortgage Loan which is abandoned or foreclosed and the
Servicer shall report to the Internal Revenue Service and the related Mortgagor,
in the manner required by applicable law, such information and the Servicer
shall report, via Form 1099C, all forgiveness of indebtedness to the extent such
information has been provided to the Servicer by the Special Servicer.
(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 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 or REO Property and the basis thereof. Each
Final Recovery Determination shall be evidenced by an Officer's Certificate
promptly delivered to the Trustee, the Paying Agent 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. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Certificate Account or Newport Collection Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage 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 or the Newport
Collection 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 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 (subject to the third paragraph of this
Section 3.11(a)) with respect to each Mortgage Loan and REO Loan (including
Specially Serviced Mortgage Loans). As to each Mortgage 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
and a 360 day year consisting of twelve 30-day months 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 deemed to be due on such
REO Loan is computed. The Servicing Fee with respect to any Mortgage Loan or REO
Loan shall cease to accrue if a Liquidation Event occurs in respect thereof. The
Servicing Fee shall be payable monthly, on a loan-by-loan basis, from payments
of interest on each Mortgage Loan and REO Revenues allocable as interest on each
REO Loan, and as otherwise provided by Section 3.05(a). Notwithstanding the
foregoing, upon receipt of the Servicing Fee with respect to the Newport
Mortgage Loan, the Servicer shall pay the Newport Excess Strip Amount for the
related Interest Accrual Period to Allied Capital Corporation (or its successors
and assigns) by wire transfer of immediately available funds. The Servicer shall
be entitled to recover unpaid Servicing Fees in respect of any Mortgage 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 as set forth in the third paragraph of this Section 3.11(a).
The Servicer shall be entitled to retain, and shall not be required
to deposit in the Certificate Account or the Newport Collection Account pursuant
to Section 3.04(a), additional servicing compensation in the form of 100% of all
application fees for assumptions, extensions and modifications and 50% of all
extension fees, assumption fees and modification fees on the Mortgage Loans that
are not Specially Serviced Mortgage Loans, to the extent that such fees are paid
by the Mortgagor on Mortgage Loans that are not Specially Serviced Mortgage
Loans and only to the extent that all amounts then due and payable with respect
to the related Mortgage Loan (including interest on Advances) have been paid. In
addition, the Servicer shall be entitled to retain as additional servicing
compensation any charges for processing borrower 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 or the Newport Collection Account pursuant to Section
3.04(a). The Servicer shall also be entitled to additional servicing
compensation in the form of: (i) Penalty Charges received on the Mortgage Loans
and accrued during such time as such Mortgage Loan was not a Specially Serviced
Mortgage Loan, but only to the extent actually paid by the related Mortgagor and
to the extent that all amounts then due and payable with respect to the related
Mortgage Loan and all unpaid Advances (including interest on related Advances)
and additional Trust Fund expenses payable with respect to such Mortgage Loan
have been paid; (ii) interest or other income earned on deposits relating to the
Trust Fund in the Certificate Account and Newport Collection Account in
accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to such accounts for the period from the prior
P&I Advance Date to the P&I Advance Date related to such Distribution Date); and
(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. 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 or the Newport
Collection Account, and the Servicer shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
Notwithstanding anything herein to the contrary, Midland may at its
option assign or pledge to any third party or retain for itself the Transferable
Servicing Interest; provided, however, that in the event of any resignation or
termination of the Servicer, all or any portion of the Transferable Servicing
Interest may be reduced by the Trustee to the extent reasonably necessary (in
the sole discretion of the Trustee) for the Trustee to obtain a qualified
successor Servicer (which successor may include the Trustee) that meets the
requirements of Section 6.04 and who requires market rate servicing compensation
that accrues at a per annum rate in excess of the Retained Fee Rate, and any
such assignment of the Transferable Servicing Interest shall, by its terms be
expressly subject to the terms of this Agreement and such reduction. The
Servicer shall pay the Transferable Servicing Interest to the holder of the
Transferable Servicing Interest (i.e., Midland or any such third party) at such
time and to the extent the Servicer is entitled to receive payment of its
Servicing Fees hereunder, notwithstanding any resignation or termination of
Midland hereunder (subject to reduction pursuant to the preceding sentence).
(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. As to each Specially
Serviced Mortgage Loan and 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 a 360 day year consisting of 30-day months 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.
Additional servicing compensation in the form of all application
fees and all assumption, extension and modification fees received on any
Mortgage Loan (including Specially Serviced Mortgage Loans), to the extent not
required to be paid to the Servicer pursuant to Section 3.11(a) but only to the
extent actually collected from the related Mortgagor and only to the extent that
all amounts then due and payable with respect to the related Mortgage Loan
(including those payable to the Servicer pursuant to Section 3.11(a)) have been
paid, shall be promptly paid to the Special Servicer by the Servicer and shall
not be required to be deposited in the Certificate Account or the Newport
Collection Account pursuant to Section 3.04(a). The Special Servicer shall also
be entitled to additional servicing compensation in the form of a Workout Fee
with respect to each Corrected Mortgage Loan at the Workout Fee Rate on such
Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The 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 Mortgage Loan again becomes a
Specially Serviced Mortgage Loan. If the Special Servicer is terminated (other
than for cause) for any reason 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 for any reason, 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, 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 subject to the exceptions set forth in the definition of
Liquidation Fee. 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, the purchase of any Specially Serviced
Mortgage Loan by the Controlling Class Option Holder or Special Servicer
pursuant to Section 3.18(a) 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 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 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. If the Special
Servicer resigns or is terminated (other than for cause), it will receive a
portion of any Liquidation Fee that becomes payable with respect to a Specially
Serviced Mortgage Loan or related REO Property that was being administered by
the Special Servicer at the time of such resignation or termination. The
terminated Special Servicer and the successor Special Servicer will apportion
the Liquidation Fee between themselves in a manner that reflects their relative
contributions in earning the Liquidation Fee; provided that if there is a
dispute with respect to who is entitled to such Liquidation Fee, the decision of
the successor Special Servicer shall govern. The Special Servicer will also be
entitled to additional fees in the form of Penalty Charges on Specially Serviced
Mortgage Loans which accrued during such time as such Mortgage Loan was a
Specially Serviced Mortgage Loan, but only to the extent actually collected from
the related Mortgagor and to the extent that all amounts then due and payable
with respect to the related Mortgage Loan (including interest on Advances) and
all unpaid Advances and additional Trust Fund expenses payable with respect to
the related Mortgage Loan have been paid. 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, Newport Collection Account or the REO Account, and the
Special Servicer shall not be entitled to reimbursement therefor except as
expressly provided in this Agreement.
(c) In determining the compensation of the Servicer or Special
Servicer, as applicable, with respect to Penalty Charges, on any Distribution
Date, the aggregate Penalty Charges collected on any Mortgage Loan since the
prior Distribution Date shall be applied (in such order) to reimburse (i) the
Servicer or the Trustee for interest on Advances on such Mortgage Loan due on
such Distribution Date and any incurred but not reimbursed additional trust fund
expenses and any additional Trust Fund expenses paid out of general collections
in the Certificate Account or Newport Collection Account (other than Advances)
with respect to such Mortgage Loan and (ii) the Trust Fund for all interest on
Advances previously paid to the Servicer or the Trustee pursuant to Section
3.05(a)(vi) hereof and any incurred but not reimbursed additional Trust Fund
expenses and any additional trust fund expenses paid out of general collections
in the Certificate Account or Newport Collection Account (other than Advances)
with respect to such Mortgage Loan and any Penalty Charges remaining thereafter
shall be distributed pro rata to the Servicer and the Special Servicer based
upon the amount of Penalty Charges the Servicer or the Special Servicer would
otherwise have been entitled to receive during such period without any such
application. To the extent the Servicer (as to any Mortgage Loan that is not a
Specially Serviced Mortgage Loan) without the consent of the Directing
Certificateholder and the Special Servicer (as to any Specially Serviced
Mortgage Loan) without the consent of the Directing Certificateholder waives any
related Penalty Charges, any outstanding interest on Advances or additional
Trust Fund expenses that would otherwise have been paid out of such Penalty
Charges shall be paid out of any compensation (other than the Servicing Fee)
that would have otherwise been payable to the Servicer or Special Servicer
(including Net Investment Earnings with respect to such Mortgage Loan or such
Specially Serviced Mortgage Loan) in an amount up to the aggregate Penalty
Charges waived with respect to such Mortgage Loan or Specially Serviced Mortgage
Loan, as the case may be; and provided, further, that if no such compensation,
as applicable, is available to offset the outstanding interest on Advances or
additional Trust Fund expenses that would otherwise be offset by the Penalty
Charges, then the Servicer or Special Servicer, as the case may be, shall not
waive such Penalty Charges.
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 securing a Mortgage Note with a Stated Principal Balance of (a)
$2,000,000 or more, at least once every 12 months and (b) less than $2,000,000,
at least once every 24 months, in each case commencing in the calendar year
2002; provided, however, 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.
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 the Trustee and the Paying Agent within 5
Business Days after request (or if such request is received before such report
is completed, within 5 Business Days after completion of such report). The
Paying Agent shall deliver a copy of each such report to each Rating Agency and
the Controlling Class Certificateholder upon request and to each Holder of a
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class
NR Certificate, upon request (which such request may state that such items be
delivered until further notice).
(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, 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. Upon written request, the Servicer
and the Special Servicer shall each deliver copies of all the foregoing items so
collected thereby to the Paying Agent, 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 30th of each year. The Paying Agent shall,
upon request (which request may be a single continuing request), deliver copies
(in hard copy, electronic format or make available on its internet website) of
the foregoing items to the Underwriters, the Rating Agencies, the Trustee,
Controlling Class Certificateholders, the Mortgage Loan Sellers or, to the
extent the Certificate Registrar has confirmed the Ownership Interest in
Certificates held thereby, any Certificate Owner, a copy (or image in suitable
electronic media) of each such report prepared by the Servicer or the Special
Servicer.
By the later to occur of: (i) 45 days after receipt by the Servicer
of any annual operating statements or rent rolls with respect to any Mortgaged
Property or REO Property or (ii) June 30th of each year, the Servicer shall,
based upon such operating statements or rent rolls received, prepare (or, if
previously prepared, update) the analysis of operations and the NOI Adjustment
Worksheet and the Operating Statement Analysis Report. The Special Servicer
shall forward to the Servicer within 5 Business Days of receipt all operating
statements and rent rolls received by the Special Servicer from any Mortgagor.
All Operating Statement Analysis Reports shall be maintained by the Servicer
with respect to each Mortgaged Property and REO Property, and the Servicer shall
forward copies (in hard copy, electronic format or make available on its
internet website) thereof (in each case, promptly following the initial
preparation and each material revision thereof) to the Paying Agent and the
Special Servicer, and, upon written request, the related operating statements or
rent rolls. The Paying Agent shall, upon request and to the extent such items
have been delivered to the Paying Agent by the Servicer, deliver to the Trustee,
the Underwriters, the Rating Agencies, the Mortgage Loan Sellers, any
Certificateholder or, to the extent the Certificate Registrar has confirmed the
Ownership Interest in the Certificates held thereby, any Certificate Owner, a
copy of such Operating Statement Analysis (or update thereof) and the related
operating statement or rent rolls. The Servicer shall maintain an Operating
Statement Analysis Report with respect to each Mortgaged Property and REO
Property.
(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 the following
reports with respect to the Specially Serviced Mortgage Loans and any REO
Properties, providing the information required of the Special Servicer in an
electronic format, reasonably acceptable to the Servicer as of such
Determination Date: (i) a Delinquent Loan Status Report, (ii) a Comparative
Financial Status Report, (iii) an Historical Liquidation Report; (iv) an
Historical Loan Modification Report and (v) an REO Status Report.
(e) Not later than 11:00 a.m. (New York City time) on the second
Business Day after each Determination Date, the Servicer shall prepare (if and
to the extent necessary) and deliver or cause to be delivered to the Paying
Agent data files relating to the following reports: (i) to the extent received
at the time required, the most recent Delinquent Loan Status Report, Historical
Liquidation Report, Historical Loan Modification Report and REO Status Report
received from the Special Servicer pursuant to Section 3.12(d), (ii) the most
recent CMSA Property File, CMSA Loan Periodic Update File and Comparative
Financial Status Report (in each case combining the reports prepared by the
Special Servicer and Servicer), and (iii) a Servicer Watch List Report with
information that is current as of such Determination Date. 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 to the
Paying Agent a data file containing an updated CMSA Loan Periodic Update File to
the extent any Balloon Payments or prepayments required to be included in the
Available Distribution Amount for such Distribution Date have been received
prior to the P&I Advance Date but after the Determination Date.
(f) The Special Servicer shall deliver to the Servicer the reports
set forth in Section 3.12(c) and Section 3.12(d), and the Servicer shall deliver
to the Paying Agent the reports set forth in Section 3.12(e). The Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer pursuant to Section 3.12(e) and Section 3.12 (d). The Paying
Agent may, absent manifest error, conclusively rely on the reports to be
provided by the Servicer pursuant to Section 3.12(e). In the case of information
or reports to be furnished by the Servicer to the Paying Agent pursuant to
Section 3.12(e), to the extent that such information or reports are, in turn,
based on information or reports to be provided by the Special Servicer pursuant
to Section 3.12(c) or Section 3.12(d) and to the extent that such reports are to
be prepared and delivered by the Special Servicer pursuant to Section 3.12 (c)
or Section 3.12(d), the Servicer shall have no obligation to provide such
information or reports to the Paying Agent until it has received the requisite
information or reports from the Special Servicer, and the Servicer shall not be
in default hereunder due to a delay in providing the reports required by Section
3.12(e) caused by the Special Servicer's failure to timely provide any
information or report required under Section 3.12(c) or Section 3.12(d) of this
Agreement.
(g) Notwithstanding 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) making such statement, report or
information available on the Servicer's internet website, unless this Agreement
expressly specifies a particular method of delivery. Notwithstanding the
foregoing, the Servicer and the Special Servicer shall deliver any statements,
reports or other information to the Paying Agent in an electronic format
mutually agreeable to the Paying Agent and the Servicer or Special Servicer may
physically deliver a paper copy of any such statement, report or information as
a temporary measure due to system problems.
Section 3.13 Annual Statement as to Compliance.
Each of the Servicer and the Special Servicer will deliver to the
Trustee, the Paying Agent and the Rating Agencies, with a copy to the Depositor,
on or before March 25th of each year, beginning March 25, 2002, 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 maintained an effective internal control system relating to its
servicing of the Mortgage Loans serviced by it and has fulfilled in all material
respects its obligations under this Agreement throughout such year, or, if there
has been a material default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and (iii) the Servicer or the Special Servicer, as the case may be, has
received no notice regarding qualification, or challenging the status of either
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.
Section 3.14 Reports by Independent Public Accountants.
Each of the Servicer and the Special Servicer at their own expense
shall cause a nationally recognized firm of independent certified public
accountants to furnish to the Trustee, the Paying Agent and each Rating Agency,
on or before March 25th of each year, commencing with March 25, 2002, a report
stating that (i) it has obtained from the Servicer or the Special Servicer, as
the case may be, a letter of representation regarding certain matters from the
management of the Servicer or the Special Servicer, as the case may be, which
includes an assertion that the Servicer or the Special Servicer, as the case may
be, has maintained an effective internal control system with respect to the
servicing of the mortgage loans and has complied with certain minimum mortgage
loan servicing standards (to the extent applicable to commercial, multifamily
and manufactured housing community 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, multifamily or
manufactured housing community 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,
multifamily and manufactured housing community 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.
Section 3.15 Access to Certain Information.
Each of the Servicer and the Special Servicer shall provide or cause
to be provided to any Certificateholder or Certificate Owner that is, or is
affiliated with, a federally insured financial institution, the Trustee, the
Paying Agent, the Depositor, each Mortgage Loan Seller, each Rating Agency, 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 G, Class H, Class J, Class K,
Class L, Class M, Class N, Class NR, Class NC-1, Class NC-2 Certificate access
to any documentation or information regarding the Mortgage Loans and the Trust
Fund within its control which may be required by this Agreement or by applicable
law. Such access shall be afforded without charge but only upon reasonable prior
written request and during normal business hours at the offices of the Servicer
or the Special Servicer, as the case may be, designated by it; provided,
however, that Certificateholders and Certificate Owners shall be required to pay
their own photocopying costs and execute a reasonable and customary
confidentiality agreement with respect to such information. The failure of the
Servicer or the Special Servicer to provide access as provided in this Section
3.15 as a result of a confidentiality obligation shall not constitute a breach
of this Section 3.15. Subject to such person signing the confidentiality
agreement in the second preceding sentence, 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. Notwithstanding
the foregoing, the Servicer and the Special Servicer shall maintain separate
from such confidential information and intellectual property, all documentation
regarding the Mortgage Loans that is not confidential.
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. The Special Servicer, on behalf of the Trust
Fund, 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, the Paying
Agent and the Servicer an Opinion of Counsel, addressed to the Trustee, the
Paying Agent and the Servicer, to the effect that the holding by the 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 result in the
imposition of taxes on "prohibited transactions" of the Trust Fund, the Loan
REMIC, Lower-Tier REMIC or the Upper-Tier REMIC constituted thereby as defined
in Section 860F of the Code or cause the Loan REMIC, Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any Loan REMIC
Regular Interests, Uncertificated Lower-Tier Interests or Certificates are
outstanding. If the Special Servicer is granted the REO Extension contemplated
by clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel contemplated by clause (ii) of the immediately preceding sentence, the
Special Servicer shall sell such REO Property within such longer period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its being
granted the REO Extension contemplated by clause (i) of the second preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the second preceding sentence, shall be an expense of the Trust Fund payable out
of the Certificate Account pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and the
Trustee (as holder of the Uncertificated Lower-Tier Interests and Loan REMIC
Regular 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 each Determination
Date, the Special Servicer shall withdraw from the REO Account and deposit into
the Certificate Account or the Newport Collection Account, as applicable, the
aggregate of all amounts received in respect of each REO Property since the last
Determination Date, 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 each Determination Date,
the Special Servicer shall provide the Servicer with a written accounting of
amounts deposited in the Certificate Account or Newport Collection Account on
such 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 Trustee (as holder of the Loan REMIC
Regular Interests and the Uncertificated Lower-Tier Interests) solely for the
purpose of its timely disposition and sale in a manner that does not cause such
REO Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by the Trust Fund of any
"income from non-permitted assets" within the meaning of Section 860F(a)(2)(B)
of the Code or result in an Adverse REMIC Event. Subject to the foregoing,
however, the Special Servicer shall have full power and authority to do any and
all things in connection therewith as are in the best interests of and for the
benefit of the Certificateholders and the Trustee (as holder of the Loan REMIC
Regular Interests and the Uncertificated Lower-Tier Interests) (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
Code Section 860G(d) if it determines that earning such income is in the best
interests of Certificateholders on a net after-tax basis as compared with net
leasing such REO Property or operating such REO Property on a different basis.
In connection therewith, the Special Servicer shall deposit or cause to be
deposited on a daily basis (and in no event later than 1 Business Day following
receipt of such funds) in the applicable REO Account all revenues received by it
with respect to each REO Property and the related REO Loan, and shall withdraw
from the REO Account, to the extent of amounts on deposit therein with respect
to such REO Property, funds necessary for the proper operation, management,
leasing and maintenance of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such REO
Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes unless (as evidenced
by an Officer's Certificate delivered to the Trustee, the Paying Agent and the
Depositor) 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 by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated to monitor and supervise
such Independent Contractor in accordance with the Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee, the Paying Agent and the Servicer a statement prepared by the Special
Servicer setting forth the amount of net income or net loss, as determined for
federal income tax purposes, resulting from the operation and management of a
trade or business on, the furnishing or rendering of a non-customary service to
the tenants of, or the receipt of any other amount not constituting Rents from
Real Property in respect of, any REO Property in accordance with Sections
3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan 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
receive) and determine the fair value of such Defaulted Mortgage Loan in
accordance with the Servicing Standards; provided, however, that such
determination shall be made without taking into account any effect the
restrictions on the sale of such Mortgage Loan contained herein may have on the
value of such Defaulted Mortgage Loan; provided, further, that if the Special
Servicer is then in the process of obtaining an Appraisal with respect to the
related Mortgaged Property, the Special Servicer shall make its fair value
determination as soon as reasonably practicable (but in any event within thirty
(30) days) after its receipt of such an Appraisal. The Special Servicer will,
from time to time, adjust its fair value determination based upon changed
circumstances, new information and other relevant factors, in each instance in
accordance with the Servicing Standards. The Special Servicer shall notify the
Trustee, the Paying Agent, the Servicer and the Directing Certificateholder that
owns the largest Certificate Balance of the Controlling Class (the "Controlling
Class Option Holder") promptly upon its fair value determination and any
adjustment thereto. The Special Servicer shall also deliver to the Servicer, the
Rating Agencies and the Controlling Class Option Holder the most recent
Appraisal of the related Mortgaged Property then in the Special Servicer's
possession, together with such other third-party reports and other information
then in the Special Servicer's possession that the Special Servicer reasonably
believes to be relevant to the fair value determination with respect to such
Mortgage Loan (such materials are, collectively, the "Determination
Information"). If the 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) 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 then payable, to the extent the Special
Servicer or the Special Servicer's assignee is identified as the Person
that will acquire the related Mortgage Loan, (3) all related Advances for
which the Trust Fund or the related Servicer has not been reimbursed,
together with all accrued and unpaid interest thereon at the Advance Rate,
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, the
Paying Agent, and the Servicer of such transfer and such notice shall
include the transferee's name, address, telephone number, facsimile number
and appropriate contact person(s) and shall be acknowledged in writing by
the transferee.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, that if such Mortgage Loan subsequently becomes a
Defaulted Mortgage Loan, the related Purchase Option shall again be
exercisable, (B) upon the acquisition, by or on behalf of the Trust Fund,
of title to the related Mortgaged Property through foreclosure or deed in
lieu of foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout, or
(D) subject to the Servicer's determination set forth in clause (iv)
below, upon another Option Holder's exercise of its Purchase Option with
respect to the related Mortgage Loan becoming effective pursuant to clause
(iii) below.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Controlling Class Certificateholder's Option Period,
each Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Servicer, the Paying Agent 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 Servicer shall notify the
remaining Option Holders that a Purchase Option has been exercised. Within
ten (10) days thereafter, each remaining Option Holder may submit to the
Servicer a Purchase Option Notice for the related Defaulted Mortgage Loan.
Upon the expiration of such ten (10) day period, or such sooner time as
all remaining Option Holders have submitted Purchase Option Notices, the
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 Servicer shall also notify the Trustee of such
effective exercise. In the event that more than one Option Holder
exercises its Purchase Option at the same price, the Purchase Option
Notice first received by the Servicer shall be effective. The exercise of
any Purchase Option pursuant to this clause (iii) shall be irrevocable.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the Servicer shall determine as soon as reasonably
practicable (and, in any event, within thirty (30) days) after the
Servicer has received the written notice and the Determination Information
to be provided to Servicer by Special Servicer under Section 3.18(a)(i),
whether the Option Price represents fair value for the Defaulted Mortgage
Loan; provided that, if the Special Servicer is then in the process of
obtaining a new Appraisal with respect to the related Mortgaged Property,
then the Servicer 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 $2,500 fee for each determination made in accordance with
this clause (iv). 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, subject to the Directing
Certificateholder's reasonable prior written consent, which consent shall not be
unreasonably withheld, shall designate an Independent third party, independent
of the Directing Certificateholder, to determine whether the Option Price
represents fair value for the Defaulted Mortgage Loan, in the manner and within
the time set forth in the first paragraph of this clause (iv). In the event that
the Trustee is called upon to designate such a third party to make such
determination, the Trustee will not assume any responsibility for such third
party's determination which determination the Trustee shall be entitled to
conclusively rely upon. The Servicer shall pay such third party a fee of up to
$2,500 out of the Certificate Account. The reasonable costs of all appraisals,
inspection reports and broker opinions of value, reasonably incurred by the
Trustee or any such third party pursuant to this paragraph shall be advanced by
the Servicer and shall constitute, and be reimbursable as, Servicing Advances.
In connection with the Trustee's designating an Independent third party, the
Special Servicer shall deliver to the Trustee for such Independent third party's
use the Determination Information.
In the event the Servicer or any designated third party, as
applicable, determines that the Option Price is less than the fair value
of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon in
making such determination, to the Special Servicer, who may then adjust
its fair value determination and, consequently, the Option Price, pursuant
to Section 3.18(a)(i). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to clause (iii)
above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close
the purchase of the Defaulted Mortgage Loan. Upon notice from such Option
Holder, or the Special Servicer, that such Option Holder rejects the
Option Price as adjusted, the Servicer and the Trustee shall provide the
notices described in the second paragraph of clause (v) below and
thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the 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 (subject to any rights of any
Sub-Servicer to primary service (or to perform select servicing duties
with respect to) such Mortgage Loan). 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) (or, in the case of the Newport Mortgage Loan, the Newport
Collection 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).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor). The Special Servicer may also offer to sell to any
Person any REO Property, if and when the Special Servicer determines, consistent
with the Servicing Standards, that such a sale would be in the best economic
interests of the Trust Fund and any such sale shall be consistent with the terms
of Section 3.16(a). The Special Servicer shall give the Paying Agent and
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 standard stated
in Section 3.01, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations, or the
terms offered by the prospective buyer making the lower offer are more
favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any REO Property, the Trustee and the Special
Servicer shall obtain and may conclusively rely on the opinion of an
Independent appraiser or other Independent expert in real estate matters
retained by the Trustee or the Special Servicer, as applicable, at the
expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition of
such REO Property, the state of the local economy and the Trust Fund's
obligation to comply with REMIC Provisions.
(ii) Subject to Servicing Standards, the Special Servicer shall act
on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any REO Property,
including the collection of all amounts payable in connection therewith. A
sale of any REO Property shall be without recourse to, or representation
or warranty by, the Trustee, the Paying Agent, the Depositor, any
Servicer, or the Trust Fund (except that any contract of sale and
assignment and conveyance documents may contain customary warranties of
title, so long as the only recourse for breach thereof is to the Trust
Fund) and, if consummated in accordance with the terms of this Agreement,
none of the Servicers, the Depositor, the Paying Agent nor the Trustee
shall have any liability to the Trust Fund or any Certificateholder with
respect to the purchase price therefor accepted by the Special Servicer or
the Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) If the Newport Mortgage Loan becomes a Defaulted Mortgage Loan,
the Special Servicer shall promptly notify in writing the Servicer, the Trustee
and the Paying Agent, and the Paying Agent, following its receipt of such
notice, shall promptly notify the Class NC Certificateholders. Upon receipt of
such notice, the holder of a majority Percentage Interest in all Class NC
Certificates will have the first option, but not the obligation, to purchase the
Newport Mortgage Loan (including the Subordinate Components thereof) from the
Trust Fund at a price equal to the Purchase Price thereof. If the holder of a
majority Percentage Interest in all Class NC Certificates fails to exercise such
option within 15 days after receipt of such notice, then the Newport Mortgage
Loan may be sold in accordance with Sections 3.18(a), (b) and (c).
Section 3.19 Additional Obligations of Servicer and Special
Servicer.
The Servicer shall deliver to the Paying Agent for deposit in the
Distribution Account on each P&I Advance Date, without any right of
reimbursement therefor, with respect to each Mortgage Loan (other than a
Specially Serviced Mortgage Loan or a REO Loan) that was subject to a voluntary
Principal Prepayment during the most recently ended Due Period creating a
Prepayment Interest Shortfall an amount equal to the lesser of (i) such
Prepayment Interest Shortfall or (ii) the Servicing Fee (calculated for this
purpose only at a rate of 0.01% per annum) received by the Servicer during such
Due Period on all Mortgage Loans; provided that to the extent such Prepayment
Interest Shortfall is the result of the Servicer or Special Servicer's failure
to enforce the obligation of the Mortgagor to pay interest through the next Due
Date under the Mortgage Loan documents, the amount specified in clause (ii)
above shall include the remainder of the Servicing Fee with respect to such
Mortgage Loan for such Due Period as well as the remainder of all Servicing Fees
with respect to Mortgage Loans other than such Mortgage Loan (other than that
portion of such Servicing Fees equal to an amount equal to the sum of all
Primary Servicing Fees and the Newport Excess Strip Amount) for such Due Period.
With respect to the Newport Mortgage Loan, all Prepayment Interest Shortfalls
allocable to the Newport Mortgage Loan will be allocated first, to the Class NC
Certificates in accordance with the definition of Distributable Certificate
Interest, and when all Distributable Certificate Interest in respect of all
Class NC Certificates has been reduced to zero, then to the Distributable
Newport Senior Component Interest.
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) Except as set forth in this Section 3.20(a), Section 3.20(i) and
Section 3.08, the Servicer shall not agree to any modification, waiver or
amendment of a Mortgage Loan, and, except as provided in the following
paragraph, Section 3.08 and in Section 3.20(d), no Mortgage Loan that is not a
Specially Serviced Mortgage Loan may be modified, waived or amended, provided,
that the Special Servicer may agree to extend the maturity date of a Mortgage
Loan that is not a Specially Serviced Mortgage Loan, provided, further, that,
except as provided in the following sentence, no such extension entered into
pursuant to this Section 3.20(a) shall be for a period of more than twelve
months from the original maturity date of such Mortgage Loan or shall extend the
maturity date beyond the earlier of (i) two years prior to the Rated Final
Distribution Date and (ii) in the case of a Mortgage Loan secured by a leasehold
estate and not also the related fee interest, the date twenty years prior to the
expiration of such leasehold estate. If such extension would extend the Maturity
Date of a Mortgage Loan for more than twelve months from and after the original
maturity date of such Mortgage Loan and the Mortgage Loan is not in default or
default with respect thereto is not reasonably foreseeable, the Special Servicer
must provide the Trustee 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 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).
Neither the Servicer nor the Special Servicer shall permit the
substitution of any Mortgaged Property (or any portion thereof) for one or more
other parcels of real property at any time the Mortgage Loan is not in default
pursuant to the terms of the related Mortgage Loan documents or default with
respect thereto is not reasonably foreseeable unless (i) subject to the related
loan documents, the Servicer obtains from each Rating Agency a written
confirmation that such substitution will not cause a downgrading, qualification
or withdrawal of the then current rating assigned to any of the Certificates;
provided that, to the extent the fees of the Rating Agencies in connection with
any such confirmation are not required to be paid by the related Mortgagor under
the related Mortgage Loan documents, expressly or otherwise, the Servicer or
Special Servicer (as applicable) shall not approve a substitution without (a)
requiring the Mortgagor to pay such fees associated with the approval thereof or
(b) satisfying such fee obligation by other means (which shall not be an expense
or liability of the Trust), without the consent of the Directing
Certificateholder 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, within the meaning of Treasury Regulations Section
1.1001-3, or (b) it has received an Opinion of Counsel to the effect that such
substitution would not be a "significant modification" of the Mortgage Loan
within the meaning of Treasury Regulations Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan or otherwise, the release of collateral or the pledge of
additional collateral) of the terms of a Specially Serviced Mortgage Loan with
respect to which a payment default or other material default has occurred or a
payment default or other material default is, in the Special Servicer's
judgment, reasonably foreseeable (as evidenced by an Officer's Certificate of
the Special Servicer), is reasonably likely to produce a greater recovery on a
net present value basis (the relevant discounting to be performed at the related
Mortgage Rate) than liquidation of such Specially Serviced Mortgage Loan, then
the Special Servicer may agree to a modification, waiver or amendment of such
Specially Serviced Mortgage Loan, subject to the provisions of this Section
3.20(b) and Section 3.20(c).
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 is in default or default with
respect thereto is reasonably foreseeable, no fee described in this paragraph
shall be collected by any Servicer or Special Servicer from a Mortgagor (or on
behalf of the Mortgagor) in conjunction with any consent or any modification,
waiver or amendment of a Mortgage Loan (unless the amount thereof is specified
in the related Mortgage Note) if the collection of such fee would cause such
consent, modification, waiver or amendment to be a "significant modification" of
the Mortgage Note within the meaning of Treasury Regulations Section
1.860G-2(b).
(d) To the extent consistent with this Agreement, the Special
Servicer may agree to any waiver, modification or amendment of a Mortgage Loan
that is not in default or as to which default is not reasonably foreseeable only
if it provides the Trustee with an Opinion of Counsel (at the expense of the
related Mortgagor or such other Person requesting such modification or, if such
expense cannot be collected from the related Mortgagor or such other Person, to
be paid by the Servicer 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) any of the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC for
purposes of the Code or (y) any of the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC to be subject to any tax under the REMIC Provisions.
Notwithstanding the foregoing, neither the Servicer nor the Special Servicer may
waive the payment of any Yield Maintenance Charge or the requirement that any
prepayment of a Mortgage Loan be made on a Due Date, or if not made on a Due
Date, be accompanied by all interest that would be due on the next Due Date with
respect to any Mortgage Loan that is not a Specially Serviced Mortgage Loan.
(e) In the event of a modification which creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
pursuant to Section 4.06.
(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 and is permitted by
the terms of this Agreement, require that such Mortgagor pay to the Servicer or
the Special Servicer, as the case may be, as additional servicing compensation,
a reasonable or customary fee, for the additional services performed in
connection with such request.
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans entered into pursuant to this Section 3.20 shall be in
writing, signed by the Servicer or the Special Servicer, as the case may be, and
the related Mortgagor (and by any guarantor of the related Mortgage Loan, if
such guarantor's signature is required by the Special Servicer in accordance
with the Servicing Standards).
(h) Each of the Servicer and the Special Servicer shall notify the
Rating Agencies, the Paying Agent, the Mortgage Loan Sellers (if such Mortgage
Loan Seller is not a Servicer or Sub-Servicer of such Mortgage Loan or a
Certificateholder) and each other in writing of any modification, waiver or
amendment of any term of any Mortgage Loan and the date thereof, and shall
deliver to the Trustee or the related Custodian 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. In addition, the Special Servicer shall
promptly send a copy of such a modification, waiver or amendment to the
Servicer. Within 15 days of the Servicer's delivery of the aforesaid
modification, waiver or amendment to the Paying Agent or its receipt from the
Special Servicer, as applicable, the Paying Agent shall forward a copy thereof
to the Trustee and each Holder of a Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N and Class NR Certificate and, if such modification,
waiver or amendment is with respect to the Newport Mortgage Loan, to each Holder
of a Class NC-1 and Class NC-2 Certificate.
(i) To the extent that either the Servicer or Special Servicer
waives any Penalty Charges in respect of any Mortgage Loan, the respective
amounts of additional servicing compensation payable to the Servicer and the
Special Servicer out of such Penalty Charges shall be reduced proportionately
based upon the respective amounts that had been payable thereto out of such
Penalty Charges immediately prior to such waiver.
(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 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 in compliance with the requirements of the terms of the related
Mortgage 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
Mortgage Property; provided, however, that, to the extent consistent with the
related Mortgage Loan documents, the related Mortgagor shall pay the cost of any
such opinion as a condition to granting such defeasance, (iii) to the extent
consistent with the related Mortgage Loan documents, the Mortgagor shall
establish a single purpose entity to act as a successor borrower, if so required
by the Rating Agencies, (iv) to the extent permissible under the related
Mortgage Loan documents, the Servicer shall use its reasonable efforts to
require the related Mortgagor to pay all costs of such defeasance, including but
not limited to the cost of maintaining any successor borrower and (v) to the
extent permissible under the Mortgage 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; provided, however,
that (a) the Servicer shall not be required to obtain such written confirmation
from Fitch to the extent that such Mortgagor has delivered the certificate
required pursuant to clause (i) above, delivered the opinion required pursuant
to clause (ii) above and established the single purpose entity pursuant to
clause (iii) above unless such Mortgage Loan at the time of such defeasance is
one of the ten largest Mortgage Loans by Stated Principal Balance and (b) the
Servicer shall not be required to obtain the S&P confirmation referenced in
clause (v) above with respect to any Mortgage Loan which has a Stated Principal
Balance less than $5,000,000 and represents less than 1% of the Stated Principal
Balance of the Mortgage Pool. In the event the Servicer is not required to
obtain the S&P confirmation referenced in clause (v) above, the Servicer shall
deliver to S&P a letter or certificate in the form of Exhibit L in connection
with such defeasance; provided that to the extent any fee charged by a Rating
Agency in connection with such confirmation is not required to be paid by the
related Mortgagor under the related Mortgage Loan documents, expressly or
otherwise, the Servicer or Special Servicer (as applicable) shall not approve
such defeasance without (a) requiring the Mortgagor to pay such fees associated
with the confirmation thereof or (b) satisfying such fee obligation by other
means (which shall not be an expense or liability of the Trust), without the
consent of the Directing Certificateholder.
(k) Notwithstanding anything herein or in the related Mortgage Loan
Documents to the contrary, the Servicer may permit the substitution of
"government securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, or any other securities that comply with Treasury
Regulations Section 1.860G-2(a)(8) for any Mortgaged Property pursuant to the
defeasance provisions of any Mortgage Loan (or any portion thereof) in lieu of
the defeasance collateral specified in the related Mortgage Loan Documents;
provided that the Servicer reasonably determines that allowing their use would
not cause a default or event of default to become reasonably foreseeable and the
Servicer receives an Opinion of Counsel (at the expense of the Mortgagor to the
extent permitted under the Mortgage Loan documents) to the effect that such use
would not be and would not constitute a "significant modification" of such
Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not
otherwise constitute an Adverse REMIC Event with respect to any REMIC and
provided further that the requirements set forth in Section 3.20(j) are
satisfied; and, further provided, that such securities are non-callable and
backed by the full faith and credit of the United States government, or the
Servicer shall obtain a written confirmation of S&P 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.
(l) If required under the related Mortgage Loan documents or if
otherwise consistent with the Servicing Standards, the Servicer shall establish
and maintain one or more accounts (the "Defeasance Accounts"), which shall be
Eligible Accounts, into which all payments received by the Servicer from any
defeasance collateral substituted for any Mortgaged Property shall be deposited
and retained, and shall administer such Defeasance Accounts in accordance with
the Mortgage Loan documents. Notwithstanding the foregoing, in no event shall
the Servicer permit such amounts to be maintained in the Defeasance Account for
a period in excess of 90 days, unless such amounts are reinvested by the
Servicer in "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, or any other securities that comply with
Treasury Regulations Section 1.860G-2(a)(8). To the extent not required or
permitted to be placed in a separate account, the Servicer shall deposit all
payments received by it from defeasance collateral substituted for any Mortgaged
Property into the Collection Account and treat any such payments as payments
made on the Mortgage Loan in advance of its Due Date in accordance with clause
(a)(i) of the definition of Available Distribution Amount, and not as a
prepayment of the related Mortgage Loan. Notwithstanding anything herein to the
contrary, in no event shall the Servicer permit such amounts to be maintained in
the Collection Account for a period in excess of 365 days.
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Recordkeeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the Servicer shall promptly give notice
thereof, and shall deliver the related Mortgage File and Credit 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 either in the Servicer's possession or otherwise available to the
Servicer without undue burden or expense, and reasonably requested by the
Special Servicer to enable it to assume its functions hereunder with respect
thereto. The Servicer shall use its reasonable efforts to comply with the
preceding sentence within 5 Business Days of the occurrence of each related
Servicing Transfer Event and in any event shall continue to act as Servicer and
administrator of such Mortgage Loan until the Special Servicer has commenced the
servicing of such Mortgage Loan. The Servicer shall deliver to the Paying Agent
a copy of the notice of such Servicing Transfer Event provided by the Servicer
to the Special Servicer pursuant to this Section. The Paying Agent 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 (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 that no other Servicing Transfer Event is continuing with respect
thereto, the Special Servicer shall immediately give notice thereof, and shall
return the related Mortgage File and Credit 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 Credit 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 shall re-commence.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer will provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (with a
copy of each such original to the Servicer), and provide the Servicer with
copies of any additional related Mortgage Loan information including
correspondence with the related Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), the Servicer
shall maintain ongoing payment records with respect to each of the Specially
Serviced Mortgage Loans and REO Properties and shall provide the Special
Servicer with any information in its possession required by the Special Servicer
to perform its duties under this Agreement provided that the Servicer shall only
be required to maintain in such records to the extent the Special Servicer has
provided such information to the Servicer.
(d) No later than 30 days after a Servicing Transfer Event for a
Mortgage Loan, the Special Servicer shall deliver to the Servicer, each Rating
Agency and the Directing Certificateholder, or with respect to the Newport
Mortgage Loan, the Newport Representative in consultation with the Directing
Certificateholder, a report (the "Asset Status Report") with respect to such
Mortgage Loan and the related Mortgaged Property, provided, however, the Special
Servicer shall not be required to deliver an Asset Status Report to the
Directing Certificateholder if they are the same entity. Such Asset Status
Report shall set forth the following information to the extent reasonably
determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Servicer for regular servicing or otherwise realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within 10 Business Days of receiving an Asset Status Report, the
Directing Certificateholder (or with respect to the Newport Mortgage Loan, the
Newport Representative in consultation with the Directing Certificateholder)
does not disapprove such Asset Status Report in writing, the Special Servicer
shall implement the recommended action as outlined in such Asset Status Report;
provided, however, that the Special Servicer may not take any action that is
contrary to applicable law, the Servicing Standards or the terms of the
applicable Mortgage Loan documents. If the Directing Certificateholder (or with
respect to the Newport Mortgage Loan, the Newport Representative in consultation
with 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 (or with respect to
the Newport Mortgage Loan, the Newport Representative in consultation with the
Directing Certificateholder), the Rating Agencies, the Mortgage Loan Sellers 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 (or with respect to the Newport Mortgage Loan, the
Newport Representative in consultation with the Directing Certificateholder)
shall fail to disapprove such revised Asset Status Report in writing within 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 (or with respect to the
Newport Mortgage Loan, the Newport Representative in consultation with 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 (or with respect to the
Newport Mortgage Loan, the Newport Representative in consultation with the
Directing Certificateholder) receipt of the initial Asset Status Report, the
Special Servicer shall implement the actions described in the most recent Asset
Status Report submitted to the Directing Certificateholder (or with respect to
the Newport Mortgage Loan, the Newport Representative in consultation with 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 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 and it has made a reasonable effort to contact the
Directing Certificateholder (or with respect to the Newport Mortgage Loan, the
Newport Representative in consultation with the Directing Certificateholder) and
(ii) in any case, shall determine whether such affirmative disapproval is not in
the best interest of all the Certificateholders pursuant to the Servicing
Standards. An Asset Status Report and its approval or disapproval by the
Directing Certificateholder are in addition to, and not in satisfaction of, the
specific consent right of the Directing Certificateholder set forth in Section
6.07.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction of the Directing Certificateholder (or with respect to
the Newport Mortgage Loan, the Newport Representative in consultation with the
Directing Certificateholder) 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 Loan REMIC, Lower-Tier REMIC and the Upper-Tier REMIC, or (b) result
in the imposition of a "prohibited transaction" or "prohibited contribution" tax
under the REMIC Provisions, or (c) expose the Servicer, the Special Servicer,
the Depositor, the Mortgage Loan Sellers, the Trust Fund, the Paying Agent, the
Trustee or their respective officers, directors, employees or agents to any
claim, suit or liability or (d) materially expand the scope of the Special
Servicer's, Trustee's or the Servicer's responsibilities under this Agreement.
(e) Upon receiving notice of (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 which is not a
Specially Serviced Mortgage Loan for which the Special Servicer is responsible
for such amendment or modification pursuant to Section 3.20, the Servicer shall
immediately give notice thereof, and shall deliver copies of the related
Mortgage File and Credit File (or the applicable portions hereof) to the Special
Servicer and shall use its reasonable efforts to provide the Special Servicer
with all information relating to the Mortgage Loan and reasonably requested by
the Special Servicer to enable it to negotiate with the related Mortgagor and
prepare for any such proceedings. The Servicer shall use its reasonable efforts
to comply with the preceding sentence within 5 Business Days of the occurrence
of each such event. Notwithstanding the foregoing, the occurrence of any event
described in clause (i) or (ii) above shall not in and of itself be considered a
Servicing Transfer Event and, unless an actual Servicing Transfer Event has
occurred with respect to such Mortgage Loan, the Servicer shall continue to act
as Servicer and administrator of such Mortgage Loan and no fees shall be payable
to the Special Servicer with respect to such Mortgage Loan other than any
related modification, assumption or extension fees provided for herein;
provided, however, that in the event a Mortgage Loan subject to clause (i) above
becomes a Specially Serviced Mortgage Loan, such Mortgage Loan shall be deemed
to have been a Specially Serviced Mortgage Loan upon the occurrence of the event
described in clause (i) above and a Special Servicing Fee shall be paid with
respect thereto.
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 obligations under
Articles III and IV hereof; provided that each 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 and the
Trustee (as holder of the Uncertificated Lower-Tier Interests and the Loan REMIC
Regular Interests) shall be a third party beneficiary under such Sub-Servicing
Agreement, but that (except to the extent the Trustee or its designee assumes
the obligations of the Servicer thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trust Fund, the Trustee, the Paying Agent,
any successor Servicer or any Certificateholder 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 and (v) does not permit the Sub-Servicer any direct
rights of indemnification that may be satisfied out of assets of the Trust Fund.
Any successor Servicer hereunder shall, upon becoming successor Servicer, be
assigned and shall assume any Sub-Servicing Agreements from the predecessor
Servicer (subject to Section 3.22(g) hereof). In addition, each Sub-Servicing
Agreement entered into by the Servicer may provide that the obligations of the
Sub-Servicer thereunder shall terminate with respect to any Mortgage Loan
serviced thereunder at the time such Mortgage Loan becomes a Specially Serviced
Mortgage Loan; provided, however, that the Sub-Servicing Agreement may provide
that the Sub-Servicer will continue to make all Advances and calculations and
prepare all reports required under the Sub-Servicing Agreement with respect to
Specially Serviced Mortgage Loans and continue to collect its Servicing Fee as
if no Servicing Transfer Event had occurred and with respect to REO Properties
(and the related REO Loans) as if no REO Acquisition had occurred and to render
such incidental services with respect to such Specially Serviced Mortgage Loans
and REO Properties as are specifically provided for in such Sub-Servicing
Agreement. The Servicer shall deliver to the Trustee copies of all Sub-Servicing
Agreements, and any amendments thereto and modifications thereof, entered into
by it promptly upon its execution and delivery of such documents. References in
this Agreement to actions taken or to be taken by the Servicer include actions
taken or to be taken by a Sub-Servicer on behalf of the Servicer; and, in
connection therewith, all amounts advanced by any Sub-Servicer to satisfy the
obligations of the Servicer hereunder to make Advances shall be deemed to have
been advanced by the Servicer out of its own funds and, accordingly, such
Advances shall be recoverable by such Sub-Servicer in the same manner and out of
the same funds as if such Sub-Servicer were the Servicer, and, for so long as
they are outstanding, such Advances shall accrue interest in accordance with
Section 3.03(d), such interest to be allocable between the Servicer and such
Sub-Servicer pursuant to the terms of the Sub-Servicing Agreement. For purposes
of this Agreement, the Servicer shall be deemed to have received any payment
when a Sub-Servicer retained by it receives such payment. The Servicer shall
notify the Special Servicer, the Trustee and the Depositor in writing promptly
of the appointment by it of any Sub-Servicer (other than the Initial
Sub-Servicer). Except as otherwise provided herein, the Special Servicer may not
enter into Sub-Servicing Agreements and may not assign any of its servicing
obligations hereunder.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to the extent
necessary to ensure the enforceability of the related Mortgage Loans or the
compliance with its obligations under the Sub-Servicing Agreement and the
Servicer's obligations under this Agreement..
(c) As part of its servicing activities hereunder, the Servicer, for
the benefit of the Trustee and the Certificateholders, shall (at no expense to
the Trustee, the Certificateholders or the Trust Fund) monitor the performance
and enforce the obligations of each Sub-Servicer under the related Sub-Servicing
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the
Servicer would require were it the owner of the Mortgage Loans. The Servicer
shall have the right to remove a Sub-Servicer retained by it in accordance with
the terms of the related Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Servicer and assumes the rights and obligations of the Servicer under any
Sub-Servicing Agreement, the Servicer, at its expense, shall deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement
and this Section 3.22, the Servicer represents and warrants that it shall remain
obligated and liable to the Trustee and the Certificateholders for the
performance of its obligations and duties under this Agreement in accordance
with the provisions hereof to the same extent and under the same terms and
conditions as if it alone were servicing and administering the Mortgage Loans
for which it is responsible, and the Servicer shall pay the fees of any
Sub-Servicer thereunder from its own funds. In no event shall the Trust Fund
bear any termination fee required to be paid to any Sub-Servicer as a result of
such Sub-Servicer's termination under any Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence or misuse, and shall be indemnified by the
Sub-Servicer, with respect to, 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.
(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 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).
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, and to the Depositor,
the Paying Agent and the Special Servicer, as of the Closing Date, that:
(i) The Servicer is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, 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, does not (A) violate the Servicer's certificate of incorporation
and by-laws or (B) constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other material instrument to
which it is a party or which is applicable to it or any of its assets, or
(C) violate any law, rule, regulation, order, judgment or decree to which
the Servicer or its property is subject, which, in the case of either (B)
or (C), is likely to materially and adversely affect either the ability of
the Servicer to perform its obligations under this Agreement or its
financial condition;
(iii) The Servicer has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Paying Agent, the Special Servicer and the
Depositor, constitutes a valid, legal and binding obligation of the
Servicer, enforceable against the Servicer in accordance with the terms
hereof, subject to 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 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
Servicer's reasonable judgement is likely to materially and adversely
affect the financial condition or operations of the 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 Servicer's
knowledge, threatened against the Servicer which would prohibit the
Servicer from entering into this Agreement or, 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;
(vii) The Servicer will examine each Sub-Servicing Agreement and
will be familiar with the terms thereof. Any Sub-Servicing Agreements will
comply with the provisions of Section 3.22; and
(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 Servicer, or compliance by the Servicer with, this
Agreement or the consummation of the transactions of the 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 Servicer of its obligations under this
Agreement, or which, if not obtained would not have a materially adverse
effect on the ability of the Servicer to perform its obligations
hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Representations, Warranties and Covenants of the
Special Servicer.
(a) The Special Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Paying Agent, the Depositor and the Servicer, as of the Closing Date, that:
(i) The Special Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, does not (A) violate the Special
Servicer's certificate of incorporation and by-laws or (B) constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or which is
applicable to it or any of its assets, or (C) violate any law, rule,
regulation, order, judgment or decree to which the Special Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or its financial
condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Paying Agent, the 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 judgement is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer;
(vii) Each officer or employee of the Special Servicer that has or,
following the occurrence of a Servicing Transfer Event, would have
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c); and
(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, or which, if not obtained would not have
a materially adverse effect on the ability of the Special Servicer to
perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement. Such
indemnification shall survive any termination or resignation of the Special
Servicer, the termination or resignation of the Trustee and any termination 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 Paying Agent, in respect of the Interest Reserve 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 Mortgage Rate, to the extent a full Monthly Payment or P&I
Advance is made in respect thereof (all amounts so deposited in any consecutive
February and January, "Withheld Amounts").
(b) On each P&I Advance Date occurring in March, the Paying Agent
shall withdraw, from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January (if applicable) and February, if
any, and deposit such amount into the Lower-Tier Distribution Account or, with
respect to the Newport Mortgage Loan, the Loan REMIC Distribution Account.
Section 3.27 Excess Interest Distribution Account.
Prior to the applicable Distribution Date, the Servicer is required
to remit to the Paying Agent for deposit into the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the related Due
Period.
Section 3.28 Directing Certificateholder Contact with Servicers.
No less often than on a monthly basis, each of the Servicer and the
Special Servicer shall, without charge, make a knowledgeable Servicing Officer
available to answer questions from the Directing Certificateholder regarding the
performance and servicing of the Mortgage Loans and/or REO Properties for which
the Servicer or the Special Servicer, as the case may be, is responsible.
Section 3.29 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 Paying Agent and to notify the Paying Agent of the transfer of
any Certificate of a Controlling Class, the selection of a Directing
Certificateholder or the resignation or removal thereof. The Directing
Certificateholder is hereby deemed to have agreed by virtue of its purchase of a
Certificate to notify the Paying Agent 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 interest in the Trust Fund
having at least 25% of its initial Class Balance.
(c) Once a Directing Certificateholder has been selected, each of
the Servicer, the Special Servicer, the Depositor, the Trustee, the Paying Agent
and each other Certificateholder (or Certificate Owner, if applicable) shall be
entitled to rely on such selection unless a majority of the Controlling Class
Certificateholders, by Certificate Balance, or such Directing Certificateholder
shall have notified the Paying Agent and each other Controlling Class
Certificateholder, in writing, of the resignation of such Directing
Certificateholder or the selection of a new Directing Certificateholder. Upon
the resignation of a Directing Certificateholder, the Paying Agent shall request
the Controlling Class Certificateholders to select a new Directing
Certificateholder.
(d) Within 30 days of the Closing Date, the Paying Agent shall
deliver to the Special Servicer and the Servicer a list of each Controlling
Class Certificateholder and the Directing Certificateholder, including names and
addresses. In addition to the foregoing, within two (2) Business Days of
receiving notice of the selection of a new Directing Certificateholder or the
existence of a new Controlling Class Certificateholder, the Paying Agent shall
notify the Servicer and the Special Servicer.
(e) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Paying Agent shall notify the related Certificateholders (through the
Depository, unless the Paying Agent shall have been previously provided with the
name and address of such Certificateholder) of such event and shall request that
it be informed of any change in the identity of the related Certificate Owner
from time to time.
(f) Until it receives notice to the contrary each of the Servicers,
the Paying Agent and the Trustee shall be entitled to rely on the most recent
notification with respect to the identity of the Controlling Class
Certificateholder, and the Directing Certificateholder.
(g) Each of the Directing Certificateholders and the Newport
Representative shall be deemed as a result of having accepted such appointment,
to keep all information obtained as a result of this Section 3.29 with respect
to each Mortgage Loan, the related Mortgagor and Mortgaged Property confidential
to the extent such information is not publicly available.
(h) [RESERVED]
(i) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Certificateholder may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Directing Certificateholder does not have any duties to the Holders of any Class
of Certificates other than the Controlling Class; (iv) the Directing
Certificateholder may take actions that favor interests of the Holders of the
Controlling Class over the interests of the Holders of one or more other Classes
of Certificates; and (v) the Directing Certificateholder shall have no liability
whatsoever for having so acted, and no Certificateholder may take any action
whatsoever against the Directing Certificateholder or any director, officer,
employee, agent or principal thereof for having so acted.
(j) In the event the Newport Mortgage Loan becomes a Specially
Serviced Mortgage Loan, the Holders (or, in the case of Book-Entry Certificates,
the Certificate Owners) of Class NC Certificates representing more than 50% of
the Class Principal Balance of the Class NC Certificates shall be entitled in
accordance with this Section 3.29 to select a representative (the "Newport
Representative") having the rights and powers specified in this Agreement or to
replace an existing Newport Representative. Upon (i) the receipt by the Paying
Agent of written requests for the selection of a Newport Representative from the
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Class NC Certificates representing more than 50% of the Class Principal Balance
of all Class NC Certificates, or (ii) the resignation or removal of the Person
acting as Newport Representative, the Paying Agent shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry Certificates, to the
extent actually known to a Responsible Officer of the Paying Agent or identified
thereto by the Depository or the Depository Participants, the Certificate
Owners) of the Class NC Certificates that they may select a Newport
Representative. Such notice shall set forth the process for selecting a Newport
Representative, which shall be the designation of the Newport Representative by
the Holders (or Certificate Owners) of Certificates representing more than 50%
of the Class Principal Balance of all Class NC Certificates by a writing
delivered to the Paying Agent. No appointment of any Person as a Newport
Representative shall be effective until such Person provides the 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).
Any Newport Representative appointed hereunder shall be automatically removed in
the event that any such Class NC Certificateholder or an Affiliate of such Class
NC Certificateholder becomes the Newport Mortgage Loan borrower under the
Newport Mortgage Loan. Except as otherwise agreed with the related Class NC
Certificateholders, no such Newport Representative shall owe any fiduciary duty
to the Trustee, the Paying Agent, the Servicer, the Special Servicer or any
Certificateholder.
(k) Within ten (10) Business Days (or as soon thereafter as
practicable if the Class NC Certificates are Book-Entry Certificates) of
receiving a request therefor from the Servicer or Special Servicer, the Paying
Agent shall deliver to the requesting party the identity of the Newport
Representative and a list of each Holder (or, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Paying Agent or identified thereto by the Depository or the Depository
Participants, each Certificate Owner) of the Class NC Certificates, including,
in each case, names and addresses. With respect to such information, the Paying
Agent shall be entitled to conclusively rely on information provided to it by
the Depository, and the Servicer and the Special Servicer shall be entitled to
rely on such information provided by the 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 Newport
Representative or any of the Holders (or, if applicable, Certificate Owners) of
the Class NC Certificates. In addition to the foregoing, within two (2) Business
Days of the selection, resignation or removal of a Newport Representative, the
Paying Agent shall notify the other parties to this Agreement of such event. The
expenses incurred by the Paying Agent in connection with obtaining information
from the Depository or Depository Participants with respect to any Book-Entry
Certificate shall be expenses of the Trust Fund payable out of the Certificate
Account pursuant to Section 3.05(a).
(l) A Newport Representative may at any time resign as such by
giving written notice to the Paying Agent and to each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Class NC Certificates. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of all
Class NC Certificates shall be entitled to remove any existing Newport
Representative by giving written notice to the Trustee and to such existing
Newport Representative.
(m) Once a Newport Representative has been selected pursuant to this
Section 3.29 each of the parties to this Agreement and each Class NC
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Class NC Certificates,
by aggregate Certificate Principal Balance, or such Newport Representative, as
applicable, shall have notified the Trustee and each other Holder (or, in the
case of Book-Entry Certificates, Certificate Owner) of the Class NC
Certificates, in writing, of the resignation or removal of such Newport
Representative.
(n) Any and all expenses of the Newport Representative shall be
borne by the Holders (or, if applicable, the Certificate Owners) of Class NC
Certificates, pro rata according to their respective Percentage Interests in
such Classes, and not by the Trust. Notwithstanding the foregoing, if a claim is
made against the Newport Representative by a Mortgagor with respect to this
Agreement or the Newport Mortgage Loan, the Newport Representative shall
immediately notify the Trustee, the Servicer and the Special Servicer, whereupon
(if the Special Servicer or the Trust Fund are also named parties to the same
action and, in the sole judgment of the Special Servicer, (i) the Newport
Representative had acted in good faith, without negligence or willful
misfeasance with regard to the particular matter, and (ii) there is no potential
for the Special Servicer or the Trust Fund to be an adverse party in such action
as regards the Newport Representative) the Special Servicer on behalf of the
Trust Fund shall, subject to Section 6.03, assume the defense of any such claim
against the Newport Representative. This provision shall survive the termination
of this Agreement and the termination or resignation of the Newport
Representative.
(o) All rights to, and requirements for, information (including the
delivery of information or access to information) provided to the Controlling
Class Representative contained herein shall also apply to the Newport
Representative with respect to information relating to the Newport Mortgage
Loan.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Paying Agent shall be deemed
to transfer the Lower-Tier 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, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates, the Class A-3 Certificates, the Class X-1 Certificates
and the Class X-2 Certificates, pro rata (based upon their respective
entitlements to interest for such Distribution Date), in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Classes of Certificates for such Distribution
Date;
(ii) second, (A) to the Holders of the Class A-1 Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount, until the outstanding Certificate Balance
of such Class has been reduced to zero, (B) after the Certificate Balance
of the Class A-1 Certificates has been reduced to zero, to the Holders of
the Class A-2 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-1 Certificates on such Distribution Date), until the outstanding
Certificate Balance of such Class has been reduced to zero and (C) after
the Certificate Balance of the Class A-2 Certificates has been reduced to
zero, to the Holders of the Class A-3 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-1 and Class A-2 Certificates on such Distribution
Date), until the outstanding Certificate Balance of such Class has been
reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates and the Class A-3 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-1, Class A-2
and Class A-3 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 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;
(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 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 and Class N Certificates on
such Distribution Date), until the outstanding Certificate Balance of the
Class NR Certificates has been reduced to zero;
(xlii) forty-second, 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
(xliii) forty-third, 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.
All distributions of interest made in respect of the Class X-1 and
Class X-2 Certificates on any Distribution Date pursuant to clause (i) above,
shall be deemed to have been made in respect of all the Components of such
Class, pro rata in accordance with the respective amounts of interest that would
be payable on such Components on such Distribution Date based on the Class X-1
Strip Rate and Class X-2 Strip Rate, as applicable, of such Component multiplied
by its Component Notional Amount, less an allocable portion of any Prepayment
Interest Shortfall, together with any amounts thereof remaining unpaid from
previous Distribution Dates.
On each Distribution Date, to the extent of the Newport Available
Distribution Amount remaining after the distributions in respect of the Newport
Senior Component pursuant to Section 4.01(j)(i)-(iii), the Paying Agent shall
distribute to the Holders of the Class NC-1 and Class NC-2 Certificates the
amounts distributed in respect of the Related Uncertificated Lower-Tier
Interests as specified in Sections 4.01(j)(iv)-(ix) and 4.01(k).
If, in connection with any Distribution Date, the Paying Agent has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional balloon payments or
unscheduled principal payments are subsequently received, the Paying Agent will
use commercially reasonable efforts to cause DTC to make the revised
distribution on a timely basis on such Distribution Date. Neither the Paying
Agent nor the Master Servicer shall be liable or held responsible for any
resulting delay in the making of such distribution to Certificateholders solely
on the basis of the actions described in the preceding section.
(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
(k) (in the case of the Class A-3 Certificates, first to the Class LA-3-1
Uncertificated Interest until reduced to zero and then the Class LA-3-2
Uncertificated Interest until reduced to zero, and in the case of the Class F
Certificates, first to the Class F-1 Uncertificated Interest until reduced to
zero and then the Class F-2 Uncertificated Interest until reduced to zero). On
each Distribution Date, each Uncertificated Lower-Tier Interest shall be deemed
to receive distributions in respect of interest in an amount equal to the
Interest Distribution Amount in respect of its Related Certificates and its
related Components of the Class X-1 Certificates and Class X-2 Certificates, in
each case to the extent actually distributable thereon as provided in Section
4.01(a). For this purpose, interest distributed on the Class X-1 Certificates
and Class X-2 Certificates shall be treated as having been paid to the
Components pro rata. Such amounts deemed 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
Distribution Amount", and shall be made by the Paying Agent by deeming such
Lower-Tier Distribution Amount to be deposited in the Upper-Tier Distribution
Account.
As of any date, the Lower-Tier Principal Amount of each
Uncertificated Lower-Tier Interest equals the Certificate Balance of the Related
Certificates with respect thereto (in the case of the Class LA-3-1 and Class
LA-3-2 Uncertificated Interests, the Class A-3 Certificates, and in the case of
the Class LF-1 and Class LF-2 Uncertificated Interests, the Class F
Certificates). 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 Distribution Amount
shall be distributed to the Holders of the Class LR Certificates in respect of
the residual interest in the Lower-Tier REMIC (but only to the extent of the
Available Distribution Amount for such Distribution Date remaining in the
Lower-Tier Distribution Account, if any).
(c) On and after the Distribution Date on which the Certificate
Balances of the Subordinate Certificates have all been reduced to zero (without
regard to any amounts of Collateral Support Deficit remaining unreimbursed), the
Principal Distribution Amount will be distributed, pro rata (based upon
Certificate Balances), among the Class A Certificates without regard to the
priorities set forth in Section 4.01(a)(ii).
(d) (i) On each Distribution Date, Yield Maintenance Charges
calculated by the Servicer by reference to a U.S. treasury rate collected during
the related Due Period (or with respect to Mortgage Loans sold by PNC Bank to
the Depositor, from but excluding the 5th day of the prior calendar month to and
including the 5th day of the related calendar month) 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 B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates
and Class G Certificates, 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 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 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 (or with respect to
Mortgage Loans sold by PNC Bank to the Depositor, from but excluding the 5th day
of the prior calendar month to and including the 5th day of the related calendar
month). Any Yield Maintenance Charge collected during the related Due Period (or
with respect to Mortgage Loans sold by PNC Bank to the Depositor, from but
excluding the 5th day of the prior calendar month to and including the 5th day
of the related calendar month) remaining after such distributions will be
distributed to the holders of the Class X-1 Certificates.
(ii) No Yield Maintenance Charge will be distributed to the holders
of the Class H, Class J, Class K, Class L, Class M, Class N, Class NR,
Class NC-1, Class NC-2, Class S or Residual Certificates. After the
Certificate Balances of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates and Class G Certificates have been reduced to zero, all Yield
Maintenance Charges with respect to the Mortgage Loans shall be
distributed to the holders of the Class X-1 Certificates.
(iii) All distributions of Yield Maintenance Charges collected
during the related Due Period that represent Yield Maintenance Charges
actually collected on the Newport Mortgage Loan shall be deemed to be
distributed from the Loan REMIC to the Lower-Tier REMIC in respect of the
Loan REMIC Senior Regular Interest (whether or not the Loan REMIC Senior
Regular Interest has received all distributions of interest and principal
to which it is entitled). 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 Lower-Tier REMIC Regular Interests, pro rata based upon the
amount of principal distributed in respect of each Class of Uncertificated
Lower-Tier Interest for such Distribution Date pursuant to Section 4.01(b)
above.
(e) On each Distribution Date, the Paying Agent shall withdraw
amounts from the Gain-on-Sale Reserve Account and shall distribute such amounts
to reimburse the Holders of the Regular Certificates (in order of alphabetical
Class designation) up to an amount equal to all Collateral Support Deficits, if
any, previously deemed allocated to them and unreimbursed after application of
the Available Distribution Amount for such Distribution Date. Any amount in the
Gain-on-Sale Reserve Account with respect to the Newport Loan shall be applied
to Collateral Support Deficits in respect of the Newport Senior Component and
Newport Subordinate Component, and any remaining amount thereof shall be deemed
distributed in respect of the Loan REMIC Residual Interest and immediately
contributed to the Lower-Tier REMIC to the portion of the Gain-on-Sale Reserve
Account held therein and applied as described in the preceding sentence. 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 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 Certificate
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 Paying Agent with wiring instructions
no less than 5 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). The final distribution on each Certificate (determined
without regard to any possible future reimbursement of Collateral Support
Deficit previously allocated to such Certificate) will be made in like manner,
but only upon presentation and surrender of such Certificate at the offices of
the Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Paying Agent, the
Trustee, the Certificate Registrar, the Depositor, the Servicer, the Special
Servicer, the Underwriters or the Placement Agents shall have any responsibility
therefor except as otherwise provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Paying Agent expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Paying Agent
shall, no later than the related P&I Advance Determination Date, mail to each
Holder on such date of such Class of Certificates a notice to the effect that:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at the
offices of the Certificate Registrar or such other location therein
specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee or the Paying Agent as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(g).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates or Class NC Certificates shall
be made in the amounts and manner specified in Section 4.01(a) to the Holders of
the respective Class otherwise entitled to distributions of interest and
principal on such Class on the relevant Distribution Date; provided, that all
distributions in reimbursement of Collateral Support Deficit previously
allocated to a Class of Certificates which has since been retired shall be to
the prior Holders that surrendered the Certificates of such Class upon
retirement thereof and shall be made by check mailed to the address of each such
prior Holder last shown in the Certificate Register. Notice of any such
distribution to a prior Holder shall be made in accordance with Section 11.05 at
such last address. The amount of the distribution to each such prior Holder
shall be based upon the aggregate Percentage Interest evidenced by the
Certificates surrendered thereby. If the check mailed to any such prior Holder
is returned uncashed, then the amount thereof shall be set aside and held
uninvested in trust for the benefit of such prior Holder, and the Paying Agent
shall attempt to contact such prior Holder in the manner contemplated by Section
4.01(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 S Certificates from the Excess Interest Distribution
Account.
(j) On each Distribution Date, the Paying Agent, in respect of the
Loan REMIC Senior Regular Interest, each Class of Loan REMIC Subordinate Regular
Interests and the Class LR Certificates, shall (except as otherwise provided in
Section 9.01), based on information provided by the Servicer and the Special
Servicer, be deemed to withdraw amounts on deposit in the Loan REMIC
Distribution Account, after payment of amounts payable from the Loan REMIC
Distribution Account in accordance with Section 3.05(b)(iii) through (viii), to
the extent related to the Newport Mortgage Loan, for the following purposes and
in the following order of priority, and shall be deemed to deposit such amounts
in the Lower-Tier Distribution Account in each case to the extent of the
remaining portion of the Newport Available Distribution Amount:
(i) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Loan REMIC Senior Regular Interest, as part of the
Available Distribution Amount for such Distribution Date, up to all
Distributable Newport Senior Component Interest for such Distribution
Date, and to the extent not previously paid, for all prior Distribution
Dates;
(ii) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Loan REMIC Senior Regular Interest, as part of the
Available Distribution Amount for such Distribution Date, up to an amount
equal to the lesser of (A) the Newport Principal Distribution Amount for
such Distribution Date, and (B) the Newport Senior Balance outstanding
immediately prior to such Distribution Date;
(iii) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Loan REMIC Senior Regular Interest, as part of the
Available Distribution Amount for such Distribution Date, as reimbursement
for any Collateral Support Deficit, if any, previously allocated to the
Loan REMIC Senior Regular Interest and for which no reimbursement has
previously been received;
(iv) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KNC-1 Uncertificated Interest, up to all
Distributable Newport Subordinate Component Interest for such Distribution
Date, and to the extent not previously paid, for all prior Distribution
Dates;
(v) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KNC-2 Uncertificated Interest, up to all
Distributable Newport Subordinate Component Interest for such Distribution
Date, and to the extent not previously paid, for all prior Distribution
Dates;
(vi) after the Loan REMIC Principal Amount of the Loan REMIC Senior
Regular Interest has been reduced to zero, as deemed distributions from
the Loan REMIC to the Lower-Tier REMIC in respect of the Class KNC-1
Uncertificated Interest, in reduction of the Loan REMIC Principal Amount
thereof, an amount equal to the Newport Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Loan REMIC Senior Regular Interest on such Distribution Date), until the
outstanding Loan REMIC Principal Amount of the Class KNC-1 Uncertificated
Interests has been reduced to zero;
(vii) after the Loan REMIC Principal Amount of the Class KNC-1
Uncertificated Interests has been reduced to zero, as deemed distributions
from the Loan REMIC to the Lower-Tier REMIC in respect of the Class KNC-2
Uncertificated Interest, in reduction of the Loan REMIC Principal Amount
thereof, an amount equal to the Newport Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Loan REMIC Senior Regular Interest and the Class KNC-1 Uncertificated
Interests on such Distribution Date), until the outstanding Loan REMIC
Principal Amount of the Class KNC-2 Uncertificated Interests has been
reduced to zero;
(viii) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KNC-1 Uncertificated Interest, in an amount
equal to, and in reimbursement of, a Collateral Support Deficit, if any,
previously allocated to the Class KNC-1 Uncertificated Interest and for
which no reimbursement has been previously received;
(ix) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KNC-2 Uncertificated Interest, in an amount
equal to, and in reimbursement of, a Collateral Support Deficit, if any,
previously allocated to the Class KNC-2 Uncertificated Interest and for
which no reimbursement has been previously received; and
(x) to make distributions to the Holders of the Class LR
Certificates in respect of the Loan REMIC Residual Interest, up to an
amount equal to the excess, if any, of (A) the aggregate distributions
made on the Newport Mortgage Loan on such Distribution Date, over (B) the
sum of (1) the aggregate distributions deemed made in respect of the Loan
REMIC Senior Regular Interest on such Distribution Date pursuant to
clauses (i), (ii) and (iii) of this Section 4.01(j) and (2) the aggregate
distributions made in respect of the Loan REMIC Subordinate Regular
Interests on such Distribution Date pursuant to clauses (iv) through (ix)
of this Section 4.01(j).
The amounts to be applied pursuant to clauses (i), (ii) and (iii)
above will be included as part of the Available Distribution Amount for the
subject Distribution Date and will be applied as described above to make
distributions on the Certificates.
(k) All distributions made in respect of any Class of Class NC
Certificates on each Distribution Date pursuant to Section 4.01(a) or Section
9.01 shall be deemed to have first been distributed from the Related
Uncertificated Lower-Tier Interests and Related Loan REMIC Regular Interests. In
each case, if such distribution on any such Class of Class NC Certificates was a
distribution of interest or principal or in reimbursement of previously
allocated Collateral Support Deficit in respect of such Class of Class NC
Certificates, then the corresponding distribution deemed to be first made on a
Related Loan REMIC Regular Interest and then on the Related Uncertificated
Lower-Tier Interest pursuant to the preceding sentence shall be deemed to also
be a distribution of interest or principal or in reimbursement of previously
allocated Collateral Support Deficits, as the case may be, in respect of the
Related Uncertificated Lower-Tier Interests and Related Loan REMIC Regular
Interests.
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s.
(a) On each Distribution Date, the Paying Agent shall forward or
make available to all of the Holders of each Class of Certificates, the Trustee,
the Underwriters, the Placement Agents, the Servicer, the Special Servicer, the
Mortgage Loan Sellers and a certain financial market publisher (which initially
shall be Bloomberg, L.P.) a statement (substantially in the form set forth as
Exhibit H hereto and based on the information supplied to the Paying Agent in
the related CMSA Investor Reporting Package (IRP) in accordance with CMSA
guidelines) as to the distributions made on such Distribution Date (each, a
"Statement to Certificateholders") setting forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to Distributable
Certificate Interest;
(iii) the aggregate amount of Advances included in the Available
Distribution Amount for such date;
(iv) the aggregate amount of compensation paid to the Trustee and
servicing compensation paid to the Servicer and the Special Servicer
during the Due Period for such Distribution Date;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans 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 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 and (D) current but specially serviced or in foreclosure but
not REO Property;
(viii)the value of any REO Property included in the Trust Fund as of
the end of the related Due Period for such Distribution Date, 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;
(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
and Class NC 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, the total Appraisal
Reduction effected in connection with such Distribution Date and the total
Appraisal Reduction Amounts as of such Distribution Date;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified during the related Due Period;
(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 during the related Due Period (or with
respect to Mortgage Loans sold by PNC to the Depositor, from but excluding
the 5th day of the prior calendar month through and including the 5th day
of the current calendar month) and the amount and the type of Principal
Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
during the related Due Period;
(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
(j);
(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;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Due Period (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, (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 and the Trustee since the preceding Distribution Date;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to the Servicer and the Trustee;
(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 and Class NC Certificates; and
(xxxi)the aggregate amount of Yield Maintenance Charges collected
during the related Due Period (or with respect to Mortgage Loans sold by
PNC to the Depositor, from but excluding the 5th day of the prior calendar
month through and including the 5th day of the current calendar month) and
the amount and the type of Principal Prepayment occurring.
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 Paying Agent shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate and, upon request, to the Trustee, 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 Paying Agent deems necessary or
desirable, or that a Certificateholder or Certificate Owner reasonably requests,
to enable Certificateholders to prepare their tax returns for such calendar
year. Such obligation of the Paying Agent shall be deemed to have been satisfied
to the extent that substantially comparable information shall be provided by the
Paying Agent pursuant to any requirements of the Code as from time to time are
in force.
On each Distribution Date, the Paying Agent shall forward to the
Depositor, to each Rating Agency, to each Holder of a Residual Certificate, to
the Servicer, to the Special Servicer, to the Trustee, to an agent designated by
the Directing Certificateholder (such agent shall initially be Bloomberg, L.P.)
and to any other party that the Depositor may designate, a copy of the Statement
to Certificateholders forwarded to the Holders of the Regular Certificates on
such Distribution Date.
The Paying Agent shall make available the Statement to
Certificateholders through its home page on the internet. The Paying Agent
hereby acknowledges and agrees that its home page as of the date hereof is
located at "xxx.xxxxxxxx.xxx" on the world wide web. In addition, if the
Depositor so directs the Paying Agent, and on terms acceptable to the Paying
Agent, the Paying Agent shall make certain other information and reports related
to the Mortgage Loans available through its home page.
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 that require delivery of a
paper or other form of hardcopy except as set forth herein. In connection with
providing access to the Servicer's Internet website, the Servicer shall take
reasonable and customary measures to ensure that only such parties permitted to
review such information under the terms of this Agreement may access such
information including, without limitation, requiring registration and acceptance
of a disclaimer. The Servicer shall not be liable for dissemination of this
information in accordance with this Agreement, provided that such information
otherwise meets the requirements set forth herein with respect to the form and
substance of such information or reports. The Servicer shall be entitled to
attach to any report provided pursuant to this subsection, any reasonable
disclaimer with respect to information provided, or any assumptions required to
be made by such report. Notwithstanding anything herein to the contrary, the
Servicer may, at its sole cost and expense, make available by electronic media,
bulletin board service or internet website any reports or other information the
Servicer is required or permitted to provide to any Mortgagor with respect to
such Mortgagor's Mortgage Loan to the extent such action does not conflict with
the terms of this Agreement, the terms of the Mortgage Loans or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Servicer) provide the Servicer with such
information in its possession regarding the Specially Serviced Mortgage Loans
and REO Properties as may be necessary for the Servicer to prepare each report
and any supplemental information to be provided by the Servicer to the Paying
Agent. Neither the Paying Agent nor the Depositor shall have any obligation to
recompute, verify or recalculate the information provided thereto by the
Servicer. Unless the Paying Agent has actual knowledge that any report or file
received from the Servicer contains erroneous information, the Paying Agent is
authorized to rely thereon in calculating and making distributions to
Certificateholders in accordance with Section 4.01, preparing the statements to
Certificateholders required by Section 4.02(a) and allocating Collateral Support
Deficit to the Certificates in accordance with Section 4.04.
Notwithstanding the foregoing, the failure of the Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to Article III, this Section 4.02(b) or Section 4.02(c) shall not
constitute a breach of Article III, this Section 4.02(b) or of Section 4.02(c)
to the extent the Servicer or the Special Servicer so fails because such
disclosure, in the reasonable belief of the Servicer or the Special Servicer, as
the case may be, would violate any applicable law or any provision of a Mortgage
Loan document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties. The Servicer or the Special Servicer may
affix to any information provided by it any disclaimer it deems appropriate in
its reasonable discretion (without suggesting liability on the part of any other
party hereto).
(c) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Paying Agent shall provide the
requesting Certificateholder with such information that is in the Paying Agent's
possession or can reasonably be obtained by the Paying Agent as is requested by
such Certificateholder, for purposes of satisfying applicable reporting
requirements under Rule 144A under the Securities Act. Neither the Certificate
Registrar, the Paying Agent nor the Trustee shall have any responsibility for
the sufficiency under Rule 144A or any other securities laws of any available
information so furnished to any person including any prospective purchaser of a
Certificate or any interest therein, nor for the content or accuracy of any
information so furnished which was prepared or delivered to them by another. In
addition, pursuant to Section 8.12(b), the Paying Agent shall provide a
financial market publisher (which shall initially be Bloomberg, L.P.) certain
current information with respect to the Mortgaged Properties as set forth on
Schedule I hereto.
(d) The Paying Agent shall file with the Commission, in respect of
the Trust Fund, the Uncertificated Lower-Tier Interests and the Certificates,
copies of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act (including Statement to
Certificateholders issued pursuant to Section 4.02(a) by means of a Current
Report on Form 8-K and an Annual Report on Form 10-K). The Servicer and the
Special Servicer agree to provide the Paying Agent with such information in a
timely fashion as may be reasonably requested by the Paying Agent in connection
with such Exchange Act reports. In the event that the Depositor determines that
electronic filing through the XXXXX System is required for any reports, the
Depositor may either (x) request that the Paying Agent process such filing or
(y) cause the filing to be processed by the Depositor or its designee upon
receipt from the Paying Agent of the reports, documents and other information
described above. Notwithstanding the foregoing, the Depositor shall file with
the Commission, within fifteen days after the Closing Date, a Current Report on
Form 8-K together with this Agreement.
Section 4.03 P&I Advances.
(a) On or before 1:00 p.m., New York City time, on each P&I Advance
Date, the Servicer shall either (i) remit to the Paying Agent for deposit into
the Lower-Tier Distribution Account (or the Loan REMIC Distribution Account in
the case of the Newport Mortgage Loan) 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 and the Paying Agent of (i) the aggregate
amount of P&I Advances for a Distribution Date and (ii) the amount of any
Nonrecoverable P&I Advances for such Distribution Date, on or before 2 Business
Days prior to such Distribution Date. If the Servicer fails to make a required
P&I Advance by 1:00 p.m., New York City time, on any P&I Advance Date, an Event
of Default as set forth in clause (a)(i) of Section 7.01 shall occur and the
Trustee shall make such P&I Advance pursuant to Section 7.05 by noon, New York
City time, on the related Distribution Date, unless the Servicer shall have
cured such failure (and provided written notice of such cure to the Trustee and
the Paying Agent) by 10:00 a.m. on such Distribution Date. In the event that the
Servicer fails to make a required P&I Advance hereunder, the Paying Agent shall
notify the Trustee of such circumstances by 1:30 p.m. (New York City time) on
the related P&I Advance Date.
(b) Subject to Section 4.03(c) and (e) below, the aggregate amount
of P&I Advances to be made by the Servicer with respect to any Distribution Date
shall equal the aggregate of: (i) all Monthly Payments (in each case, net of
related Servicing Fees) other than Balloon Payments, that were due during the
related Due Period and delinquent (without regard to any grace period) as of the
close of business on the related Determination Date (or for which the related
Due Date did not occur prior to the related Determination Date and such Monthly
Payment is unpaid) 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 close of business on the related Determination Date
(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 with respect thereto are to be distributed.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account or the Newport Collection Account, as applicable, pursuant
to Section 3.05(a), the Servicer shall be entitled to pay the Trustee and itself
(in that order of priority) as the case may be out of any amounts then on
deposit in the Certificate Account, interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of such P&I Advance from the date made
to but not including the date of reimbursement; provided however, that no
interest shall accrue on any P&I Advance made with respect to a Mortgage Loan
(i) until after the related Due Date has passed and any applicable grace period
has expired, (ii) with respect to any other Mortgage Loan whose Monthly Payment
is received by the P&I Advance Date or (iii) for the period from and including
the Determination Date to and including the P&I Advance Date. The Servicer shall
reimburse itself or the Trustee, as the case may be, for any outstanding P&I
Advance as soon as practicably possible after funds available for such purpose
are deposited in the Certificate Account.
(e) Notwithstanding the foregoing, (i) neither the Servicer nor the
Trustee shall make an advance for Balloon Payments, Excess Interest, Yield
Maintenance Charges or Penalty Charges and (ii) the amount required to be
advanced in respect of delinquent Monthly Payments or Assumed Scheduled Payments
on Mortgage Loans that have been subject to an Appraisal Reduction Event will
equal, with respect to any Distribution Date and any Mortgage Loan, the amount
that would be required to be advanced by the Servicer without giving effect to
the Appraisal Reduction less any Appraisal Reduction Amount with respect to such
Mortgage Loan for such Distribution Date.
Section 4.04 Allocation of Collateral Support Deficit.
(a) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the Paying
Agent shall calculate the amount, if any, by which (i) the aggregate Stated
Principal Balance 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 or Class NC
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 or
Class NC 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 or Class NC 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.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates or Class NC 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 (i) to the extent attributable to the Newport
Mortgage Loan, first, to the Class NC-2 Certificates; second to the Class NC-1
Certificates, until the remaining Certificate Balance of each such Class of
Certificate has been reduced to zero; then (ii) any other Collateral Support
Deficit or any such Collateral Support Deficit with respect to the Newport
Mortgage Loan remaining after the allocations in clause (i), among the
respective Classes of Certificates as follows: first, to the Class NR
Certificates; second, to the Class N Certificates; third, to the Class M
Certificates; fourth, to the Class L Certificates; fifth, to the Class K
Certificates; sixth, to the Class J Certificates; seventh, to the Class H
Certificates; eighth, to the Class G Certificates; ninth, to the Class F
Certificates; tenth, to the Class E Certificates; eleventh, to the Class D
Certificates; twelfth, to the Class C Certificates, thirteenth, to the Class B
Certificates, in each case, until the remaining Certificate Balance of each such
Class of Certificates has been reduced to zero and fourteenth, to the Class A-1
Certificates, the Class A-2 Certificates and the Class A-3 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 pursuant to Section 4.04(a) with respect to such Distribution
Date shall reduce the Lower-Tier Principal Amount of the Related Uncertificated
Lower-Tier Interests as a write-off and shall be allocated among the
Uncertificated Lower-Tier Interests in the same priority as the Class of Related
Certificates; provided, that with respect to Collateral Support Deficits
allocated to (A) the Class A-3 Certificates, such corresponding reduction shall
be deemed to be a reduction with respect to the Class LA-3-1 Uncertificated
Interest until its Lower-Tier Principal Amount is reduced to zero, then to the
Class LA-3-2 Uncertificated Interest until its Lower-Tier Principal Amount is
reduced to zero, and (B) the Class F Certificates, such corresponding reduction
shall be deemed to be a reduction with respect to Class LF-1 Uncertificated
Interest until its Lower-Tier Principal Amount is reduced to zero, then to the
Class LF-2 Uncertificated Interest until its Lower-Tier Principal Amount is
reduced to zero, pursuant to Section 4.04(a).
(d) The Collateral Support Deficit allocable to the Newport Mortgage
Loan shall be the amount by which the Stated Principal Balance of the Newport
Mortgage Loan exceeds the sum of the Newport Senior Balance and the Newport
Subordinate Balance, and shall be allocated, first to the Class KNC-2
Uncertificated Interest; second to the Class KNC-1 Uncertificated Interest; and
third to the Loan REMIC Senior Regular Interest, in each case in reduction of
the Loan REMIC Principal Amount thereof, until such Loan REMIC Principal Amount
has been reduced to zero.
Section 4.05 Appraisal Reductions.
The aggregate Appraisal Reduction will be allocated by the Paying
Agent on each Distribution Date, only for purposes of determining the amount of
P&I Advances with respect to the related Mortgage Loan, to the Certificate
Balance of the Class NR, Class 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 Newport Mortgage Loan, such Appraisal Reduction will
be applied, prior to any application of such Appraisal Reduction to the Newport
Senior Component, first to the Class NC-2 Certificates, second to the Class NC-1
Certificates, and then to the Regular Certificates in respect of the Newport
Senior Component in the priority set forth in the first sentence of this Section
4.05.
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
Majority Mortgage Loans and the Newport Senior Component for the Due Dates
occurring in the related Due Period allocated to such Class of Certificates or
Newport Senior Component, such Mortgage Deferred Interest to be allocated first
to the Class NR Certificates, second to the Class N Certificates, third to the
Class M Certificates, fourth to the Class L Certificates, fifth to the Class K
Certificates, sixth to the Class J Certificates, seventh to the Class H
Certificates, eighth to the Class G Certificates, ninth to the Class F
Certificates, tenth to the Class E Certificates, eleventh to the Class D
Certificates, twelfth to the Class C Certificates, thirteenth to the Class B
Certificates, and fourteenth, pro rata (based upon Accrued Certificate
Interest), to the Class A-1, Class A-2 and Class A-3 Certificates, in each case
up to the respective Accrued Certificate Interest for each such Class of
Certificates for such Distribution Date. On each Distribution Date, the amount
of interest distributable to the Class NC Certificates shall be reduced by an
amount equal to the amount of Mortgage Deferred Interest for the Newport
Mortgage Loan for the Due Date occurring in the related Due Period allocated to
such Class of Certificates, such Mortgage Deferred Interest to be allocated
first to the Class NC-2 Certificates, second to the Class NC-1 Certificates, and
third to the Newport Senior Component, which will be allocated to the Regular
Certificates in the priority set forth in the preceding sentence.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1, Class A-2, Class A-3, 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, Class NC-1 and
Class NC-2 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. Certificate Deferred Interest allocated
to the Class A-3 Certificates will be allocated, first, to the Class LA-3-2
Uncertificated Interest and, second, to the Class LA-3-1 Uncertificated
Interest, and Certificate Deferred Interest allocated to the Class F
Certificates will be allocated, first, to the Class F-2 Uncertificated Interest
and, second, to the Class F-1 Uncertificated Interest; provided that no such
allocation shall be made in respect of the portion of such interest
repre`senting the related X-1 Strip Rate or Class X-2 Strip Rate.
(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 and, if applicable to the Related Loan REMIC Regular Interest
with respect thereto. On each Distribution Date, to the extent provided in
Section 4.06(b), Certificate Deferred Interest will be added to the Lower-Tier
Principal Amount of the Uncertificated Lower-Tier Interests and, if applicable,
the Loan REMIC Principal Amount of the Loan REMIC Regular Interests in the same
manner as the interest thereon was reduced pursuant to the preceding sentence.
(d) Any Mortgage Deferred Interest for the Newport Mortgage Loan
shall be allocated in reduction of the amount of interest distributable to, and
will be added to the Loan REMIC Principal Amount of, the Loan REMIC Regular
Interests, first, to the Class KNC-2 Uncertificated Interest; second, to the
Class KNC-1 Uncertificated Interest; and third, to the Loan REMIC Senior Regular
Interest.
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 Collection 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 Loan REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC) shall be
conducted so as to qualify such portion as a "grantor trust" under the Code, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Paying Agent shall file or cause to be filed
with the Internal Revenue Service together with Form 1041 or such other form as
may be applicable and shall furnish or cause to be furnished, to the Class S
Certificateholders, the amount of Excess Interest allocable to the Mortgage
Loans received, on the cash or accrual method of accounting, as applicable, in
each case, at the time or times and in the manner required by the Code.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as 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 S, Class R and Class LR Certificates will each be issuable
in one or more Definitive Certificate substantially in the form of Certificates
of each Class and with such applicable legends as are set forth in the Exhibits
hereto corresponding to such Class. Each Certificate will share ratably in all
rights of the related Class. The Class X Certificates will be issuable only in
minimum Denominations of authorized Original Notional Amount of not less than
$1,000,000 and in integral multiples of $1.00 in excess thereof. The Offered
Certificates (other than the Class X Certificates) will be issuable only in
minimum Denominations of authorized initial Certificate Balance of not less than
$10,000, and in integral multiples of $1.00 in excess thereof. The
Non-Registered Certificates (other than the Class S and Residual Certificates)
will be issuable in minimum Denominations of authorized initial Certificate
Balance of not less than $250,000, and in integral multiples of $1.00 in excess
thereof. If the Original Certificate Balance or Original Notional Amount, as
applicable, of any Class does not equal an integral multiple of $1.00, then a
single additional Certificate of such Class may be issued in a minimum
denomination of authorized initial Certificate Balance or Original Notional
Amount, as applicable, that includes the excess of (i) the Original Certificate
Balance or Original Notional Amount, as applicable, of such Class over (ii) the
largest integral multiple of $1.00 that does not exceed such amount. The Class
S, 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 Original
Notional Amount, as applicable, and (iii) be in an authorized denomination, as
set forth above. The Book-Entry Certificates will be issued as one or more
certificates registered in the name of a nominee designated by the Depository,
and Certificate Owners will hold interests in the Book-Entry Certificates
through the book-entry facilities of the Depository in the minimum Denominations
and aggregate Denominations as set forth in the above. No Certificate Owner of a
Book-Entry Certificate of any Class thereof will be entitled to receive a
Definitive Certificate representing its interest in such Class, except as
provided in Section 5.03 herein. Unless and until Definitive Certificates are
issued in respect of a Class of Book-Entry Certificates, beneficial ownership
interests in such Class of Certificates will be maintained and transferred on
the book-entry records of the Depository and Depository Participants, and all
references to actions by Holders of such Class of Certificates will refer to
action taken by the Depository upon instructions received from the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures and, except as otherwise set forth
herein, all references herein to payments, notices, reports and statements to
Holders of such Class of Certificates will refer to payments, notices, reports
and statements to the Depository or its nominee as the registered Holder
thereof, for distribution to the related registered Holders of Certificates
through the Depository Participants in accordance with the Depository's
procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized officer.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized officers 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 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
is hereby initially appointed Authenticating Agent with power to act on the
Trustee's behalf in the authentication and delivery of the Certificates in
connection with transfers and exchanges as herein provided. If LaSalle Bank
National Association, located at 000 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
is removed as Paying Agent, 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.
(c) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
LaSalle Bank National Association, located at 000 X. XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, 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 Paying 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. If LaSalle Bank, National Association, resigns or is removed as
Paying Agent, the Trustee shall immediately succeed to its predecessor's duties
as Certificate Registrar. The Depositor, the Trustee, the Servicer and the
Special Servicer shall have the right to inspect the Certificate Register or to
obtain a copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in the
Certificate Register. The names and addresses of all Certificateholders and the
names and addresses of the transferees of any Certificates shall be registered
in the Certificate Register; provided, however, in no event shall the
Certificate Registrar be required to maintain in the Certificate Register the
names of Certificate Owners. The Person in whose name any Certificate is so
registered shall be deemed and treated as the sole owner and Holder thereof for
all purposes of this Agreement and the Certificate Registrar, the Servicer, the
Trustee, the Paying Agent, the Special Servicer and any agent of any of them
shall not be affected by any notice or knowledge to the contrary. A Definitive
Certificate is transferable or exchangeable only upon the surrender of such
Certificate to the Certificate Registrar at its office maintained at 000 X.
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 2001-C1 (the
"Registrar Office") together with an assignment and transfer (executed by the
Holder or his duly authorized attorney). Subject to the requirements of Sections
5.02(b), (c) and (d), the Certificate Registrar shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in Denominations of a
like aggregate Denomination as the Definitive Certificate being surrendered.
Such Certificates shall be delivered by the Certificate Registrar in accordance
with Section 5.02(e). Each Certificate surrendered for registration of transfer
shall be canceled, and the Certificate Registrar shall hold such canceled
Certificates in accordance with its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof) is to be made in reliance upon an exemption
from the Securities Act, and under the applicable state securities laws, then:
(i) RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S BOOK-ENTRY
CERTIFICATE DURING THE RESTRICTED PERIOD. If, during the Restricted
Period, a Beneficial 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 Beneficial 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 5.2(b)(i). Upon receipt by the Certificate
Registrar at its Corporate Trust Office of (1) written instructions given
in accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial interest, and
(3) a certificate in the form of Exhibit K hereto given by the Beneficial
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, to 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
to 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 Beneficial 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 5.2(b)(ii). Upon
receipt by the Certificate Registrar at its Corporate Trust Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in the Regulation S Book-Entry
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository Participant
(and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the form
of Exhibit N hereto given by the Beneficial Owner that is transferring
such interest, the Certificate Registrar shall instruct the Depository or
the Certificate Custodian, as applicable, to 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, to 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 to 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 Beneficial Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the transfer
of such beneficial interest for an equivalent beneficial interest in the
Rule 144A Book-Entry Certificate only upon compliance with the provisions
of this Section 5.2(b)(iii). Upon receipt by the Certificate Registrar at
its Corporate Trust Office of (1) written instructions given in accordance
with the Applicable Procedures from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Rule 144A Book-Entry Certificate in an amount equal to the Denomination of
the beneficial interest in the Regulation S Book-Entry Certificate to be
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for
such beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate (i)
during the Restricted Period, a certificate in the form of Exhibit O
hereto given by the Beneficial 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 to 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 Beneficial 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 Beneficial 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 5.2(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Corporate Trust Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate in an amount equal to the Denomination of the
beneficial interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Depository Participant to be credited with, and the
account of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be debited for, such beneficial interest and (3) a
certificate in the form of Exhibit P hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
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 5.2(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 an
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) an opinion of counsel acceptable to
the Certificate Registrar that such transfer is in compliance with
the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer or a Regulation S
Investor wishing to take delivery in the form of a Definitive
Certificate will be registered by the Certificate Registrar only
upon compliance with the provisions of Section 5.2(b)(i) through
(iv) and if the transferor has provided the Certificate Registrar
with a Regulation S Transfer Certificate.
(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 5.2(b)(vi). Upon receipt by the Certificate
Registrar at the Corporate Trust Office of (1) the Definitive Certificate
to be transferred with an assignment and transfer pursuant to Section
5.2(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.
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 5.2 and in accordance with the rules of the
Depository and Applicable Procedures.
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 CLASS S OR 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) 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 CLASS S OR
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 CLASS S OR
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 by any Holder 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 G 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)
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 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 result in
the assets of the Trust Fund being deemed to be "plan assets" and subject to the
fiduciary responsibility provisions of ERISA, the prohibited transaction
provisions of the Code or the provisions of any Similar Law, will not constitute
or result in a "prohibited transaction" within the meaning of ERISA, Section
4975 of the Code or any Similar Law, and will not subject the Trustee, the
Certificate Registrar, the Servicer, the Special Servicer, the Paying Agent, the
Underwriters, the Placement Agents or the Depositor to any obligation or
liability (including obligations or liabilities under ERISA, Section 4975 of the
Code or any such Similar Law) in addition to those set forth in the Agreement.
The Certificate Registrar shall not register the sale, transfer, pledge or other
disposition of any ERISA Restricted Certificate unless the Certificate Registrar
has received either the representation letter described in clause (i) above or
the Opinion of Counsel described in clause (ii) above. The costs of any of the
foregoing representation letters or Opinions of Counsel shall not be borne by
any of the Depositor, the Servicer, the Special Servicer, the Trustee, the
Paying Agent, the Underwriters, the Placement Agents, the Certificate Registrar
or the Trust Fund. Each Certificate Owner of an ERISA Restricted Certificate
shall be deemed to represent that it is not a Person specified in clauses (a) or
(b) above. Any transfer, sale, pledge or other disposition of any ERISA
Restricted Certificates that would constitute or result in a prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law, or would
otherwise violate the provisions of this Section 5.02(c) shall be deemed
absolutely null and void ab initio, to the extent permitted under applicable
law.
So long as any of the Class of Certificates remains outstanding, the
Servicer or the Special Servicer, as applicable, will make available, or cause
to be made available, upon request, to any Holder and any Person to whom any
such Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Servicer, the Special Servicer or the Mortgage Loans necessary to
the provision of an Opinion of Counsel described in this Section 5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Paying Agent under
clause (ii) below to deliver payments to a Person other than such Person.
The rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan (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(d) 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(d), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
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(d) or for making any payments due on
such Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement; 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(d)(i)(C) above or is not a Permitted Transferee.
(iii) The Paying Agent shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, upon written
request of the Trustee, 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 B, Class C, Class D or Class E 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 notice to the Trustee,
the Servicer, the Special Servicer, the Paying Agent and the Depositor of each
transfer of a Certificate on its books and records and to provide each such
Person with an updated copy of the Certificate Register on or about January 1st
and July 1st of each year, commencing January 1, 2001.
(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(e) above or subsection (c) below, shall not be entitled
to Definitive Certificates in respect of such Ownership Interests. All transfers
by Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate Owner.
Each Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures.
(b) The Trustee, the Servicer, the Special Servicer, the Paying
Agent, the Depositor and the Certificate Registrar may for all purposes,
including the making of payments due on the Book-Entry Certificates, deal with
the Depository as the authorized representative of the Certificate Owners with
respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Paying Agent may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee, the Paying Agent
and the Certificate Registrar in writing that the Depository is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Certificates and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee, the Paying
Agent and the Certificate Registrar in writing that it elects to terminate the
book-entry system through the Depository, the Paying Agent shall notify the
affected Certificate Owners, through the Depository with respect to all, any
Class or any portion of any Class of the Certificates or (iii) the Trustee
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 Paying Agent, the Servicer, the Trustee, the Special
Servicer, the Authenticating Agent and the Certificate Registrar shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates for purposes of evidencing ownership of any Class of
Certificates, the registered Holders of such Definitive Certificates shall be
recognized as Certificateholders hereunder and, accordingly, shall be entitled
directly to receive payments on, to exercise Voting Rights with respect to, and
to transfer and exchange such Definitive Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or if the Special Servicer or the
Servicer, on the Trustee's behalf, has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under the
Certificates, and the Trustee has been advised by counsel that in connection
with such proceeding it is necessary or appropriate for the Trustee to obtain
possession of all or any portion of the Certificates evidenced by Book-Entry
Certificates, the Trustee may in its sole discretion determine that such
Certificates shall no longer be represented by such Book-Entry Certificates. In
such event, the Certificate Registrar will execute, the Authenticating Agent
will authenticate and the Certificate Registrar will deliver, in exchange for
such Book-Entry Certificates, Definitive Certificates in a Denomination equal to
the aggregate Denomination of such Book-Entry Certificates to the party so
requesting such Definitive Certificates; provided, that a Regulation S
Book-Entry Certificate may only be exchanged for a Definitive Certificate (i)
after the Release Date and (ii) upon delivery of a certificate to the
Certificate Registrar to the effect that the person assigning the interest in
such Certificate is a not a U.S. person and that such person acquired the
Certificates outside the United States or is a U.S. person who purchased the
certificates in a transaction that did not require registration under the
Securities Act. In such event, the Certificate Registrar shall notify the
affected Certificate Owners and make appropriate arrangements for the
effectuation of the purpose of this clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Applicable Procedures, Section 5.02(b) and
this Section 5.03(g). Upon receipt by the Certificate Registrar at the Registrar
Office of (i) the Definitive Certificate to be transferred with an assignment
and transfer pursuant to Section 5.02(a) and all required items pursuant to
Section 5.02(b)(v), the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered in the
name of the Holder or the Holder's transferee (as instructed by the Holder), and
the Certificate Registrar, as custodian of the Book-Entry Certificates shall
increase the Denomination of the related Book-Entry Certificate by the
Denomination of the Definitive Certificate to be so transferred, and credit or
cause to be credited to the account of the Person specified in such instructions
a corresponding Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Paying Agent, the Certificate Registrar and any agents of any of them may treat
the person in whose name such Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever, except as and to the extent provided in
the definition of "Certificateholder," and none of the Depositor, the Servicer,
the Special Servicer, the Trustee, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d).
Section 5.06 Appointment of Paying Agent.
(a) LaSalle Bank National Association, located at 000 X. XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, is hereby initially appointed Paying Agent to
act on the Trustee's behalf in accordance with the terms of this Agreement. If
the Paying Agent resigns or is terminated, the Trustee shall appoint a successor
Paying Agent which may be the Trustee or an Affiliate thereof to fulfill the
obligations of the Paying Agent hereunder which must be rated "A" or otherwise
be acceptable to the Rating Agencies, as evidenced by a written confirmation
that such appointment will not cause the downgrade, withdrawal or qualification
of the then current ratings of any Class of Certificates.
(b) The Paying Agent may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(c) The Paying Agent, at the expense of the Trust Fund (but only if
such amount constitutes "unanticipated expenses of the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii)), may consult with counsel
and the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance therewith.
(d) The Paying Agent shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
(e) The Paying Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Paying Agent of its duties or obligations
hereunder.
(f) The Paying Agent shall not be responsible for any act or
omission of the Trustee, the Servicer or the Special Servicer or of the
Depositor.
Section 5.07 Beneficial Ownership Certification.
To the extent that under the terms of this Agreement, it is
necessary to determine whether any person is a Beneficial Owner, the Paying
Agent shall make such determination based on a certificate of such person which
shall be addressed to the Paying Agent and shall specify, in reasonable detail
satisfactory to the Paying Agent, such person's name and address, the Class and
Certificate Principal 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 "Beneficial Ownership Certification"); provided, however, that the
Paying Agent shall not knowingly recognize such person as a Beneficial 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 Beneficial
Owner is in direct conflict with information obtained by the Paying Agent form
the Clearing Agency or any Clearing Agency Participant with respect to the
identity of a Beneficial Owner; provided, however that to the extent the Paying
Agent is required to obtain such Beneficial Owner information from the Clearing
Agency or any Clearing Agency Participant, the Paying Agent shall be reimbursed
for any cost or expense in obtaining such information from the Distribution
Account. The Paying Agent may conclusively rely on such Beneficial Ownership
Certification. The Servicer will only be required to acknowledge the status of
any Person as a Certificateholder or Beneficial Owner to the extent that the
Paying Agent, at the request of the Servicer, identifies such Person as a
Certificateholder or Beneficial Owner.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE
SERVICER, THE SPECIAL SERVICER AND THE DIRECTING
CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Servicer and the
Special Servicer.
The Depositor, the Servicer and the Special Servicer shall be liable
in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicer and the
Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Servicer or the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the Servicer and
the Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) The Depositor, the Servicer and the Special Servicer each may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets (which may be limited to all or substantially all of its
assets related to commercial mortgage loan servicing) to any Person , in which
case any Person resulting from any merger or consolidation to which the
Depositor, the Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business of the Depositor, the Servicer or the Special
Servicer, shall be the successor of the Depositor, the Servicer and the Special
Servicer, as the case may be, hereunder, without the execution or filing of any
paper (other than an assumption agreement wherein the successor shall agree to
perform the obligations of and serve as the Depositor, the Servicer or the
Special Servicer, as the case may be, in accordance with the terms of this
Agreement) or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that such merger,
consolidation or succession will not result in a withdrawal, downgrading or
qualification of the then-current ratings of the Classes of Certificates that
have been so rated (as evidenced by a letter to such effect from each Rating
Agency).
Section 6.03 Limitation on Liability of the Depositor, the Servicer,
the Special Servicer and Others.
(a) None of the Depositor, the Servicer, the Special Servicer or any
of the directors, officers, employees or agents of any of the foregoing shall be
under any liability to the Trust or the Certificateholders 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 in good
faith on any document of any kind which, prima facie, is properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the 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, or the
Certificates, other than any loss, liability or expense: (i) specifically
required to be borne thereby pursuant to the terms hereof; (ii) incurred in
connection with any breach of a representation or warranty made by it herein;
(iii) incurred by reason of bad faith, willful 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.
(b) None of the Depositor, the Servicer and the Special Servicer
shall be under any obligation to appear in, prosecute or defend any legal or
administrative action (whether in equity or at law), proceeding, hearing or
examination that is not incidental to its respective duties under this Agreement
or which in its opinion may involve it in any expense or liability not
recoverable from the Trust Fund; provided, however, that the Depositor, the
Servicer or the Special Servicer may in its discretion undertake any such
action, proceeding, hearing or examination that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action, proceeding, hearing or examination and
any liability resulting therefrom shall be expenses, costs and liabilities of
the Trust Fund, and the Depositor, the Servicer and the Special Servicer shall
be entitled to be reimbursed therefor out of amounts attributable to the
Mortgage Loans on deposit in the Certificate Account as provided by Section
3.05(a).
(c) Each of the Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trustee, the Paying Agent and the Trust and any
director, officer, employee or agent thereof, and hold them harmless, from and
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that any of them may sustain arising from or as a result of any
willful misfeasance, bad faith or negligence of the Servicer or the Special
Servicer, as the case may be, in the performance of its obligations and duties
under this Agreement or by reason of negligent disregard by the Servicer or the
Special Servicer, as the case may be, of its duties and obligations hereunder or
by reason of breach of any representations or warranties made herein; provided,
that such indemnity shall not cover indirect or consequential damages. The
Trustee, the Paying Agent or the Depositor, as the case may be, shall
immediately notify the Servicer or the Special Servicer, as applicable, if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans entitling the Trust to indemnification hereunder, whereupon the Servicer
or the Special Servicer, as the case may be, shall assume the defense of such
claim (with counsel reasonably satisfactory to the Trustee, the Paying Agent or
the Depositor) and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. Any failure to so notify
the Servicer or the Special Servicer, as the case may be, shall not affect any
rights any of the foregoing Persons may have to indemnification under this
Agreement or otherwise, unless the Servicer's, or the Special Servicer's, as the
case may be, defense of such claim is materially prejudiced thereby.
(d) Each of the Trustee and the Paying Agent agrees to indemnify the
Servicer and the Special Servicer and any director, officer, employee or agent
thereof, and hold them harmless, from and against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses that any of them
may sustain arising from or as a result of any willful misfeasance, bad faith or
negligence of the Trustee or Paying Agent, as the case may be, in the
performance of its obligations and duties under this Agreement or by reason of
negligent disregard by the Trustee or Paying Agent, 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. Servicer or the Special Servicer, as the case
may be, shall immediately notify the Trustee or Paying Agent, as applicable, if
a claim is made by a third party with respect to this Agreement, whereupon the
Trustee or Paying Agent, as the case may be, shall assume the defense of such
claim (with counsel reasonably satisfactory to the Servicer or the Special
Servicer) and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Trustee or Paying Agent, 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 Trustee's or Paying Agent's, as the case may be, 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. Servicer or the Special Servicer, as the case may be,
shall immediately notify the Depositor if a claim is made by a third party with
respect to this Agreement, whereupon the Depositor shall assume the defense of
such claim (with counsel reasonably satisfactory to the Servicer or the Special
Servicer) and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Depositor shall not affect any rights any of the foregoing Persons may have
to indemnification under this Agreement or otherwise, unless the Depositor's
defense of such claim is materially prejudiced thereby.
(f) The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of the
Servicer, the Trustee, the Paying Agent and the Special Servicer.
Section 6.04 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. 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. 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 otherwise meets the
requirements set forth herein.
Section 6.05 Rights of the Depositor, the Paying Agent and Trustee
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 Rating Agency Fees.
The Depositor shall pay, from its own funds, the annual fees of each
Rating Agency.
Section 6.07 The Directing Certificateholder.
The Directing Certificateholder (or with respect to the Newport
Mortgage Loan, the Newport Representative in consultation with the Directing
Certificateholder) shall be entitled to advise the Special Servicer with respect
to the following actions of the Special Servicer with respect to any Mortgage
Loan, and notwithstanding anything herein to the contrary, except as set forth
in, and in any event subject to, the second paragraph of this Section 6.07, the
Special Servicer shall not be permitted to take any of the following actions as
to which the Directing Certificateholder (or with respect to the Newport
Mortgage Loan, the Newport Representative in consultation with the Directing
Certificateholder) has objected in writing within 5 Business Days of having
received the Special Servicer's written recommendation and all information and
documents the Directing Certificateholder may reasonably request (provided that
if such written objection has not been received by the Special Servicer within
such 5 Business Day period, then the Directing Certificateholder (or with
respect to the Newport Mortgage Loan, the Newport Representative in consultation
with the Directing Certificateholder) will be deemed to have waived its right to
object):
(i) any proposed foreclosure upon or comparable conversion (which
may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification of a monetary term of a 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 acceptance of substitute or additional collateral for a
Mortgage Loan other than pursuant to the specific terms of the related
Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Mortgage Loan;
(vii) any management company changes or franchise changes with
respect to a Mortgage Loan for which the Servicer is required to consent
or approve;
(viii) releases of any escrows, reserves or letters of credit held
as performance or "earn-out" reserves or escrows; and
(ix) any acceptance of an assumption agreement releasing a borrower
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan;
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole), the Special Servicer may take any such action without waiting
for the Directing Certificateholder's (or with respect to the Newport Mortgage
Loan, the Newport Representative's) response.
In addition, the Directing Certificateholder (or with respect to the
Newport Mortgage Loan, the Newport Representative in consultation with the
Directing Certificateholder) may direct the Special Servicer to take, or to
refrain from taking, such other actions with respect to a Specially Serviced
Mortgage Loan as the Directing Certificateholder (or with respect to the Newport
Mortgage Loan, the Newport Representative in consultation with 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 Paying Agent, 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.
Notwithstanding the foregoing, in the event the Directing
Certificateholder and the Newport Representative do not agree on a course of
action with respect to the Newport Mortgage Loan, the determination of the
Newport Representative shall control.
Any costs and expenses incurred by the Special Servicer in obtaining
such consent will be borne by the Directing Certificateholder. In the event the
Special Servicer determines that a refusal to consent by the Directing
Certificateholder or the Newport Representative or any advice from the Directing
Certificateholder or the Newport Representative would otherwise cause the
Special Servicer to violate the terms of this Agreement, including without
limitation, the Servicing Standards, the Special Servicer shall disregard such
refusal to consent or advice and notify the Directing Certificateholder, the
Trustee and the Rating Agencies of its determination, including a reasonably
detailed explanation of the basis therefor.
The Directing Certificateholder shall have no liability to the Trust
Fund or the Certificateholders for any action taken, or for refraining from the
taking of any action, or for errors in judgment; provided, however, that the
Directing Certificateholder shall not be protected against any liability to the
Controlling Class Certificateholder which would otherwise be imposed by reason
of willful misfeasance, bad faith or negligence in the performance of duties or
by reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder confirms its understanding that the
Directing Certificateholder may take actions that favor the interests of one or
more Classes of the Certificates over other Classes of the Certificates, and
that the Directing Certificateholder may have special relationships and
interests that conflict with those of Holders of some Classes of the
Certificates, that the Directing Certificateholder may act solely in the
interests of the Holders of the Controlling Class, that the Directing
Certificateholder does not have any duties to the Holders of any Class of
Certificates other than the Controlling Class, that the Directing
Certificateholder may take actions that favor the interests of the Holders of
the Controlling Class over the interests of the Holders of one or more other
classes of Certificates, that the Directing Certificateholder shall not be
liable to any Certificateholder, by reason of its having acted solely in the
interests of the Holders of the Controlling Class, and that the Directing
Certificateholder shall have no liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Directing
Certificateholder or any director, officer, employee, agent or principal thereof
for having so acted.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) (A) any failure by the Servicer to make any deposit required to
be made by the Servicer to the Certificate Account on the day and by the
time such remittance is required to be made under the terms of this
Agreement, which failure is not remedied within one Business Day or (B)
any failure by the Servicer to deposit into, or remit to the Paying Agent
for deposit into, any Distribution Account any amount required to be so
deposited or remitted, which failure is not remedied by 10:00 a.m. (New
York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within one Business Day after such deposit is required to be made
or to remit to the Servicer for deposit into the Certificate Account, or
to deposit into, or to remit to the Paying Agent for deposit into, the
Lower-Tier Distribution Account any amount required to be so deposited or
remitted by the Special Servicer pursuant to, and at the time specified
by, the terms of this Agreement; or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any of its
other covenants or obligations contained in this Agreement which continues
unremedied for a period of 30 days (10 days in the case of the Servicer's
failure to make a Servicing Advance or 15 days in the case of a failure to
pay the premium for any insurance policy required to be maintained
hereunder) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer
or the Special Servicer, as the case may be, by any other party hereto,
with a copy to each other party to this agreement by the Holders of
Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 25%; provided, however, if such
failure is capable of being cured and the Servicer or Special Servicer, as
applicable, is diligently pursuing such cure, such 30-day period will be
extended an additional 30 days; or
(iv) any breach on the part of the Servicer or the Special Servicer
of any representation or warranty contained in Section 3.24 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 Paying Agent
or the Trustee, or to the Servicer, the Special Servicer, the Depositor,
the Paying Agent and the Trustee by the Holders of Certificates of any
Class evidencing, as to such Class, Percentage Interests aggregating not
less than 25%; provided, however, if such breach is capable of being cured
and the Servicer or Special Servicer, as applicable, is diligently
pursuing such cure, such 30-day period will be extended an additional 30
days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged, undismissed or unstayed for a period of 60
days; or
(vi) the Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or the Special Servicer or of or relating to all or substantially
all of its property; or
(vii) the Servicer or the Special Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii)the Trustee shall have received and forwarded to the Servicer
or Special Servicer, as applicable written notice from Fitch that the
continuation of the Servicer or Special Servicer, as applicable, in such
capacity has resulted, or would result, in and of itself, in a downgrade,
qualification or withdrawal of any rating then assigned to any Class of
Certificates by Fitch if the Servicer or Special Servicer, as applicable
is not replaced, and the Trustee shall not have received subsequent notice
from Fitch (within 30 days) indicating that no such downgrade,
qualification or withdrawal will result (or that, if it has resulted, it
will be rescinded); or
(ix) Fitch confirms in writing that the Servicer or Special
Servicer, as applicable, no longer has the minimum rating from Fitch
required for master servicers or special servicers, as applicable, of
commercial mortgage securitization transactions; or
(x) the Servicer or the Special Servicer is removed from S&P's
approved master servicer list or approved special servicer list, as
applicable, and is not reinstated to the approved master servicer list or
special servicer list, as applicable, within 60 days of such removal.
(b) If any Event of Default with respect to the Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of the Voting Rights, 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(d)) 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(d)) 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 Servicer) or otherwise, and it and its directors, managers,
officers, members, employees and agents shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such termination).
(c) 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 10 Business
Days notice to the Special Servicer, the Servicer, the Paying Agent and the
Trustee, and to appoint a successor Special Servicer; provided, however, that
(i) such successor will meet the requirements set forth in Section 7.02 and (ii)
as evidenced in writing by each of the Rating Agencies, the proposed successor
of such Special Servicer will not, in and of itself, result in a downgrading,
withdrawal or qualification of the then-current ratings provided by the Rating
Agencies in respect to any Class of then outstanding Certificates that is rated.
No penalty or fee shall be payable to the Special Servicer with respect to any
termination pursuant to this Section 7.01(c). All costs and expenses of any such
termination made without cause shall be paid by the Holders of the Controlling
Class.
(d) The Servicer and Special Servicer shall, from time to time, take
all such reasonable actions as are required by them in order to maintain their
respective status as an approved servicer and special servicer by S&P and
maintain minimum ratings required by Fitch to service future commercial mortgage
loan securitization transactions.
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, the
Trustee shall be the successor to the Servicer and the Servicer shall be the
successor to the Special Servicer, 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(d))
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 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 or the Servicer, as applicable, may, if it shall be unwilling
to act as successor to the Servicer or Special Servicer, as the case may be, or
shall, if it is unable to so act, or if the Trustee or Servicer, as applicable,
is not approved as a servicer or special servicer, as applicable, by each Rating
Agency or if 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.
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 and
Paying Agent shall give prompt written notice thereof to Certificateholders at
their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) 5 days after the Trustee and Paying
Agent would be deemed to have notice of the occurrence of such an event in
accordance with Section 8.02(vii), the Trustee and Paying Agent shall transmit
by mail to the Depositor and all Certificateholders notice of such occurrence,
unless such default shall have been cured.
Section 7.04 Waiver of Events of Default.
The Holders of Certificates representing at least 662/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default; provided, however, that an
Event of Default under clause (i) of Section 7.01(a) may be waived only by all
of the Certificateholders of the affected Classes. Upon any such waiver of an
Event of Default, such Event of Default shall cease to exist and shall be deemed
to have been remedied for every purpose hereunder. Upon any such waiver of an
Event of Default by Certificateholders, the Trustee shall be entitled to recover
all costs and expenses incurred by it in connection with enforcement action
taken with respect to such Event of Default prior to such waiver from the Trust
Fund. No such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
the same Voting Rights with respect to the matters described above as they would
if any other Person held such Certificates.
Section 7.05 Trustee as Maker of Advances.
(a) In the event that the Servicer fails to fulfill its obligations
hereunder to make any Advances and such failure remains uncured, the Trustee
shall perform such obligations (x) within five Business Days following such
failure by the Servicer with respect to Servicing Advances resulting in an Event
of Default under Section 7.01(a)(iii) hereof to the extent a Responsible Officer
of the Trustee has actual knowledge of such failure with respect to such
Servicing Advances and (y) by noon, New York City time, on the related
Distribution Date with respect to P&I Advances pursuant to the Paying Agent's
notice of failure pursuant to Section 4.03(a) unless such failure has been
cured. With respect to any such Advance made by the Trustee, the Trustee shall
succeed to all of the Servicer's rights with respect to Advances hereunder,
including, without limitation, the Servicer's rights of reimbursement and
interest on each Advance at the Reimbursement Rate, and rights to determine that
a proposed Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the
case may be, (without regard to any impairment of any such rights of
reimbursement caused by such Servicer's default in its obligations hereunder);
provided, however, that if Advances made by both the Trustee and the Servicer
shall at any time be outstanding, or any interest on any Advance shall be
accrued and unpaid, all amounts available to repay such Advances and the
interest thereon hereunder shall be applied entirely to the Advances outstanding
to the Trustee, until such Advances shall have been repaid in full, together
with all interest accrued thereon, prior to reimbursement of the Servicer for
such Advances. The Trustee shall be entitled to conclusively rely on any notice
given with respect to a Nonrecoverable Advance hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee and the Paying Agent.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee or the Paying Agent, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Paying Agent which are
specifically required to be furnished pursuant to any provision of this
Agreement (other than the Mortgage Files, the review of which is specifically
governed by the terms of Article II), shall examine them to determine whether
they conform to the requirements of this Agreement. If any such instrument is
found not to conform to the requirements of this Agreement in a material manner,
the Trustee or the Paying Agent shall notify the party providing such instrument
and requesting the correction thereof. The Trustee or the Paying Agent shall not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Servicer or the Special Servicer or another Person, and accepted
by the Trustee or the Paying Agent in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Paying Agent from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct or bad faith; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Paying Agent shall not be liable
for an error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee or the Paying Agent, respectively,
unless it shall be proved that the Trustee or the Paying Agent,
respectively, was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action).
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent.
Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent may rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
Appraisal, bond or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee and the Paying Agent may consult with counsel and
the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) Neither the Trustee nor the Paying Agent shall be under any
obligation to exercise any of the trusts or powers vested in it by this
Agreement or to make any investigation of matters arising hereunder or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee or the Paying
Agent, as applicable, reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; neither
the Trustee nor the Paying Agent shall be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Paying Agent shall be liable for
any action reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, neither
the Trustee nor the Paying Agent shall be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to
do so by Holders of Certificates entitled to at least 50% of the Voting
Rights; provided, however, that if the payment within a reasonable time to
the Trustee or the Paying Agent of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee or the Paying Agent, respectively, not reasonably
assured to the Trustee or the Paying Agent by the security afforded to it
by the terms of this Agreement, the Trustee or the Paying Agent,
respectively, may require reasonable indemnity from such requesting
Holders against such expense or liability as a condition to taking any
such action. The reasonable expense of every such reasonable examination
shall be paid by the requesting Holders;
(vi) The Trustee or the Paying Agent may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys; provided, however, that the appointment of
such agents or attorneys shall not relieve the Trustee or the Paying Agent
of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) Neither the Trustee nor the Paying Agent shall be responsible
for any act or omission of the Servicer or the Special Servicer (unless
the Trustee is acting as Servicer or Special Servicer, as the case may be
in which case the Trustee shall only be responsible for its own actions as
Servicer or Special Servicer) or of the Depositor.
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the acknowledgments of the Trustee or the Paying Agent in Sections 2.02 and 2.05
and the signature, if any, of the Certificate Registrar and Authenticating Agent
set forth on any outstanding Certificate, shall be taken as the statements of
the Depositor, the Servicer or the Special Servicer, as the case may be, and the
Trustee or the Paying Agent assume no responsibility for their correctness.
Neither the Trustee nor the Paying Agent makes any representations as to the
validity or sufficiency of this Agreement or of any Certificate (other than as
to the signature, if any, of the Trustee or the Paying Agent set forth thereon)
or of any Mortgage Loan or related document. Neither the Trustee nor the Paying
Agent shall be accountable for the use or application by the Depositor of any of
the Certificates issued to it or of the proceeds of such Certificates, or for
the use or application of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in or
withdrawn from the Certificate Account or any other account by or on behalf of
the Depositor, the Servicer, the Special Servicer or in the case of the Trustee,
the Paying Agent (unless the Trustee is acting as Paying Agent). The Trustee and
the Paying Agent shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Servicer or the Special Servicer and
accepted by the Trustee, or the Paying Agent, as applicable, in good faith,
pursuant to this Agreement.
Section 8.04 Trustee or Paying Agent May Own Certificates.
The Trustee or the Paying Agent its individual capacity, not as
Trustee or Paying Agent, may become the owner or pledgee of Certificates, and
may deal with the Depositor, the Servicer, the Special Servicer, the Placement
Agents and the Underwriters in banking transactions, with the same rights it
would have if it were not Trustee or Paying Agent.
Section 8.05 Fees and Expenses of Trustee and the Paying Agent;
Indemnification of Trustee.
(a) As compensation for the performance of their respective duties
hereunder, the Trustee will be paid the Trustee Fee and the Paying Agent will be
paid the Paying Agent Fee, in each case, equal to the Trustee's and the Paying
Agent's respective portion of one month's interest at the Trustee Fee Rate,
which shall cover recurring and otherwise reasonably anticipated expenses of the
Trustee and the Paying Agent, respectively. The Trustee Fee and the Paying Agent
Fee shall be paid monthly on a Mortgage Loan-by-Mortgage Loan basis. As to each
Mortgage Loan and REO Loan, the Trustee Fee and the Paying Agent Fee shall
accrue from time to time at the Trustee's and the Paying Agent's respective
portion of Trustee Fee Rate and shall be computed on the basis of the Stated
Principal Balance of such Mortgage Loan and a 360-day year consisting of twelve
30-day months. The Trustee Fee and the Paying Agent Fee (which shall not be
limited to any provision of law in regard to the compensation of a trustee of an
express trust) shall constitute the Trustee's and the Paying Agent's,
respectively, sole form of compensation for all services rendered by it in the
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties of the Trustee and the Paying Agent, respectively
hereunder.
(b) The Trustee, the Paying Agent and any director, officer,
employee or agent of the Trustee and the Paying Agent, respectively, shall be
entitled to be indemnified and held harmless by the Trust Fund (to the extent of
amounts on deposit in the Certificate Account or Lower-Tier Distribution Account
from time to time) against any loss, liability or expense (including, without
limitation, costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement, and expenses incurred
in becoming successor servicer or successor Special Servicer, to the extent not
otherwise paid hereunder) arising out of, or incurred in connection with, any
act or omission of the Trustee or the Paying Agent, respectively, relating to
the exercise and performance of any of the powers and duties of the Trustee or
the Paying Agent, respectively, hereunder; provided, however, that none of the
Trustee, the Paying Agent nor any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 8.05(b) for (i) allocable
overhead, (ii) expenses or disbursements incurred or made by or on behalf of the
Trustee or the Paying Agent, respectively, in the normal course of the Trustee's
or the Paying Agent, respectively, performing its duties in accordance with any
of the provisions hereof, which are not "unanticipated expenses of the REMIC"
within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii), (iii) any
expense or liability specifically required to be borne thereby pursuant to the
terms hereof or (iv) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
or the Paying Agent, respectively, obligations and duties hereunder, or by
reason of negligent disregard of such obligations or duties, or as may arise
from a breach of any representation, warranty or covenant of the Trustee or the
Paying Agent, respectively, made herein. The provisions of this Section 8.05(b)
shall survive the termination of this Agreement and any resignation or removal
of the Trustee or the Paying Agent, respectively, and appointment of a successor
thereto.
Section 8.06 Eligibility Requirements for Trustee and the Paying
Agent.
The Trustee and Paying Agent hereunder shall at all times be, and
will be required to resign if it fails to be, (i) a corporation, national bank,
national banking association or a trust company, organized and doing business
under the laws of any state or the United States of America, authorized under
such laws to exercise corporate trust powers and to accept the trust conferred
under this Agreement, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority and shall not be an Affiliate of the Servicer or the Special Servicer
(except during any period when the Trustee is acting as, or has become successor
to, the Servicer or the Special Servicer, as the case may be, pursuant to
Section 7.02), (ii) an institution insured by the Federal Deposit Insurance
Corporation and (iii) an institution whose long-term senior unsecured debt is
rated "AA-" by S&P and Fitch (or such entity as would not, as evidenced in
writing by such Rating Agency, result in the qualification, downgrading or
withdrawal of any of the ratings then assigned thereby to the Certificates).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Paying Agent
administers the Loan REMIC, the Upper-Tier REMIC and the Lower-Tier REMIC or in
which the Trustee's office is located is in a state or local jurisdiction that
imposes a tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Paying Agent or
the Trustee, as applicable shall elect either to (i) resign immediately in the
manner and with the effect specified in Section 8.07, (ii) pay such tax at no
expense to the Trust or (iii) administer the Loan REMIC, the Upper-Tier REMIC
and the Lower-Tier REMIC from a state and local jurisdiction that does not
impose such a tax.
Section 8.07 Resignation and Removal of the Trustee and Paying
Agent.
(a) The Trustee and the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Servicer, the Special Servicer and to all Certificateholders.
Upon receiving such notice of resignation, the Depositor shall promptly appoint
a successor trustee or paying agent acceptable to the Servicer by written
instrument, in duplicate, which instrument shall be delivered to the resigning
Trustee or Paying Agent and to the successor trustee or paying agent. A copy of
such instrument shall be delivered to the Servicer, the Special Servicer, the
Certificateholders and the Trustee or Paying Agent, as applicable, by the
Depositor. If no successor trustee or paying agent shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Paying Agent may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee or Paying Agent shall cease to be
eligible in accordance with the provisions of Section 8.06 and shall fail to
resign after written request therefor by the Depositor or the Servicer, or if at
any time the Trustee or Paying Agent shall become incapable of acting, or shall
be adjudged bankrupt or insolvent, or a receiver of the Trustee or Paying Agent
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or Paying Agent or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or if the Trustee or
Paying Agent (if different than the Trustee) shall fail (other than by reason of
the failure of either the Servicer or the Special Servicer to timely perform its
obligations hereunder or as a result of other circumstances beyond the Trustee's
or Paying Agent's, as applicable, reasonable control), to timely publish any
report to be delivered, published or otherwise made available by the Trustee or
Paying Agent, as applicable, pursuant to Section 4.02 and such failure shall
continue unremedied for a period of five days, or if the Trustee or Paying Agent
(if different from the Trustee) fails to make distributions required pursuant to
Sections 3.05(c), 4.01 or 9.01, then the Depositor may remove the Trustee or
Paying Agent, as applicable, and appoint a successor trustee or paying agent
acceptable to the Servicer or paying agent acceptable to the Trustee or Paying
Agent, as applicable, by written instrument, in duplicate, which instrument
shall be delivered to the Trustee or Paying Agent so removed and to the
successor trustee or paying agent in the case of the removal of the Trustee or
Paying Agent. A copy of such instrument shall be delivered to the Servicer, the
Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee or Paying Agent and appoint a
successor trustee paying agent by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Servicer, one
complete set to the Trustee or Paying Agent so removed and one complete set to
the successor so appointed. A copy of such instrument shall be delivered to the
Depositor, the Special Servicer and the remaining Certificateholders by the
Servicer.
(d) Any resignation or removal of the Trustee or Paying Agent and
appointment of a successor Trustee or Paying Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee or Paying Agent as provided in Section
8.08.
Upon any succession of the Trustee or Paying Agent under this
Agreement, the predecessor Trustee or Paying Agent shall be entitled to the
payment of accrued and unpaid compensation and reimbursement as provided for
under this Agreement for services rendered and expenses incurred (including
without limitation, unreimbursed Advances). No Trustee or Paying Agent shall be
personally liable for any action or omission of any successor Trustee or Paying
Agent .
Section 8.08 Successor Trustee or Paying Agent.
(a) Any successor Trustee or Paying Agent appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the
Servicer, the Special Servicer and to its predecessor Trustee or Paying Agent an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee or Paying Agent shall become effective and
such successor Trustee or Paying Agent without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as Trustee or Paying Agent herein. The predecessor Trustee shall deliver
to the successor trustee all Mortgage Files and related documents and statements
held by it hereunder (other than any Mortgage Files at the time held on its
behalf by a Custodian, which Custodian, at Custodian's option shall become the
agent of the successor Trustee), and the Depositor, the Servicer, the Special
Servicer and the predecessor Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor Trustee all such rights, powers,
duties and obligations, and to enable the successor Trustee to perform its
obligations hereunder.
(b) No successor trustee or successor paying agent shall accept
appointment as provided in this Section 8.08 unless at the time of such
acceptance such successor trustee or successor paying agent, as applicable,
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee or
successor paying agent as provided in this Section 8.08, the Servicer shall mail
notice of the succession of such trustee or paying agent, as applicable, to the
Depositor and the Certificateholders. If the Servicer fails to mail such notice
within 10 days after acceptance of appointment by the successor Trustee or
successor paying agent, as applicable, such successor trustee or successor
paying agent shall cause such notice to be mailed at the expense of the
Servicer.
Section 8.09 Merger or Consolidation of Trustee.
Any Person into which the Trustee or the Paying Agent may be merged
or converted or with which it may be consolidated or any Person resulting from
any merger, conversion or consolidation to which the Trustee or the Paying Agent
shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of the Trustee or the Paying Agent shall be the
successor of the Trustee or the Paying Agent, as applicable, hereunder;
provided, that, in the case of the Trustee, such successor Person shall be
eligible under the provisions of Section 8.06, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. The Trustee or the Paying
Agent, as applicable, will provide notice of such event to the Servicer, the
Special Servicer, the Depositor and the Rating Agencies.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
to do so, or in case an Event of Default shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer or the Special Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Servicer, appoint one or
more Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution subject to supervision
by federal or state authority, shall have combined capital and surplus of at
least $15,000,000 and shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File and shall not be the Depositor or any Affiliate
of the Depositor. Each Custodian shall be subject to the same obligations and
standard of care as would be imposed on the Trustee hereunder in connection with
the retention of Mortgage Files directly by the Trustee. The appointment of one
or more Custodians shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of any Custodian. Any Custodian appointed hereunder must maintain a fidelity
bond and errors and omissions policy in an amount customary for Custodians which
serve in such capacity in commercial mortgage loan securitization transactions.
Section 8.12 Access to Certain Information.
(a) On or prior to the date of the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Paying Agent and the Trustee three copies of any private placement memorandum or
other disclosure document used by the Depositor or its Affiliate in connection
with the offer and sale of the Class of Certificates to which such
Non-Registered Certificate relates. In addition, if any such private placement
memorandum or disclosure document is revised, amended or supplemented at any
time following the delivery thereof to the Trustee and the Paying Agent, the
Depositor promptly shall inform the Trustee of such event and shall deliver to
the Paying Agent and the Trustee a copy of the private placement memorandum or
disclosure document, as revised, amended or supplemented. The Paying Agent (or
with respect to item (ii)(j) below, the Trustee) shall maintain at its offices
primarily responsible for administering the Trust Fund and shall, upon
reasonable advance notice, make available during normal business hours for
review by any Holder of a Certificate, the Depositor, the Servicer, the Special
Servicer, any Rating Agency or any other Person to whom the Paying Agent (or the
Trustee, if applicable) believes such disclosure is appropriate, originals or
copies of the following items: (i) in the case of a Holder or prospective
transferee of a Non-Registered Certificate, any private placement memorandum or
other disclosure document relating to the Class of Certificates to which such
Non-Registered Certificate belongs, in the form most recently provided to the
Paying Agent and (ii) in all cases, (a) this Agreement and any amendments hereto
entered into pursuant to Section 11.01, (b) all statements required to be
delivered to Certificateholders of the relevant Class pursuant to Section 4.02
since the Closing Date, (c) all Officer's Certificates delivered to the Paying
Agent since the Closing Date pursuant to Section 3.13, (d) all accountants'
reports delivered to the Paying Agent since the Closing Date pursuant to Section
3.14, (e) any inspection report prepared by the Servicer, Sub-Servicer or
Special Servicer, as applicable, and delivered to the Paying Agent and Servicer
in respect of each Mortgaged Property pursuant to Section 3.12(a), (f) as to
each Mortgage Loan pursuant to which the related Mortgagor is required to
deliver such items or the Special Servicer has otherwise acquired such items,
the most recent annual operating statement and rent roll of the related
Mortgaged Property and financial statements of the related Mortgagor and any
other reports of the Mortgagor collected by the Servicer, Sub-Servicer or
Special Servicer, as applicable, and delivered to the Paying Agent pursuant to
Section 3.12(b), together with the accompanying written reports to be prepared
by the Special Servicer and delivered to the Paying Agent pursuant to Section
3.12(b), (g) any and all notices, reports and Environmental Assessments
delivered to the Paying Agent with respect to any Mortgaged Property securing a
Defaulted Mortgage Loan as to which the environmental testing contemplated by
Section 3.09(c) revealed that either of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof was not satisfied (but only for so long
as such Mortgaged Property or the related Mortgage Loan are part of the Trust
Fund), (h) any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into by the Servicer or the Special Servicer and delivered
to the Paying Agent pursuant to Section 3.20 (but only for so long as the
affected Mortgage Loan is part of the Trust Fund), (i) any and all Officer's
Certificates delivered to the Paying Agent to support the Servicer's
determination that any P&I Advance or Servicing Advance was or, if made, would
be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as the case
may be, (j) any and all of the Mortgage Loan documents contained in the Mortgage
File, (k) any and all Appraisals obtained pursuant to the definition of
"Appraisal Reduction" herein, (l) information regarding the occurrence of
Servicing Transfer Events as to the Mortgage Loans and (m) any and all
Sub-Servicing Agreements and any amendments thereto and modifications thereof.
Copies of any and all of the foregoing items will be available from the Paying
Agent upon request; provided, however, that the Paying Agent shall be permitted
to require payment of a sum sufficient to cover the reasonable costs and
expenses of providing such copies, except in the case of copies provided to the
Rating Agencies, which shall be free of charge. In addition, without limiting
the generality of the foregoing, any Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N and Class NR Certificateholder may upon request
from the Paying Agent obtain a copy of any factual report (other than the Asset
Status Report) delivered to the Rating Agencies under this Agreement.
(b) The Paying Agent shall provide 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 Paying Agent
pursuant to Article IV hereof. If any such information is provided on or before
March 4, 2002, the Paying Agent shall provide the Prospectus to Bloomberg, L.P.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Paying Agent shall, in accordance with such reasonable rules and procedures as
each may adopt (which may include the requirement that an agreement that
provides that such information shall be used solely for purposes of evaluating
the investment characteristics of the Certificates be executed), also provide
the reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Paying Agent, to any
Certificateholder, the Underwriters, the Placement 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 Paying
Agent, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Paying Agent
pursuant to this Section 8.12, the Paying Agent shall be entitled to indicate
the source of such information and the Paying Agent may affix thereto any
disclaimer it deems appropriate in its discretion. The Paying Agent shall notify
Certificateholders of the availability of any such information in any manner as
it, in its sole discretion, may determine. In connection with providing access
to or copies of the items described in the preceding paragraph, the Paying Agent
may require (a) in the case of Certificate Owners, a confirmation executed by
the requesting Person substantially in form and substance reasonably acceptable
to the Paying Agent, as applicable, generally to the effect that such Person is
a beneficial holder of Certificates, is requesting the information solely for
use in evaluating such Person's investment in the Certificates and will
otherwise keep such information confidential and (b) in the case of a
prospective purchaser, confirmation executed by the requesting Person in form
and substance reasonably acceptable to the Paying Agent, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Paying Agent shall not be liable for the dissemination of
information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to the Depositor, the
Servicer and the Special Servicer, the Paying Agent and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
Section 8.14 Representations and Warranties of the Paying Agent.
(a) The Paying Agent hereby represents and warrants to the
Depositor, the Servicer and the Special Servicer, the Trustee and for the
benefit of the Certificateholders, as of the Closing Date, that:
(i) The Paying Agent is a 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 Paying
Agent, and the performance and compliance with the terms of this Agreement
by the Paying Agent, will not violate the Paying Agent'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 Paying Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Paying Agent, enforceable against the Paying
Agent in accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights of
creditors of national banking associations specifically and (b) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) The Paying Agent is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Paying Agent's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Paying Agent to perform its obligations under this
Agreement or the financial condition of the Paying Agent;
(vi) No litigation is pending or, to the best of the Paying Agent's
knowledge, threatened against the Paying Agent which would prohibit the
Paying Agent from entering into this Agreement or, in the Paying Agent's
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Paying Agent to perform its obligations
under this Agreement or the financial condition of the Paying Agent; 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 Paying Agent, or compliance by the Paying Agent with,
this Agreement or the consummation of the transactions contemplated by
this Agreement, except for any consent, approval, authorization or order
which has not been obtained or cannot be obtained prior to the actual
performance by the Paying Agent of its obligations under this Agreement,
and which, if not obtained would not have a materially adverse effect on
the ability of the Paying Agent to perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Paying Agent, the
Depositor, the Servicer, the Special Servicer and the Trustee (other than the
obligations of the Paying Agent or Trustee, as applicable, to provide for and
make payments to Certificateholders as hereafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by or on behalf of the Paying Agent and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (i) the purchase by the
Servicer, the Special Servicer, the Holders of the majority of the Controlling
Class or the Holders of the Class LR Certificates of all the Mortgage Loans and
each REO Property remaining in the Trust Fund at a price equal to (a) the sum of
(1) the aggregate Purchase Price of all the Mortgage Loans (exclusive of REO
Loans) included in the Trust Fund, (2) the Appraised Value of each REO Property,
if any, included in the Trust Fund (such Appraisals in clause (a)(2) to be
conducted by an Independent MAI-designated appraiser selected and mutually
agreed upon by the Servicer and the Trustee, and approved by more than 50% of
the Voting Rights of the Classes of Certificates then outstanding (other than
the Controlling Class unless the Controlling Class is the only Class of
Certificates then outstanding)) (which approval shall be deemed given unless
more than 50% of such Certificateholders do not object within 20 days of receipt
of notice thereof) and (3) the reasonable out-of-pocket expenses of the Servicer
with respect to such termination, unless the Servicer is the purchaser of such
Mortgage Loans, minus (b) solely in the case where the Servicer is effecting
such purchase, the aggregate amount of unreimbursed Advances, together with any
interest accrued and payable to the Servicer in respect of such Advances in
accordance with Sections 3.03(d) and 4.03(d) and any unpaid Servicing Fees,
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Servicer in connection with such purchase) and (ii) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in the Trust Fund; provided, however,
that in no event shall the trust created hereby continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late ambassador of the United States to the Court of St. James's,
living on the date hereof.
The Servicer, the Special Servicer, the Holders of the majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, elect to purchase all of the Mortgage Loans and each REO Property
remaining in the Trust Fund as contemplated by clause (i) of the preceding
paragraph by giving written notice to the Trustee, the Paying Agent and the
other parties hereto no later than 60 days prior to the anticipated date of
purchase; provided, however, that the Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates may
so elect to purchase all of the Mortgage Loans and each REO Property remaining
in the Trust Fund only on or after the first Distribution Date on which the
aggregate Stated Principal Balances of the Mortgage Loans and any REO Loans
remaining in the Trust Fund is less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Loans set forth in the Preliminary Statement.
In the event that the Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates purchases all of
the Mortgage Loans and each REO Property remaining in the Trust Fund in
accordance with the preceding sentence, the Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates, as
applicable, shall deposit in the Lower-Tier Distribution Account (or in the Loan
REMIC Distribution Account to the extent allocable to the Newport Mortgage Loan)
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 Loan REMIC
Distribution Account and the Lower-Tier Distribution Account all amounts
required to be transferred thereto on such P&I Advance Date from the Certificate
Account pursuant to the first paragraph of Section 3.04(b), together with any
other amounts on deposit in the Certificate Account that would otherwise be held
for future distribution. Upon confirmation that such final deposits have been
made, the Trustee shall release or cause to be released to the Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates, as applicable, the Mortgage Files for the remaining
Mortgage Loans and shall execute all assignments, endorsements and other
instruments furnished to it by the Servicer, the Special Servicer, the Holders
of the Controlling Class or the Holders of the Class LR Certificates, as
applicable, as shall be necessary to effectuate transfer of the Mortgage Loans
and REO Properties remaining in the Trust Fund.
For purposes of this Section 9.01, the Holders of the majority of
the Controlling Class shall have the first option to terminate the Trust Fund,
then the Special Servicer, then the Servicer, and then the Holders of the Class
LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Paying Agent by letter to Certificateholders and each
Rating Agency and, if not previously notified pursuant to this Section 9.01, to
the other parties hereto mailed (a) in the event such notice is given in
connection with the purchase of all of the Mortgage Loans and each REO Property
remaining in the Trust Fund, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution on
the Certificates, or (b) otherwise during the month of such final distribution
on or before the P&I Advance Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated.
After transferring (i) amounts distributable on the Loan REMIC
Regular Interests and the amount of any Yield Maintenance Charges with respect
to the Newport Mortgage Loan distributable pursuant to Section 4.01(d) to the
Lower-Tier Distribution Account, and (ii) the Lower-Tier Distribution Amount and
the amount of any Yield Maintenance Charges (other than with respect to the
Newport Mortgage Loan) distributable pursuant to Section 4.01(d) to the
Upper-Tier Distribution Account, in each case pursuant to Section 3.04(b), and
upon presentation and surrender of the Certificates by the Certificateholders on
the final Distribution Date, the Paying Agent shall distribute to each
Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Upper-Tier Distribution Account that are allocable to payments on
the Class of Certificates so presented and surrendered. Amounts transferred from
the Loan REMIC Distribution Account to the Lower-Tier Distribution Account and
from the Lower-Tier Distribution Account to the Upper-Tier Distribution Account
as of the final Distribution Date shall be allocated for the purposes, in the
amounts and in accordance with the priority set forth in Sections 4.01(b),
4.01(d) and 4.01(j) and shall be distributed in termination and liquidation of
the Loan REMIC Regular Interests and the Uncertificated Lower-Tier Interests and
the Class LR Certificates in accordance with such Sections. 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 each REO Property remaining in the Trust Fund as provided
in Section 9.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Paying Agent shall specify the date of adoption of the plan
of complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the Loan
REMIC's, Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return
pursuant to Treasury Regulations, Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Paying
Agent on behalf of the Trustee shall sell all of the assets of the Trust
Fund to the Servicer, the Special Servicer, the Holders of the Controlling
Class or the Holders of the Class LR Certificates, as applicable, for
cash; and
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Loan REMIC Regular
Interests, Uncertificated Lower-Tier Interests and the Certificates, the
Paying Agent shall distribute or credit, or cause to be distributed or
credited, to the Holders of the Class LR Certificates (in the case of the
Lower-Tier REMIC and Loan 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 Loan REMIC, Lower-Tier
REMIC and the Upper-Tier REMIC shall terminate at that time.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.
(a) The Paying Agent shall make elections or cause elections to be
made to treat each of the Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC
under the Code and, if necessary, under Applicable State and Local Tax Law. Such
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 and the Class NC Certificates shall be designated as
the "regular interests" 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 representing the sole class of
"residual interests" in the Lower-Tier REMIC. For purposes of the REMIC election
in respect of the Loan REMIC, each Class of Loan REMIC Regular Interests shall
be designated as the "regular interests" and the Class LR Certificates shall be
designated as representing the sole class of "residual interests" in the Loan
REMIC. None of the Special Servicer, the Servicer, the Paying Agent nor the
Trustee shall permit the creation of any "interests" (within the meaning of
Section 860G of the Code) in the Lower-Tier REMIC or the Upper-Tier REMIC other
than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC within the
meaning of Section 860G(a)(9) of the Code.
(c) The Paying Agent shall act on behalf of each REMIC in relation
to any tax matter or controversy involving either 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 Paying Agent shall be entitled to
reimbursement therefor out of amounts attributable to the Mortgage Loans and any
REO Properties on deposit in the Certificate Account as provided by Section
3.05(a) unless such legal expenses and costs are incurred by reason of the
Paying Agent's willful misfeasance, bad faith or negligence. The Holder of the
largest Percentage Interest in each of the Class R and 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 Upper-Tier REMIC and the Lower-Tier REMIC/Loan
REMIC, respectively. By their acceptance thereof, the Holders of the largest
Percentage Interest in each of the Class R and Class LR Certificates hereby
agrees to irrevocably appoint the Paying Agent as their agent to perform all of
the duties of the "tax matters person" for the Upper-Tier REMIC and the
Lower-Tier REMIC/Loan REMIC, respectively.
(d) The Paying Agent shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Loan REMIC, the Lower-Tier REMIC and the
Upper-Tier REMIC created hereunder deliver those Tax Returns that require
signature in a timely manner to the Trustee and the Trustee shall sign such Tax
Returns in a timely manner. The ordinary expenses of preparing such returns
shall be borne by the Paying Agent without any right of reimbursement therefor.
The Paying Agent agrees to indemnify and hold harmless the Trustee with respect
to any tax or liability arising from the Trustee's signing of Tax Returns that
contain errors or omissions.
(e) The Paying Agent shall provide or cause to be provided (i) to
any Transferor of a Class R Certificate or Class LR Certificate such information
as is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811 the name,
title, address and telephone number of the "tax matters person" who will serve
as the representative of each of the Loan REMIC, the Lower-Tier REMIC and the
Upper-Tier REMIC created hereunder.
(f) The Paying Agent shall take such actions and shall cause the
Trust Fund to take such actions as are reasonably within the Paying Agent's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status of each of the Loan REMIC, the Lower-Tier
REMIC and the Upper-Tier REMIC as a REMIC under the REMIC Provisions (and the
Trustee shall assist the Paying Agent, to the extent reasonably requested by the
Paying Agent to do so). Neither the Servicer nor the Special Servicer shall
knowingly or intentionally take any action, cause the Trust Fund to take any
action or fail to take (or fail to cause to be taken) any action reasonably
within its control and the scope of duties more specifically set forth herein,
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could (i) endanger the status of the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or (ii) result in the imposition of a tax upon the
Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC or the Trust Fund
(including but not limited to the tax on "prohibited transactions" as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code, but not including the tax on "net income from
foreclosure property") (either such event, an "Adverse REMIC Event") unless the
Paying Agent receives an Opinion of Counsel (at the expense of the party seeking
to take such action or, if such party fails to pay such expense, and the Paying
Agent determines that taking such action is in the best interest of the Trust
Fund and the Certificateholders, at the expense of the Trust Fund, but in no
event at the expense of the Paying Agent or the Trustee) to the effect that the
contemplated action will not, with respect to the Trust Fund, the Loan REMIC,
the Lower-Tier REMIC or the Upper-Tier REMIC created hereunder, endanger such
status or, unless the Paying Agent determines in its sole discretion to
indemnify the Trust Fund against such tax, result in the imposition of such a
tax (not including a tax on "net income from foreclosure property"). The Trustee
shall not take or fail to take any action (whether or not authorized hereunder)
as to which the Paying Agent has advised it in writing that it has received an
Opinion of Counsel to the effect that an Adverse REMIC Event could occur with
respect to such action. In addition, prior to taking any action with respect to
the Trust Fund, the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC or
any of its assets, or causing the Trust Fund or the Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC to take any action, which is not expressly
permitted under the terms of this Agreement, the Trustee will consult with the
Paying Agent or its designee, in writing, with respect to whether such action
could cause an Adverse REMIC Event to occur with respect to the Trust Fund or
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC and the Trustee
shall not take any such action or cause the Trust Fund or the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to take any such action as to which the
Paying Agent has advised it in writing that an Adverse REMIC Event could occur.
The Paying Agent may consult with counsel to make such written advice, and the
cost of same shall be borne by the party seeking to take the action not
expressly permitted by this Agreement, but in no event at the expense of the
Paying Agent or the Trustee. At all times as may be required by the Code, the
Paying Agent will to the extent within its control and the scope of its duties
more specifically set forth herein, maintain substantially all of the assets of
each of the Loan REMIC, 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 Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC,
such tax shall be charged against amounts otherwise distributable to the Holders
of the Certificates, except as provided in the last sentence of this Section
10.01(g); provided, that with respect to the estimated amount of tax imposed on
any "net income from foreclosure property" pursuant to Code Section 860G(c) or
any similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised by
the Servicer 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 Loan REMIC, the Lower-Tier REMIC
or the Upper-Tier REMIC (but such authorization shall not prevent the Paying
Agent from contesting, at the expense of the Trust Fund (other than as a
consequence of a breach of its obligations under this Agreement), any such tax
in appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The Paying Agent is hereby
authorized to and shall segregate, into a separate non-interest bearing account,
the net income from any "prohibited transaction" under Code Section 860F(a) or
the amount of any taxable contribution to the Loan REMIC, the Lower-Tier REMIC
or the Upper-Tier REMIC after the Startup Day that is subject to tax under Code
Section 860G(d) and use such income or amount, to the extent necessary, to pay
such prohibited transactions tax. To the extent that any such tax (other than
any such tax paid in respect of "net income from foreclosure property") is paid
to the Internal Revenue Service or applicable state or local tax authorities,
the Paying Agent shall retain an equal amount from future amounts otherwise
distributable to the Holders of Residual Certificates (as applicable) and shall
distribute such retained amounts, (x) in the case of the Loan REMIC Regular
Interests, to the Lower-Tier REMIC and in the case of the Uncertificated
Lower-Tier REMIC Interests, to the Upper Tier REMIC to the extent such classes
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
Sections 4.01(b) and (j) 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 NR, Class X-1 and Class
X-2 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 Paying Agent, the Servicer or the Special Servicer shall be
responsible for any taxes imposed on the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC except to the extent such taxes arise as a consequence of a
breach of their respective obligations under this Agreement which breach
constitutes willful misfeasance, bad faith or negligence by such party.
(h) The Trustee (but only to the extent, if any, specifically
required to maintain books and records hereunder) and the Paying Agent shall,
for federal income tax purposes, maintain books and records with respect to each
of the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC on a calendar
year and on an accrual basis or as otherwise may be required by the REMIC
Provisions.
(i) Following the Startup Day, neither the Paying Agent nor the
Trustee shall accept any contributions of assets to the Loan REMIC, the
Lower-Tier REMIC and the Upper-Tier REMIC unless the Paying Agent and the
Trustee shall have received an Opinion of Counsel (at the expense of the party
seeking to make such contribution) to the effect that the inclusion of such
assets in the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC will not
(i) cause the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to fail
to qualify as a REMIC at any time that any Loan REMIC Regular Interests,
Uncertificated Lower-Tier Interests or Certificates are outstanding or (ii)
subject any of the Trust Fund or the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) Neither the Paying Agent nor the Trustee shall enter into any
arrangement by which the Trust Fund or the Loan REMIC, 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 Loan REMIC, 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 of each Class of Certificates (other than the Class X-2
Certificates) representing a "regular interest" in the Upper-Tier REMIC, the
Lower-Tier Principal Amount of each Class of Uncertificated Lower-Tier Interests
representing a "regular interest" in the Lower-Tier REMIC, and the Lower-Tier
Principal Amount of any Class of Loan REMIC Regular Interests representing a
"regular interest" in the Loan REMIC would be reduced to zero is the Rated Final
Distribution Date. The "latest possible maturity date" of the Class X-2
Certificates is the Class X-2 Termination Date.
(l) None of the Trustee, the Servicer or the Special Servicer, as
applicable, shall sell, dispose of or substitute for any of the Mortgage Loans
(except in connection with (i) the default, imminent default or foreclosure of a
Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgaged Property acquired by foreclosure or deed in lieu of foreclosure, (ii)
the bankruptcy of the Trust Fund, (iii) the termination of the Trust Fund
pursuant to Article IX of this Agreement or (iv) a purchase of Mortgage Loans
pursuant to Article II or III of this Agreement) or acquire any assets for the
Trust Fund or the Loan REMIC, 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 Loan
REMIC, 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 Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to a
tax on "prohibited transactions" pursuant to the REMIC Provisions.
Section 10.02 Depositor, Servicer and Special Servicer to Cooperate
with Paying Agent.
(a) The Depositor shall provide or cause to be provided to the
Paying Agent, within 10 days after the Closing Date, all information or data
that the Paying Agent reasonably determines to be relevant for tax purposes as
to the valuations and issue prices of the Certificates, including, without
limitation, the price, yield, Prepayment Assumption and projected cash flow of
the Certificates.
(b) The Servicer, the Special Servicer, the Paying Agent and the
Trustee shall each furnish such reports, certifications and information, and
upon reasonable notice and during normal business hours, access to such books
and records maintained thereby, as may relate to the Certificates or the Trust
Fund and as shall be reasonably requested by the Paying Agent in order to enable
it to perform its duties hereunder.
Section 10.03 Use of Agents.
The Paying Agent shall execute all of its obligations and duties
under this Article X through its corporate trust department located at 000 X.
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The Paying Agent may
execute any of its obligations and duties under this Article X either directly
or by or through agents or attorneys. The Paying Agent shall not be relieved of
any of its duties or obligations under this Article X by virtue of the
appointment of any such agents or attorneys.
[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:
(i) to cure any ambiguity;
(ii) to correct or supplement any provisions herein, which may be
inconsistent with any other provisions herein or in the Prospectus or
Prospectus Supplement or to correct any error;
(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 any of the Loan REMIC, 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 any of the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would
be a claim against the Trust Fund or any of the Loan REMIC, Lower-Tier
REMIC or the Upper-Tier REMIC, provided that the Trustee and the Paying
Agent have received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax and (b) such
action will not adversely affect in any material respect the interests of
any Certificateholder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, Newport Collection Account, the Distribution Accounts
or REO Account or to change the name in which the Certificate Account or
Newport Collection Account is maintained, provided that (a) the P&I
Advance Date shall in no event be later than the related Distribution
Date, (b) such change shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any
Certificateholder and (c) such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(d)
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 Loan REMIC, 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 or any other changes, 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 or (y) result in the downgrade,
withdrawal or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; 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 provided that such change shall not
result in the downgrade, withdrawal or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by a letter
from each Rating Agency to such effect; provided that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller under a
Mortgage Loan Purchase Agreement without the consent of each 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
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
(c) Notwithstanding the foregoing, neither the Trustee nor the
Paying Agent will be entitled to consent to any amendment hereto without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the effect
that such amendment is permitted hereunder and that such amendment or the
exercise of any power granted to the Servicer, the Depositor, the Special
Servicer, the Trustee or any other specified person in accordance with such
amendment will not result in the imposition of a tax on the Trust Fund, the Loan
REMIC, the Lower-Tier REMIC, the Upper-Tier REMIC or the Grantor Trust, cause
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify
as a REMIC, or cause the Grantor Trust to fail to qualify as a grantor trust.
(d) Promptly after the execution of any such amendment, the Paying
Agent Trustee shall furnish a statement describing the amendment to each
Certificateholder and the Paying Agent a copy of such amendment to each Rating
Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Paying Agent 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 Paying Agent Trustee requests any
amendment of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 11.01(a) or (c) shall be payable out of the
Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates.
Section 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee at the expense of the Depositor on direction by the
Special Servicer and with the consent of the Depositor (which may not be
unreasonably withheld), but only upon direction accompanied by an Opinion of
Counsel (the cost of which shall be paid by the Depositor) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee and the Paying Agent a written notice of default hereunder, and of the
continuance thereof, as herein before provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates of any Class
evidencing not less than 25% of the related Percentage Interests in such Class
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Holders of Certificates unless such Holders have offered to the Trustee
reasonable security against the costs, expenses and liabilities which may be
incurred therein or hereby. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03(c), each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
Section 11.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given if personally delivered at or 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, Xxx Xxxx
00000, Attention: Xxxxx Xxxxx, telecopy number: (000) 000-0000; (ii) in the case
of the Servicer and Special Servicer, Midland Loan Services, Inc., 000 Xxxx 00xx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx, 00000, Attention: President, telecopy number:
(000) 000-0000; (iii) in the case of the Trustee, Xxxxx Xxxxx Xxxx Xxxxxxxxx,
X.X., 00000 Broken Land Parkway, Columbia, Maryland, 21044-3562, Attention:
Corporate Trust Administration CMBS, Ref X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Series 2001-C1, telecopy number (000) 000-0000; (iv) in the
case of the initial Paying Agent, the initial Certificate Registrar and the
initial Authenticating Agent, LaSalle Bank National Association 000 X. XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Asset-Backed Securities Trust
Services Group-XX Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificate Series 2001-C1, telecopy number: (312)
904-2084; (v) in the case of the Rating Agencies, (a) Standard and Poor's Rating
Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial
Mortgage 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; (vi) in the
case of the Mortgage Loan Sellers, (a) JPMorgan Chase Bank, 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Alto, fax number (212)
000-0000; (b) PNC Bank, National Association, One PNC Plaza, 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, 00000, Attention: Xxxxxxxx Xxxxxxx,
telecopy number: (000) 000-0000, with a copy to Xxxxxxxx Xxxxx, 21st Floor,
telecopy number: (000) 000-0000, and (c) LaSalle Bank National Association, 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000, Attention: Xxxxxxxx Govern,
telecopy number: (000) 000-0000; or as to each such Person such other address as
may hereafter be furnished by such Person to the parties hereto in writing; and
(vii) in the case of the initial Directing Certificateholder, Allied Capital
Corporation, 0000 Xxxxxxxxxxxx Xxx. XX, 0xx Xxxxx, Xxxxxxxxxx, X.X. 00000,
Attention: Xxxx Xxxxxxxx, 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 Newport Collection Account, the
Distribution Account, the Excess Interest Distribution Account, the Gain-on-Sale
Account, the Interest Reserve Account and, if established, the REO Account, and
all reinvestment earnings on such amounts, and all of the Depositor's right,
title and interest in and to the proceeds of any title, hazard or other
Insurance Policies related to such Mortgage Loans and (ii) this Agreement shall
constitute a security agreement under applicable law. This Section 11.07 shall
constitute notice to the Trustee pursuant to any of the requirements of the
applicable UCC.
Section 11.08 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. No
other person, including, without limitation, any Mortgagor, shall be entitled to
any benefit or equitable right, remedy or claim under this Agreement.
Section 11.09 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 11.10 Notices to the Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Paying Agent, the
Servicer or the Special Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 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; and
(iii) [Reserved];
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Servicer and the Special
Servicer shall promptly furnish to each Rating Agency copies of inspection
reports and other items delivered to each of the Servicer and Special Servicer
pursuant to Sections 3.12(a) and 3.12(b).
(d) The Paying Agent shall promptly furnish to each Rating Agency a
copy of the Statement to Certificateholders distributed pursuant to Section
4.02(a) and shall promptly furnish notice the Rating Agencies of (i) any change
in the location of either of the Distribution Accounts and (ii) the final
payment to any Class of Certificateholders.
(e) The Trustee, the Paying Agent, the Servicer and the Special
Servicer, as applicable, shall furnish to each Rating Agency with respect to
each Mortgage Loan such information as the Rating Agency shall reasonably
request and which the Trustee, the Servicer or Special Servicer, can reasonably
provide in accordance with applicable law and without waiving any
attorney-client privilege relating to such information or violating the terms of
this Agreement or any Mortgage Loan documents. The Trustee, the 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:
-----------------------------------
Name:
Title:
MIDLAND LOAN SERVICES, INC.
Servicer
By:
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice-President
MIDLAND LOAN SERVICES, INC.
Special Servicer
By:
--------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice-President
XXXXX FARGO BANK MINNESOTA, N.A.,
Trustee
By:
-----------------------------------
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
Paying Agent
By:
-----------------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of December, 2001, before me, a notary public in and
for said State, personally appeared ________________________ known to me to be
________________ of X.X. Xxxxxx Xxxxx 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
[Notarial Seal]
STATE OF _______________ )
) ss.:
COUNTY OF _____________ )
On the ___ day of December, 2001, before me, a notary public in and
for said State, personally appeared ___________________ known to me to be a
___________________ of Midland Loan Services, Inc., a Delaware 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
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of December, 2001, before me, a notary public in and
for said State, personally appeared ___________________ known to me to be a
___________________ of Xxxxx Fargo Bank Minnesota, N.A., that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such national banking association, and acknowledged to me that such
national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
______________________________
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of December, 2001, before me, a notary public in and
for 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 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
[Notarial Seal]
EXHIBIT A-1
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 4.064% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $51,000,000 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $1,070,655,188
AGREEMENT: AS OF DECEMBER 1, 2001
SERVICER: MIDLAND LOAN SERVICES, INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN,
ITS DUE DATE IN DECEMBER 2001 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
CLOSING DATE: DECEMBER 14, 2001
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
FIRST DISTRIBUTION DATE:
JANUARY 14, 2002 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CUSIP NO.: 00000XXX0
OF THE CLASS A-1 CERTIFICATES
AS OF THE CLOSING DATE: $51,000,000 ISIN NO.: US46625MFA27
COMMON CODE NO.: 014029729
CERTIFICATE NO.: A-1-1
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-2
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 5.464% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $156,200,000 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $1,070,655,188
AGREEMENT: AS OF DECEMBER 1, 2001
SERVICER: MIDLAND LOAN SERVICES, INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN,
ITS DUE DATE IN DECEMBER 2001 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
CLOSING DATE: DECEMBER 14, 2001
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
FIRST DISTRIBUTION DATE:
JANUARY 14, 2002 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CUSIP NO.: 00000XXX0
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $156,200,000 ISIN NO.: US46625MFB00
COMMON CODE NO.: 014029788
CERTIFICATE NO.: X-0-0
XXXXXXX X-0
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-3
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS A-3
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 5.857% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $[500,000,000] DEDUCTING PAYMENTS DUE AND PREPAYMENTS
[103,652,000] RECEIVED ON OR BEFORE CUT-OFF DATE:
$1,070,655,188
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2001 SERVICER: MIDLAND LOAN SERVICES, INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN, SPECIAL SERVICER: MIDLAND LOAN SERVICES,
ITS DUE DATE IN DECEMBER 2001 INC.
CLOSING DATE: DECEMBER 14, 2001 TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
FIRST DISTRIBUTION DATE: PAYING AGENT: LASALLE BANK NATIONAL
JANUARY 14, 2002 ASSOCIATION
APPROXIMATE AGGREGATE CUSIP NO.: 00000XXX0
CERTIFICATE BALANCE
OF THE CLASS A-3 CERTIFICATES ISIN NO.: US46625MFC82
AS OF THE CLOSING DATE: $603,652,000
COMMON CODE NO.: 014029818
CERTIFICATE NO.: A-3-[1][2]
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3 Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS X-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 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 NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-1 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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 OR CLASS S 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS X-1 APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE EQUAL TO, FOR ANY BALANCE OF THE MORTGAGE LOANS AFTER
DISTRIBUTION DATE, THE CLASS X-1 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
PASS-THROUGH RATE RECEIVED ON OR BEFORE CUT-OFF DATE: $1,070,655,188
DENOMINATION: $[500,000,000] SERVICER: MIDLAND LOAN SERVICES, INC.
[70,655,188]
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF DECEMBER 1, 2001
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN,
ITS DUE DATE IN DECEMBER 2001 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: DECEMBER 14, 2001
CUSIP NO.: [00000XXX0]2 [00000XXX0]3
FIRST DISTRIBUTION DATE: [X00000XX0]1
JANUARY 14, 2002
ISIN NO.: [US46625MFH79]2
APPROXIMATE AGGREGATE NOTIONAL AMOUNT [US46625MFJ36]3 [USU48138CH97]1
OF THE CLASS X-1 CERTIFICATES AS OF THE
CLOSING DATE: THE SUM OF THE THEN COMMON CODE: [014047301]2 [014047433]3
APPLICABLE COMPONENT NOTIONAL AMOUNTS [014065733]1
OF ALL OF THE CLASS X-1 COMPONENTS, FOR
ANY DATE OF DETERMINATION. CERTIFICATE NO.: X-1
------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS X-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Servicer. A summary of certain of the pertinent provisions of
the Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2001-C1 and are issued in twenty-three classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X-1 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPLE
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-5
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS X-2
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 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 NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-2 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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 OR CLASS S 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS X-2 APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE EQUAL TO, FOR ANY BALANCE OF THE MORTGAGE LOANS AFTER
DISTRIBUTION DATE, THE CLASS X-2 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
PASS-THROUGH RATE RECEIVED ON OR BEFORE CUT-OFF DATE: $1,070,655,188
DENOMINATION: $[500,000,000] [77,418,000] SERVICER: MIDLAND LOAN SERVICES, INC.
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF DECEMBER 1, 2001
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN,
ITS DUE DATE IN DECEMBER 2001 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: DECEMBER 14, 2001
CUSIP NO.: [46625MFKO]2 [00000XXX0]3
FIRST DISTRIBUTION DATE: [X00000XX0]1
JANUARY 14, 2002
ISIN NO.: [US46625MFK09]2
APPROXIMATE AGGREGATE NOTIONAL AMOUNT [US46625MFL81]3 [USU48138CJ53]1
OF THE CLASS X-2 CERTIFICATES AS OF THE
CLOSING DATE: THE SUM OF THE THEN COMMON CODE: [014047581]2 [014047662]3
COMPONENT NOTIONAL AMOUNTS OF THE CLASS [014065865]1
X-2 COMPONENTS FOR ANY DATE OF
DETERMINATION CERTIFICATE NO.: X-2
------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS X-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Servicer. A summary of certain of the pertinent provisions of
the Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2001-C1 and are issued in twenty-three classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X-2 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
NOTIONAL AMOUNT OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING NOTIONAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
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the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 6.108% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $47,697,000 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $1,070,655,188
AGREEMENT: AS OF DECEMBER 1, 2001
SERVICER: MIDLAND LOAN SERVICES, INC.,
CUT-OFF DATE: FOR EACH MORTGAGE LOAN,
ITS DUE DATE DECEMBER 2001 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
CLOSING DATE: DECEMBER 14, 2001
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
FIRST DISTRIBUTION DATE:
JANUARY 14, 2002 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CUSIP NO.: 00000XXX0
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $47,697,000 ISIN NO.: US46625MFD65
COMMON CODE NO.: 014029907
CERTIFICATE NO.: B-1-1
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 6.226% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $21,915,000 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $1,070,655,188
AGREEMENT: AS OF DECEMBER 1, 2001
SERVICER: MIDLAND LOAN SERVICES, INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN,
ITS DUE DATE DECEMBER 2001 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
CLOSING DATE: DECEMBER 14, 2001
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
FIRST DISTRIBUTION DATE:
JANUARY 14, 2002 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CUSIP NO.: 00000XXX0
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $21,915,000 ISIN NO.: US46625MFE49
COMMON CODE NO.: 014029966
CERTIFICATE NO.: C-1-1
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PASS-THROUGH RATE ON THE CLASS D APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE THE LESSER OF (i) BALANCE OF THE MORTGAGE LOANS AFTER
6.405% PER ANNUM AND (ii) THE WEIGHTED DEDUCTING PAYMENTS DUE AND PREPAYMENTS
AVERAGE NET MORTGAGE RATE FOR ANY RECEIVED ON OR BEFORE CUT-OFF DATE:
DISTRIBUTION DATE $1,070,655,188
DENOMINATION: $21,915,000 SERVICER: MIDLAND LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: MIDLAND LOAN SERVICES,
AGREEMENT: AS OF DECEMBER 1, 2001 INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN, TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
ITS DUE DATE DECEMBER 2001
PAYING AGENT: LASALLE BANK NATIONAL
CLOSING DATE: DECEMBER 14, 2001 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: 00000XXX0
JANUARY 14, 2002
ISIN NO.: US46625MFF14
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE COMMON CODE NO.: 014030158
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $21,915,000 CERTIFICATE NO.: D-1-1
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
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--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
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(Please print or typewrite name and address of assignee)
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the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS E
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PASS-THROUGH RATE ON THE CLASS E APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WITH RESPECT TO ANY BALANCE OF THE MORTGAGE LOANS AFTER
DISTRIBUTION DATE WILL BE A PER ANNUM DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RATE EQUAL TO THE WEIGHTED AVERAGE NET RECEIVED ON OR BEFORE CUT-OFF DATE:
MORTGAGE RATE LESS 0.769% $1,070,655,188
DENOMINATION: $12,891,000 SERVICER: MIDLAND LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: MIDLAND LOAN SERVICES,
AGREEMENT: AS OF DECEMBER 1, 2001 INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN, TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
ITS DUE DATE DECEMBER 2001
PAYING AGENT: LASALLE BANK NATIONAL
CLOSING DATE: DECEMBER 14, 2001 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: 00000XXX0
JANUARY 14, 2002
ISIN NO.: US46625MFG96
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE COMMON CODE NO.: 014030301
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $12,891,000 CERTIFICATE NO.: E-1-1
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS
CERTIFICATE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE 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 OR CLASS S 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS F APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WITH RESPECT TO ANY BALANCE OF THE MORTGAGE LOANS AFTER
DISTRIBUTION DATE WILL BE A PER ANNUM DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RATE EQUAL TO THE WEIGHTED AVERAGE NET RECEIVED ON OR BEFORE CUT-OFF DATE:
MORTGAGE RATE LESS 0.347% $1,070,655,188
DENOMINATION: $25,782,000 SERVICER: MIDLAND LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: MIDLAND LOAN SERVICES,
AGREEMENT: AS OF DECEMBER 1, 2001 INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN, TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
ITS DUE DATE IN DECEMBER 2001
PAYING AGENT: LASALLE BANK NATIONAL
CLOSING DATE: DECEMBER 14, 2001 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: [00000XXX0]2 [00000XXX0]3
JANUARY 14, 2002 [X00000XX0]1
APPROXIMATE AGGREGATE ISIN NO.: [US46625MFM64]2
CERTIFICATE BALANCE [US46625MFN48]3 [USU48138CK27]1
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $25,782,000 COMMON CODE NO.: [014048090]2
[014048146]3 [014068155]1
CERTIFICATE NO.: F-1-1
------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS
CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE 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 OR CLASS S 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS G APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE EQUAL TO THE BALANCE OF THE MORTGAGE LOANS AFTER
WEIGHTED AVERAGE NET MORTGAGE RATE FOR DEDUCTING PAYMENTS DUE AND PREPAYMENTS
ANY DISTRIBUTION DATE RECEIVED ON OR BEFORE CUT-OFF DATE:
$1,070,655,188
DENOMINATION: $12,891,000
SERVICER: MIDLAND LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2001 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN,
ITS DUE DATE IN DECEMBER 2001 TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: DECEMBER 14, 2001 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JANUARY 14, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3
[X00000XX0]1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE ISIN NO.: [US46625MFP95]2
OF THE CLASS G CERTIFICATES [US46625MFQ78]3 [USU48138CL00]1
AS OF THE CLOSING DATE: $12,891,000
COMMON CODE NO.: [014048294]2
[014048383]3 [014068279]1
CERTIFICATE NO.: G-1-1
------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, Newport
Collection Account, the Distribution Accounts, the Interest Reserve Account, the
Excess Interest Distribution Account, the Gain-on-Sale Reserve Account and the
REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS
CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) 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 SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 OR CLASS S 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS H APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE THE LESSER OF BALANCE OF THE MORTGAGE LOANS AFTER
(i) 5.626% PER ANNUM AND (ii) THE DEDUCTING PAYMENTS DUE AND PREPAYMENTS
WEIGHTED AVERAGE NET MORTGAGE RATE RECEIVED ON OR BEFORE CUT-OFF DATE:
FOR ANY DISTRIBUTION DATE $1,070,655,188
DENOMINATION: $21,915,000 SERVICER: MIDLAND LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: MIDLAND LOAN SERVICES,
AGREEMENT: AS OF DECEMBER 1, 2001 INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN, TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
ITS DUE DATE IN DECEMBER 2001
PAYING AGENT: LASALLE BANK NATIONAL
CLOSING DATE: DECEMBER 14, 2001 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: [00000XXX0]2 [00000XX00]3
JANUARY 14, 2002 [X00000XX0]1
APPROXIMATE AGGREGATE ISIN NO.: [US46625MFR51]2 [US46625MFS35]3
CERTIFICATE BALANCE [USU48138CM82]1
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $21,915,000 COMMON CODE NO.: [014048715]2
[014049444]3 [014068341]1
CERTIFICATE NO.: H-1-1
------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS
CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) 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 SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 OR CLASS S 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS J APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE THE LESSER OF BALANCE OF THE MORTGAGE LOANS AFTER
(i) 5.626% PER ANNUM AND (ii) THE DEDUCTING PAYMENTS DUE AND PREPAYMENTS
WEIGHTED AVERAGE NET MORTGAGE RATE RECEIVED ON OR BEFORE CUT-OFF DATE:
FOR ANY DISTRIBUTION DATE $1,070,655,188
DENOMINATION: $9,024,000 SERVICER: MIDLAND LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: MIDLAND LOAN SERVICES,
AGREEMENT: AS OF DECEMBER 1, 2001 INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN, TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
ITS DUE DATE IN DECEMBER 2001
PAYING AGENT: LASALLE BANK NATIONAL
CLOSING DATE: DECEMBER 14, 2001 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: [00000XXX0]2 [00000XXX0]3
JANUARY 14, 2002 [X00000XX0]1
APPROXIMATE AGGREGATE ISIN NO.: [US46625MFT18]2
CERTIFICATE BALANCE [US46625MFU80]3 [USU48138LN65]1
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $9,024,000 COMMON CODE NO.: [014049541]2
[014049606]3 [014068520]1
CERTIFICATE NO.: J-1-1
------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS
CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) 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 SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 OR CLASS S 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS K APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE THE LESSER OF BALANCE OF THE MORTGAGE LOANS AFTER
(i) 5.626% PER ANNUM AND (ii) THE DEDUCTING PAYMENTS DUE AND PREPAYMENTS
WEIGHTED AVERAGE NET MORTGAGE RATE RECEIVED ON OR BEFORE CUT-OFF DATE:
FOR ANY DISTRIBUTION DATE $1,070,655,188
DENOMINATION: $6,446,000 SERVICER: MIDLAND LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: MIDLAND LOAN SERVICES,
AGREEMENT: AS OF DECEMBER 1, 2001 INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN, TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
ITS DUE DATE IN DECEMBER 2001
PAYING AGENT: LASALLE BANK NATIONAL
CLOSING DATE: DECEMBER 14, 2001 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: [00000XXX0]2 [00000XXX0]3
JANUARY 14, 2002 [X00000XX0]1
APPROXIMATE AGGREGATE ISIN NO.: [US46625MFV63]2
CERTIFICATE BALANCE [US46625MFW47]3 [USU48138CP14]1
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $6,446,000 COMMON CODE NO.: [014049711]2
[014049797]3 [014068627]1
CERTIFICATE NO.: K-1-1
------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class K Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS
CERTIFICATE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) 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 SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 OR CLASS S 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS L APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE THE LESSER OF BALANCE OF THE MORTGAGE LOANS AFTER
(i) 5.626% PER ANNUM AND (ii) THE DEDUCTING PAYMENTS DUE AND PREPAYMENTS
WEIGHTED AVERAGE NET MORTGAGE RATE RECEIVED ON OR BEFORE CUT-OFF DATE:
FOR ANY DISTRIBUTION DATE $1,070,655,188
DENOMINATION: $10,313,000 SERVICER: MIDLAND LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: MIDLAND LOAN SERVICES,
AGREEMENT: AS OF DECEMBER 1, 2001 INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN, TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
ITS DUE DATE IN DECEMBER 2001
PAYING AGENT: LASALLE BANK NATIONAL
CLOSING DATE: DECEMBER 14, 2001 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: [00000XXX0]2 [00000XXX0]3
JANUARY 14, 2002 [X00000XX0]1
APPROXIMATE AGGREGATE ISIN NO.: [US46625MFX20]2
CERTIFICATE BALANCE [US46625MFY03]3 [USU48138CQ96]1
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $10,313,000 COMMON CODE NO.: [014050043]2
[014050108]3 [014068694]1
CERTIFICATE NO.: L-1-1
------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Gain-on-Sale Reserve Account the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class L
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class L Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS
CERTIFICATE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) 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 SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 OR CLASS S 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS M APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE THE LESSER OF BALANCE OF THE MORTGAGE LOANS AFTER
(i) 5.626% PER ANNUM AND (ii) THE DEDUCTING PAYMENTS DUE AND PREPAYMENTS
WEIGHTED AVERAGE NET MORTGAGE RATE RECEIVED ON OR BEFORE CUT-OFF DATE:
FOR ANY DISTRIBUTION DATE $1,070,655,188
DENOMINATION: $5,156,000 SERVICER: MIDLAND LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: MIDLAND LOAN SERVICES,
AGREEMENT: AS OF DECEMBER 1, 2001 INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN, TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
ITS DUE DATE IN DECEMBER 2001
PAYING AGENT: LASALLE BANK NATIONAL
CLOSING DATE: DECEMBER 14, 2001 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: [00000XXX0]2 [00000XXX0]3
JANUARY 14, 2002 [X00000XX0]1
APPROXIMATE AGGREGATE ISIN NO.: [US46625MFZ77]2
CERTIFICATE BALANCE [US46625MG6A18]3 [USU48138CR79]1
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $5,156,000 COMMON CODE NO.: [014051171]3
[014051414]2 [014068830]1
CERTIFICATE NO.: M-1-1
------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-17
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS
CERTIFICATE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) 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 SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 OR CLASS S 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS N APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE THE LESSER OF BALANCE OF THE MORTGAGE LOANS AFTER
(i) 5.626% PER ANNUM AND (ii) THE DEDUCTING PAYMENTS DUE AND PREPAYMENTS
WEIGHTED AVERAGE NET MORTGAGE RATE RECEIVED ON OR BEFORE CUT-OFF DATE:
FOR ANY DISTRIBUTION DATE $1,070,655,188
DENOMINATION: $5,156,000 SERVICER: MIDLAND LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: MIDLAND LOAN SERVICES,
AGREEMENT: AS OF DECEMBER 1, 2001 INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN,TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
ITS DUE DATE IN DECEMBER 2001
PAYING AGENT: LASALLE BANK NATIONAL
CLOSING DATE: DECEMBER 14, 2001 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: [00000XXX0]]2 [00000XXX0]3
JANUARY 14, 2002 [X00000XX0]1
APPROXIMATE AGGREGATE ISIN NO.: [US46625MGB90]2 [US46625MGC73]3
CERTIFICATE BALANCE [USU48138CS52]1
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $5,156,000 COMMON CODE NO.: [014051627]2
[014051678]3 [014068902]1
CERTIFICATE NO.: N-1-1
------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class N
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class N Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-18
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS NR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS
CERTIFICATE.
THIS CLASS NR CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) 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 SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 OR CLASS S 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS NR APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE THE LESSER OF BALANCE OF THE MORTGAGE LOANS AFTER
(i) 5.626% PER ANNUM AND (ii) THE DEDUCTING PAYMENTS DUE AND PREPAYMENTS
WEIGHTED AVERAGE NET MORTGAGE RATE RECEIVED ON OR BEFORE CUT-OFF DATE:
FOR ANY DISTRIBUTION DATE $1,070,655,188
DENOMINATION: $19,337,188 SERVICER: MIDLAND LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: MIDLAND LOAN SERVICES,
AGREEMENT: AS OF DECEMBER 1, 2001 INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN, TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
ITS DUE DATE IN DECEMBER 2001
PAYING AGENT: LASALLE BANK NATIONAL
CLOSING DATE: DECEMBER 14, 2001 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: [00000XXX0]2 [00000XXX0]3
JANUARY 14, 2002 [X00000XX0]1
APPROXIMATE AGGREGATE ISIN NO.: [US46625MGD56]2 [US46625MGE30]3
CERTIFICATE BALANCE [USU48138CT36]1
OF THE CLASS NR CERTIFICATES
AS OF THE CLOSING DATE: $19,337,188 COMMON CODE NO.: [014051775]2
[014051988]3 [014069003]1
CERTIFICATE NO.: NR-1-1
------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS NR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class NR
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NR Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-19
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS NC-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS
CERTIFICATE.
THIS CLASS NC-1 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE 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 OR CLASS S 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS NC-1 APPROXIMATE AGGREGATE SCHEDULED
CERTIFICATES WILL BE THE NEWPORT PRINCIPAL BALANCE OF THE MORTGAGE LOANS AFTER
MORTGAGE LOAN REMITTANCE RATE FOR ANY DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DISTRIBUTION DATE. RECEIVED ON OR BEFORE CUT-OFF DATE:
$1,070,655,188
DENOMINATION: $32,658,000
SERVICER: MIDLAND LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2001 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN,
ITS DUE DATE IN DECEMBER 2001 TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: DECEMBER 14, 2001 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JANUARY 14, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3
[X00000XX0]1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE ISIN NO.: [US46625MGF05]2
OF THE CLASS NC-1 CERTIFICATES [US46625MGG87]3 [USU48138CU09]1
AS OF THE CLOSING DATE: $32,658,000
COMMON CODE NO.: [014052151]2
[014052224]3 [014069097]1
CERTIFICATE NO.: NC-1-1
------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS NC-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NC-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
NC-1 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NC-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NC-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-20
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS NC-2
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS
CERTIFICATE.
THIS CLASS NC-2 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE 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 OR CLASS S 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS NC-2 APPROXIMATE AGGREGATE SCHEDULED
CERTIFICATES WILL BE THE NEWPORT PRINCIPAL BALANCE OF THE MORTGAGE LOANS AFTER
MORTGAGE LOAN REMITTANCE RATE FOR ANY DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DISTRIBUTION DATE. RECEIVED ON OR BEFORE CUT-OFF DATE:
$1,070,655,188
DENOMINATION: $6,707,000
SERVICER: MIDLAND LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2001 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
CUT-OFF DATE: FOR EACH MORTGAGE LOAN,
ITS DUE DATE IN DECEMBER 2001 TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: DECEMBER 14, 2001 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JANUARY 14, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3
[X00000XX0]1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE ISIN NO.: [US46625MGH60]2 [US46625MGJ27]3
OF THE CLASS NC-2 CERTIFICATES [USU48138CV81]1
AS OF THE CLOSING DATE: $6,707,000
COMMON CODE NO.: [014052461]2
[014052526]3 [014069178]1
CERTIFICATE NO.: NC-2-1
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1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS NC-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NC-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
NC-2 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NC-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NC-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
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(Please insert Social Security or other identifying number of Assignee)
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(Please print or typewrite name and address of assignee)
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the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
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Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
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SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 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 OR CLASS S 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.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL,
STATE OR , LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF
OF OR INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(E)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, AND (E) IT WILL NOT TRANSFER THIS
CERTIFICATE TO ANY PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT.
ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS
NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL
BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE. THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS
DEFINED IN TREASURY REGULATIONS SECTION 1.860E-L(C), AND THEREFORE, TRANSFERS OF
THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
THIS CERTIFICATE: 100% BALANCE OF THE MORTGAGE LOANS AFTER
DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DATE OF POOLING AND SERVICING RECEIVED ON OR BEFORE CUT-OFF DATE:
AGREEMENT: AS OF DECEMBER 1, 2001 $1,070,655,188
CUT-OFF DATE: FOR EACH MORTGAGE LOAN, SERVICER: MIDLAND LOAN SERVICES, INC.
ITS DUE DATE IN DECEMBER 2001
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
CLOSING DATE: DECEMBER 14, 2001 INC.
FIRST DISTRIBUTION DATE: TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
JANUARY 14, 2002
PAYING AGENT: LASALLE BANK NATIONAL
CLASS R PERCENTAGE INTEREST: 100% ASSOCIATION
CERTIFICATE NO.: R-1-1
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [ ]
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2001-C1 and are issued in twenty-three classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class R Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class R Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 14, 2001
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-22
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 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 OR CLASS S 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.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF
OF OR INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(E)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, AND (E) IT WILL NOT TRANSFER THIS
CERTIFICATE TO ANY PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT.
ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS
NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL
BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE. THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS
DEFINED IN TREASURY REGULATIONS SECTION 1.860E-L(C), AND THEREFORE, TRANSFERS OF
THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
THIS CERTIFICATE: 100% BALANCE OF THE MORTGAGE LOANS AFTER
DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DATE OF POOLING AND SERVICING RECEIVED ON OR BEFORE CUT-OFF DATE:
AGREEMENT: DECEMBER 1, 2001 $1,070,655,188
CUT-OFF DATE: FOR EACH MORTGAGE LOAN, SERVICER: MIDLAND LOAN SERVICES, INC.
ITS DUE DATE IN DECEMBER 2001
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
CLOSING DATE: DECEMBER 14, 2001 INC.
FIRST DISTRIBUTION DATE: TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
JANUARY 14, 2002
PAYING AGENT: LASALLE BANK NATIONAL
CLASS LR PERCENTAGE INTEREST: 100% ASSOCIATION
CERTIFICATE NO.: LR-1-1
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [ ]
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2001-C1 and are issued in twenty-three classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class LR Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class LR
Certificates shall be the "tax matters person" for the Lower-Tier REMIC and the
Loan REMIC pursuant to Treasury Regulations Section 1.860F-4(d), and the
Servicer is hereby irrevocably designated and shall serve as attorney-in-fact
and agent for any such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class LR Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(b) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class LR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class LR Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class LR Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class LR Certificate to such proposed Transferee
shall be effected; and (D) Each Person holding or acquiring any Ownership
Interest in a Class LR Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class LR Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 14, 2001
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
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(Please insert Social Security or other identifying number of Assignee)
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(Please print or typewrite name and address of assignee)
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the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
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Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1, CLASS S
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER
JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE 1933 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 1933 ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) (OTHER THAN WITH
RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE 1933 ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS
CERTIFICATE.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) 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 SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 OR CLASS S 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.
PERCENTAGE INTEREST EVIDENCED BY APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
THIS CERTIFICATE: 100% BALANCE OF THE MORTGAGE LOANS AFTER
DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DATE OF POOLING AND SERVICING RECEIVED ON OR BEFORE CUT-OFF DATE:
AGREEMENT: AS OF DECEMBER 1, 2001 $1,070,655,188
CUT-OFF DATE: FOR EACH MORTGAGE LOAN, SERVICER: MIDLAND LOAN SERVICES, INC.
ITS DUE DATE IN DECEMBER 2001
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
CLOSING DATE: DECEMBER 14, 2001 INC.
FIRST DISTRIBUTION DATE: TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
JANUARY 14, 2002
PAYING AGENT: LASALLE BANK NATIONAL
CLASS S PERCENTAGE INTEREST: 100% ASSOCIATION
CERTIFICATE NO.: S-1-1
EXHIBIT A-23
CLASS S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community fixed
rate balloon and fully amortizing mortgage loans (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, Newport Collection Account, the Distribution Accounts, the Interest
Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT [ ]
is the registered owner of the interest evidenced by this Certificate in the
Class S Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2001-C1 and are issued in twenty-three classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
This Certificate represents a beneficial ownership interest in a
portion of the Trust Fund which is treated as a grantor trust for federal income
tax purposes, and represents an undivided beneficial interest in the right to
Excess Interest with respect to the Mortgage Loans and amounts as may be held
from time to time in the Excess Interest Distribution Account.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be on behalf of the Trustee on behalf of the Holders
of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class S and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, and
the Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, Newport Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Newport Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan 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; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee (and the Paying Agent) shall have received an Opinion of
Counsel that such amendment is permitted under the Pooling and Servicing
Agreement and will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC,
or the Loan REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on any of the Upper-Tier REMIC, the Lower-Tier REMIC, or the Loan REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust..
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED OFFICER
Dated: December 14, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 14, 2001
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated: NOTICE: The signature to this assignment
-------------------------- must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT B
Mortgage Loan Schedule
PROSUPP
LOAN ID LOAN ID MORTGAGOR'S NAME PROPERTY ADDRESS
------- ------- ---------------- ----------------
1 1807 Newport Centre, LLC 00 Xxxx Xxxxx Xxxx
0 0000 XXX000, LLC 0000 0xx Xxxxxx
3 1683 A & R Woodbridge Shopping Center, LLC 675 US Route 1 South
4 940926002 Xxxxxxx Xxxxxxxxx Chili Road @ Xxxxxx Road
5 1712 MBCC 45 LLC & MBCC 30 LLC Various
-----------------------------------------------------------------------------------------------------------------------------------
5.1 1712 MBCC 45 LLC & MBCC 30 LLC 00 Xxxxxxxxxx Xxxxx
5.2 1712 MBCC 45 LLC & MBCC 30 LLC 00 Xxxxxxxxxx Xxxxx
-----------------------------------------------------------------------------------------------------------------------------------
6 940925192 Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx, Route 228 @ Franklin Road
Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx
and Xxxxxx X. Xxxxxxx
7 940927284 Xxxxx Xxxxxxxxx 00000 Xxxxxxx Xxxxxx
8 01-04-030 Xxxxx Xxxxxxxx 0000 00xx Xxxxxx
9 940928146 Xxxxxxx X. Xxxxx 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx
10 1649 Salado Austin, Ltd. 0000 Xxxx Xxxxxxxx Xxxx
11 1497 Gateway Plaza Associates, LLC 420-490, 630, 000 Xxxxx Xxxxxx
12 1747 University Towers Apartment Corp 175 and 000 Xxxxxxxxxx Xxxxxx and
000 Xxxxxxx Xxxxx
13 1542 Palm Springs Mall, LLC 000 Xxxxx Xxxxxxx Xxxxx
00 00-00-000 Xxxx Xxxx 0000 Xxxxx Xxxxx Xxxxx
15 940926085 Xxxx X. Gold and Xxxx X. Xxxxxxxx 00000 Xxxxxxx Xxxxxx Xxxxx
16 1711 One Paragon Associates, L.P. 0 Xxxxxxx Xxxxx
00 0000 Xxxxxxxxx Funding Company, LLC 0000 Xxxxxxxxxx Xxxxx Xxxx
18 1760 Ritz Investment Group, L.P. 0000 Xxxxxxx Xxxxxx
19 1780 MOR Westview Building 5 LLC 0000 Xxxxxxxx Xxxxx
20 940925892 Xxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx 000 Xxxxxxxxxx Xxxxxxx 35 North
21 01-05-034 Xxxxx Abit Various
-----------------------------------------------------------------------------------------------------------------------------------
21.1 01-05-034a 0000 Xxxxx Xxxxxx
21.2 01-05-034b 0000 Xxxxxxxx Xxxxxx
21.3 01-05-034c # 0 Xxxxx Xxxxxx
21.4 01-05-034d 000 X Xxxxxxxxx Xxxx
21.5 01-05-034e 0000 Xxxxx Xxxx 57
21.6 01-05-034f 000 Xxxxxxxx, Xxxxx 1
-----------------------------------------------------------------------------------------------------------------------------------
22 940927319 Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx 0000-0000 Xxxxxxxx Xxxxxx
23 940927251 Xxxxxx X. Xxxxx 000 Xxxxx Xxxx Xxxxxx
24 01-06-130 Xxxxx Xxxxxx 1470 Xxxx Xxxx
00 00-00-000 Xxxxx Xxxxxx 0000 Xxxx Xxxx
00 00-00-000 Xxxxxx Xxxxxxxxx 00000 XX 441/27
27 940927025 Peppertree I, L.L.C., a Georgia limited liability company 0000 Xxxxxx Xxxxx Xxxxx
28 1726 Xxxx Forge Square, LLC 0000 Xxxxx Xxxx Xxxx
29 1703 000 Xxxx Xxxxxxxx Associates, LLC 000-000 Xxxx Xxxxxxxx Xxxxxx
30 1678 Charlestown Crossing Apartments, LLC 0000 Xxxxxxxxxxx Xxxxxxxx Xxx
31 1743 Xxxxx Edge Partners LLC 0000 Xxxxx Xxxx Xx.
32 940927461 Xxxxxxx Xxxxx Xxxx Xxxxx 0 & Xxxxxx Xxxx 000 X
00 0000 Xxxxxxx Shopping Center LP 0000 Xxxxxx Xxxxxx Xxxx
34 940925806 Xxxx X. Xxxxxxx, Xx. 000-000 Xxxxx Xxxxxx
35 1594 Cascades North Venture LP 00000 Xxxxxxx Xxxxxx Xxxxx
36 01-04-060 Xxxx Xxxxxxxx 7 & 0 Xxxxx Xxxx
37 01-06-077 SC/GA Apartment Ventures LLC Xxx Xxxxxxxx Xx. # 00
00 0000 00 Xxxx 00xx Xxxxxx, LLC 00-00 Xxxx 00xx Xxxxxx
39 1672 Xxxxxxx & White Building Venture, L.P. 00000 Xxxxxx Xxxxxx Xxxx
40 01-07-007 Xxxxxxx Xxxxx 0000 Xxxxxxxxxx Xxxxxx
41 1752 H.F. Partnership, LLP 00000 Xxxxxxxx Xx.
42 1660 OACC Investors, LLC 1910 & 0000 Xxxxxxxxx Xxxxxx &
0000 Xxxxxxxx Xxx.
43 940926649 Xxxxx Xxxxx, Xxxxxxx Xxxxxxxx and Xxxx Xxxxxxx 11141-11229 Tampa Avenue,
19450-19478 Xxxxxxx Street
44 940925076 Xxxxxxx Xxxxxxxxx 0000 Xxxx Xxxxxxx 74
45 1612 Beton Corporation, L.L.C. 00000 Xxxxxxx Xxxxx
46 1638 Mariner Center, L.P. 0000-0000 Xxxxxxxxxx Xxxx
47 940925958 Xxxxxx Xxxxxxxxx 0000 Xxxx Xxxxxxxx Xxxx
48 01-02-125 X'Xxxxxxx Development Group, Inc 00 Xxxxxx Xxxxxx Xxx
49 940926541 Xxxxxxx X. Xxxxx 00000 Xxxx Xxxxxxxxx
50 01-06-010 Xxxxxx Xxxxx 0000 Xxxxxxx Xxxx Xxxx
51 1748 HOAPT, LP 0000 X'Xxxxx Xxxxx
52 940926866 Xxxxxx X. Xxxxxx and Xxxxx X. Xxxx, Xx. 30501-30505 Xxxxxxx Xx Xxx Xxxxxx
00 0000 Xxxxxxxxx, LLC 000 Xxxxxx Xxxxxx
54 940926866 Xxxxxxx X. Xxxxxx 30501-30505 Xxxxxxx Xx Xxx Xxxxxx
00 0000 XXXXX, LLC Xxxxxxx River Parkway
56 1686 Springlake Apartments II, LLC 00 Xxxxxx Xxxx
57 940926866 Xxxxxx X. Xxxxxx and Xxxxx X. Xxxx, Xx. 30501-30505 Xxxxxxx Xx Xxx Xxxxxx
00 000000000 Xxxxxxx X. Xxxxx 00 Xxxxxxxx Xxxxxx
59 940927830 Xxxxxxx X. Xxxxx 0000 Xxxxxxxx Xxxxxxx Xxxxx
60 01-08-012 Xxxxxx Family 0000 X Xxxxxxx Xxxx Xxxx
61 940926866 Xxxxxx Xxxxxx and Xxxxx Xxxx 30501-30505 Xxxxxxx Xx Xxx Xxxxxx
00 0000 XXX Xxxxxxxxx, X.X. Various
-----------------------------------------------------------------------------------------------------------------------------------
62.1 1632 IMT Peachtree, L.P. 5720 Rampart
62.2 1632 IMT Peachtree, L.P. 6363 Skyline
-----------------------------------------------------------------------------------------------------------------------------------
63 1764 Discovery Lakes LLC 0000 Xxxxxxxxx Xxxxx
64 01-09-001 Xxxxxx Xxxx 0000 Xxxxxxxxxx Xx.
65 01-05-101 Xxxxxx Xxxxx 16800 Xxxx Xxxx
00 01-03-019 Xxxx Xxxxxx 00000 Xxxxxxxx Xxxx
67 1706 Tarheel Manor Associates, Limited Partnership 000 XXX 00 Xxxxxx
68 940924804 Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx 000 Xxxxxxxxx Xxxx
69 1693 RGBP, Limited Partnership 2600-2606 & 0000-0000 Xxxxx Xxxxx
Xxxxxx
70 01-02-010 Xxxx Xxxx 0000 X Xxxxxxx Xxx
71 940923962 Xxxxx X. Xxxxxxxx and Xxxxxx X. Council 0000 Xxxx Xxxxxx
72 1682 Shipyard Borrower LLC 0000 Xxxxxx Xxxxxx
73 1616 000 Xxxxx Xxxxx Xxxxxx Associates, L.P. 000 Xxxxx Xxxxx Xxx
00 0000 Xxxxxxx Pueblo Group Limited Parnership 0000 Xxxxxx Xxxxx Xx.
75 01-02-114 Xxxxx X Xxxxxxxxx 000 Xxxxxx Xxxxxx
76 940925823 Xxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx 0000 Xxxx Xxxxxxxx Xxxxxxxxx
77 1842 Sterling Systems, Inc. 13150 Bissonnet
78 0000 Xxxxx Xxxxxx LLC 0000 Xxxxx Xxxxxx
79 1687 Locarent, Inc. 0000 Xxxxxxx Xxxx
80 01-02-138 Xxxxxxx Xxxxxxx 0000 0xx Xxx. XX
81 01-02-069 Xxxxx Xxxxx 0000 X Xxxxx Xxxx
82 1695 Nico Terrace Apartments LLC 0000 Xxxxx Xxxxxx
83 01-06-023 Xxxxxxx Xxxxxx 0000 Xxxxx Xxxxxxx
84 1681 X.X. Xxxxxx, L.L.C. 000 Xxxxxx Xxxxxx'x Xxxxxxxxx
85 1617 Palm Villas of Scottsdale LLC 0000-0000 X. Xxxx Xxxx, 7001-7044 X.
Xxxxxxx St., 2001-2025 N. 00xx Xx.
00 0000 Xxxxxxx Properties, Ltd. 0000 Xxxxxx Xxxxx Xxxxx
87 01-06-117 Xxxxxxx Xxxxx, XX 1208, 1226 & 0000 Xxxxxxx Xxxxx
& 1227-1250 Xxxxxxx Xxxxx
00 0000 Xxxxxxx Xxxxxx, LLC 0000 Xxxx Xxxxxx
89 940923408 Xxxxx Xxxxx, Xxxxx Xxxxx and The Xxxxx Family Trust 0000-0000 Xxxx Xxxxxx X
U/T/D/ April 15, 1983
90 940927938 Xxxxxx Xxxxxxxx and Xxxx Xxxxxxxx 000 Xxxx Xx. Xxxxx Xxxxxx
91 940927354 Xxxxxxxx X. Xxxxxx and Xxx X. Xxxxxx 6863-6873 Xxxxxxx Xxxxxx
00 0000 Xxxxxxxxxxx, LLC 0000 Xxxxxxx Xxxx Xxxx
93 01-06-046 Xxxx Xxxxxx 00 Xxxx 000 Xxxxxxxxxxx Xxxx
00 00-00-000 Xxxxx Xxxxxx 632 Xxxxx Xxxxxxxx Ave
95 940926535 Xxxxxxx X. Xxxxxxx Various
96 01-06-045 Xxxx Xxxxxx Dec. of Trust 000 Xxxxxxx Xxxx
97 1699 Sherwood Pines, Ltd 0000 Xxxxxxxx Xxxx
98 01-08-025 Xxxxx Xxxxxx 0000 X Xxxxxx Xxxx
99 01-03-031 Xxxxxx Xxxxxxx 000 Xxxxx Xxxxxx Xx
100 01-08-018 Xxxxx 0000 X Xxxxxx Xxxxxx Xxxx
101 01-05-050 BHW Holdings Corp. 0000 Xxxxxxxxxx Xx.
102 01-08-019 Xxxxxx Xxxxx 0000 X Xxxxx Xxxx
103 1728 Lakewood Terrace Apartments, L.L.C. 0000 X. Xxxxxxx Xxxx
104 01-04-028 Xxxxxxx Xxxxxx 00000 Xxxx Xxxxxx Xxxxx
105 940927648 Xxxx Xxxxxxx and Xxxx Xxxxxxx 000-000 Xxxxxxxx Xxxxxx
106 01-06-079 SC/GA Apartment Ventures LLC 0000 Xxxxxx Xxx.
107 01-01-030 Xxxxxx Xxxx 43171, 43191 & 00000 Xxxxxxx Xxxxx
108 940926518 Xxxxxx X. Xxxxxxx and Xxxx Xxxxxxx 0000 Xxxxxxxxxx Xxxx Xxxxxx
109 1839 Tinkers Creek, LLC 0000 Xxxx 000xx Xxxxxx
110 01-05-078 Xxxxxx Xxxxxx 00000 Xxxxxx Xxxxxx
111 01-07-045 Xxxxxx Xxxxxx 2310 Xxxx Court
112 1772 Lake Plaza, LLC 00000 Xxxxxxxx Xxxx.
113 01-05-085 Xxxxxxx Xxxxxxx 0000-0000 Xxxx Xxxxx Xxxxxx
114 01-08-027 Xxxxxxx Xxxxxxx 812-823 9th & 10th Ave.
115 940926914 Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxxxxx 000 Xxxxxxxxx Xxxxxx Xxxxx
116 00-12-062 Xxxxx Xxxx 000 Xxxxx Xxxxxxx Xx
000 0000 Xxxxx Villas, LLC 0000-0000 Xxxxx Xxxxx Xxxx
118 01-02-111 Xxxx X. Xxxxxxxx 8401-8455 Virginia St.
119 940927340 Xxxxxxx Xxxxxxx and Xxxx Xxxxxxx 000 X. Xxxxxxxxxxxx Xxxx
120 940927668 Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx and Xxxx Xxxxx 0000 Xxxx Xxxx
121 940912685 Xxxx X. Xxxxx 0000 Xxxxx Xxxxxx
122 01-05-086 Xxxxx W Xxxxxxx Jr 32 Quarry Rd
123 940927348 Xxxxxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxx Xxxxxxxxxx Xxxxx
000 00-00-000 XX/XX Apartment Ventures LLC 000 Xxxxxx Xxxxxx
125 940927518 ERC Properties, Inc. 7500 Xxxxx Xxxx Road
126 01-05-063 Xxxxxx Xxxxxx 000 Xxxxx XXX Xxxxxx Xx
000 0000 Cordary Terraces, LLC 00000 Xxxxxxx Xxx.
128 940927011 Xxxxx Xxxx and Xxxxx X. Xxxx 0000 Xxxx Xxxx Xxxx Xxxxxxxxx
129 1757 575 Xxxxxxxxx, LLC 000 Xxxxxxxxx Xxxxxx
130 01-06-104 Xxxxx X Xxxxx 0000 X Xxxx Xxxxxx
131 1852 Mariposa Townhouses, L.P. 0000 Xxxxx Xxxxxx
132 01-06-084 SC/GA Apartment Ventures ::C 000 Xxxxxx Xxx
133 01-06-083 SC/GA Apartment Ventures LLC 000 Xxxx Xxxxxxxxxx Xx
134 1779 Lagoon Terraces, LLC 0000 X. Xxxxxx Xxx.
135 940926121 Uniprop, Inc. 0000 Xxxxxxx Xxxx
000 0000 Xxxxx Xxxxxxx, Ltd 0000 Xxxxxxxxxxx Xxxx
137 01-05-112 Xxxxxxxxxx 000 Xxxxxx Xxxx
138 1773 Amerisouth XVII, LTD 0000 Xxxxxxxx Xxxxxx
139 940920129 Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx 0000 Xxxx Xxxxx
000 00-00-000 Xxxxx Xxxxxxxx 0000 Xxxxx Xxx.
141 1778 Minola Road Ventures, LLC/Liberty-Minola Road, LLC Various
142 01-02-116 Xxxxxx Swolsk 0000 Xxxxxx Xxxx
143 940927402 Xxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxxxxxxx 0000 Xxxxxxx Xxxxx
144 01-06-085 SC/GA Apartment Ventures ::C 0000 X Xxxxxxxxx Xxxx.
145 1685 MacGregor Associates, Ltd. 0000 Xxxxx XxxXxxxxx
146 1809 Mill Creek Investments LLC 0000-0000 Xxxxxxx Xxx
147 01-05-079 Xxxxxx Xxxxxx 00000 Xxxxxx Xxxxxx
148 1741 Wendover Ridge, LLC 000 Xxxxxxx Xxxxxx
149 1690 Pine Xxxxxxx Investors, LTD 0000 Xxxxxxx-Xxxxxxxx Xxxx
150 1661 Xxxxxx Properties LLC 000 Xxxxx Xxxxx Xxxxxx
151 1803 Congress Gardens, Inc. 0000 Xxxx Xxxxxxxx Xxxxxx
152 1740 EWT LLC 4 00 Xxxxxx Xxxxxx
153 01-06-047 Xxxxxx 00000 Xxxxxxxx Xxxxx
154 1673 Westland Apartments, LLC 0000 Xxxxx Xxxxx Xxxx
155 940926634 Xxxxxx Xxxxx 000 X Xxxx Xxxxx
156 1691 Heritage Square of Guilford LLC 0000-00 Xxxx Xxxxxx
157 1713 Xxxxxx & Associates, LLC 000-000 Xxxxxxxxx Xxxxxx
158 1749 Tenants in Common (Four) 0000-0000 Xxxxx Xx.
159 940926481 Xxxxx X. Xxxxxxxx 0000 Xxxxxx Xxxxxx
160 1664 Windsor Oaks of Connecticut, Inc 000 Xxxx Xxxxxx
161 1654 Jamestown Manor Company, LLC 0000-0000 00xx Xx. XX
162 1730 00-00 Xxxxxx Xxxx, LLC 00-00 Xxxxxx Xxxx
163 1745 Elite Properties, LLC 000 - 000 Xxxxxxxxx Xxxxxx
000 0000 Mojave Storage Ventures,LLC 00000 Xxxxxxxxxx Xx
165 0000 Xxxxx Country West, LLC 000 X. Xxxxxxx 89
166 1684 Southwest Park Properties 0000 Xxxxx Xxxxx
000 0000 Xxxxxx Xxxxx LLC 000-000 Xxxx Xxx Xxxxx
168 1646 Xxxx Enterprises, LLC 0000 Xxxxx Xxxxxxx Xxxxxx
169 01-06-048 Xxxxxx 0000 Xxxxxxxx Xxxx
PROSUPP PROPERTY PROPERTY MORTGAGE RATE NET MORTGAGE ORIGINAL PRINCIPAL
LOAN ID PROPERTY CITY STATE ZIP AT ORIGINATION RATE BALANCE
------- ------------- ----- --- -------------- ---- -------
1 Xxxxxx Xxxx XX 00000 6.57% 6.47% $120,635,000
2 Xxxxxxx XX 00000 7.93% 7.86% $36,050,000
3 Xxxxxxxxxx XX 00000 7.48% 7.41% $36,000,000
4 Xxxxx XX 00000 7.24% 7.11% $25,800,000
5 Xxxxxx XX 00000 7.64% 7.57% $16,200,000
--------------------------------------------------------------------------------------------------------------------------------
5.1 Xxxxxx XX 00000 7.64% 7.64% $9,946,047
5.2 Xxxxxx XX 00000 7.64% 7.64% $6,253,953
--------------------------------------------------------------------------------------------------------------------------------
6 Xxxxxxxxx Xxxxxxxx XX 00000 7.71% 7.63% $16,000,000
7 Xxx Xxxxx XX 00000 7.27% 7.19% $15,400,000
8 Xxxxxxxx XX 00000 7.61% 7.49% $14,990,000
9 Xxxxxxx XX 00000 7.02% 6.92% $13,500,000
10 Xxxxxx XX 00000 7.44% 7.37% $13,200,000
11 Xxxxx Xxxx XX 00000 7.88% 7.81% $13,000,000
12 Xxxxxxxx XX 00000 7.38% 7.31% $13,000,000
13 Xxxx Xxxxxxx XX 00000 7.82% 7.75% $12,500,000
14 Xxxxxxx XX 00000 7.00% 6.93% $12,360,000
15 Xxx Xxxxx XX 00000 7.65% 7.57% $12,050,000
16 Xxxxxxxx XX 00000 7.67% 7.60% $11,480,000
17 Xxxxxxxxx XX 00000 7.34% 7.27% $11,200,000
18 Xxxxxxxxx XX 00000 6.92% 6.85% $11,200,000
19 Xxxxxxxxx XX 00000 7.38% 7.26% $11,000,000
20 Xxx Xxxxxxxxx XX 00000 7.07% 6.99% $10,880,000
21 Various WI Various 7.62% 7.55% $10,800,000
--------------------------------------------------------------------------------------------------------------------------------
21.1 Xxxxxxxxx XX 00000 0.00% $4,967,553
21.2 Xxxxxxx XX 00000 0.00% $2,345,148
21.3 Xxxxxxx xx Xxxxxxx XX 00000 0.00% $1,147,543
21.4 Xxxxxxx XX 00000 0.00% $839,478
21.5 Xxxxxxxxx XX 00000 0.00% $793,268
21.6 Xxxxxxxxxxxx XX 00000 0.00% $707,010
--------------------------------------------------------------------------------------------------------------------------------
22 Xxxxxx XX 00000 7.54% 7.41% $10,750,000
23 Xxxxxxxx Xxxxxxx XX 00000 7.00% 6.87% $10,720,000
00 Xxxxxxx Xxxxxxx XX 00000 7.00% 6.93% $9,940,000
00 Xxxxxxx Xxxxxxx XX 00000 7.00% 6.93% $9,940,000
26 Xxxxxxxxx XX 00000 7.50% 7.43% $9,700,000
00 Xxxxx Xxxxxxxxxx XX 00000 7.00% 6.92% $9,520,000
28 Xxxxxxx XX 00000 7.30% 7.23% $9,500,000
29 Xxxxxx XX 00000 7.54% 7.47% $9,500,000
00 Xxx Xxxxxx XX 00000 7.58% 7.51% $9,250,000
00 Xxxxxxx Xxxx XX 00000 7.25% 7.18% $9,200,000
32 Xxxxxxxx Xxxxx XX 00000 7.10% 7.02% $8,800,000
33 Xxxxxxx XX 00000 7.86% 7.79% $8,700,000
34 Xxxxxxx XX 00000 7.25% 7.17% $8,700,000
35 Xxxxxx XX 00000 7.12% 7.00% $8,600,000
36 Xxxxxxxxx XX 00000 7.93% 7.86% $8,400,000
37 Xxxxxxxxxx XX 00000 7.25% 7.17% $8,240,000
38 Xxx Xxxx XX 00000 7.32% 7.25% $8,200,000
39 Xxxxxx XX 00000 7.13% 7.06% $8,100,000
00 Xxxxxx XX 00000 8.00% 7.93% $8,000,000
41 Xxxx Xxx XX 00000 7.14% 7.00% $7,830,000
42 Xxxxxxx XX 00000 7.16% 7.09% $7,800,000
43 Xxxxxxxxxx XX 00000 7.55% 7.42% $7,750,000
00 Xxxxxx Xxxxx XX 00000 7.00% 6.92% $7,227,000
45 Xxxxxxx XX 00000 7.40% 7.28% $7,300,000
46 Xxxxxxx XX 00000 7.10% 7.03% $7,250,000
47 Xxxxxxxxx XX 00000 7.00% 6.89% $7,180,000
48 Xxxxxxxxx XX 00000 7.55% 7.48% $7,000,000
49 Xxxxxxx XX 00000 6.98% 6.90% $6,875,000
50 Xxxxxxxx Xxxxxxx XX 00000 7.13% 7.05% $6,695,000
51 Xxxxxxx XX 00000 7.28% 7.21% $6,600,000
00 Xxxxxx Xxxxx Xxxxxxxxx XX 00000 7.79% 7.68% $6,300,000
53 Xxx Xxxxxxxxx XX 00000 7.93% 7.86% $6,225,000
00 Xxxxxx Xxxxx Xxxxxxxxx XX 00000 7.61% 7.50% $6,195,000
55 Xxxxxxxx XX 00000 7.10% 6.98% $6,100,000
56 Xxxxxx Xxxx XX 00000 7.53% 7.39% $6,050,000
00 Xxxxxx Xxxxx Xxxxxxxxx XX 00000 7.72% 7.61% $5,785,000
58 Xxxxxxxxx XX 00000 7.52% 7.44% $5,700,000
59 Xxxxxxxx XX 00000 7.29% 7.21% $5,500,000
60 Xxxxxxx XX 00000 6.88% 6.81% $5,450,000
00 Xxxxxx Xxxxx Xxxxxxxxx XX 00000 7.49% 7.38% $5,396,000
62 Houston TX Various 7.02% 6.88% $5,350,000
--------------------------------------------------------------------------------------------------------------------------------
62.1 Xxxxxxx XX 00000 7.02% 7.02% $2,800,513
62.2 Xxxxxxx XX 00000 7.02% 7.02% $2,549,487
--------------------------------------------------------------------------------------------------------------------------------
63 Xxxxxxx XX 00000 7.40% 7.33% $5,250,000
64 Xxxxxxxx XX 00000 6.90% 6.83% $5,050,000
00 Xxx Xxxxx Xxxxxxxx XX 00000 7.08% 6.94% $5,000,000
66 Xxxxxxx XX 00000 7.25% 7.18% $4,840,000
67 Xxxxxxxx XX 00000 7.54% 7.47% $4,800,000
68 Xxxxxxxxxxx XX 00000 7.25% 7.17% $4,750,000
69 Xxxxxxxxxx XX 00000 7.66% 7.59% $4,650,000
70 Xxxxxxx XX 00000 7.40% 7.27% $4,625,000
71 Xxxxxxxxx XX 00000 7.25% 7.17% $4,500,000
72 Xxxxxxxxx XX 00000 7.43% 7.31% $4,425,000
00 Xxx Xxxxxxxxx XX 00000 7.50% 7.43% $4,290,000
74 Xxxxxxxxx XX 00000 6.92% 6.85% $4,200,000
75 Xxxxxxxxxxx XX 00000 7.36% 7.29% $4,200,000
76 Xx Xxxxx XX 00000 7.30% 7.17% $4,000,000
77 Xxxxxxx XX 00000 7.05% 6.98% $3,925,000
78 Xxxxxxx XX 00000 6.93% 6.76% $3,900,000
79 Xxxxxxxx XX 00000 7.31% 7.14% $3,780,000
80 Xxxxxxx XX 00000 6.68% 6.61% $3,750,000
00 Xxxxxxxx Xxxx XX 00000 7.25% 7.18% $3,750,000
82 Xxxxxxxxxxxxxx XX 00000 7.24% 7.17% $3,750,000
00 Xxxxxxxxx XX 00000 7.29% 7.22% $3,720,000
00 Xxxxx Xxxxxxxx XX 00000 7.44% 7.32% $3,700,000
85 Xxxxxxxxxx XX 00000 7.40% 7.33% $3,650,000
86 Xxxxxx XX 00000 7.32% 7.25% $3,500,000
00 Xxxxxxxxxxx XX 00000 7.30% 7.23% $3,480,000
88 Xxxxxxxxxxxx XX 00000 7.29% 7.22% $3,384,000
89 Xxxxxxxx XX 00000 8.43% 8.30% $3,400,000
90 Xxx Xxxxx XX 00000 7.01% 6.88% $3,300,000
91 Xxx Xxxxx XX 00000 7.37% 7.24% $3,200,000
92 Xxxxxxxxxx XX 00000 7.00% 6.93% $3,200,000
93 Xxxxxxxxxxx XX 00000 7.25% 7.18% $3,195,000
94 Xxxxxxxx Xxxx XX 00000 7.03% 6.96% $3,120,000
95 Xxxxxxx XX 00000 7.16% 7.03% $3,120,000
00 Xxx Xxxxx XX 00000 7.25% 7.18% $3,110,000
97 Xxxxxxx XX 00000 7.18% 7.01% $3,115,000
98 Xxxxxxxx XX 00000 7.03% 6.96% $3,095,000
99 Xxxxxxxxx XX 00000 7.25% 7.18% $3,040,000
100 Xxxxxxx XX 00000 7.15% 7.08% $3,034,000
000 Xxxxxxxxxx XX 00000 7.50% 7.43% $3,029,000
000 Xxxx XX 00000 7.15% 7.08% $3,015,000
000 Xxxxxxxxxxx XX 00000 7.25% 7.18% $3,000,000
000 Xxxxxxxx XX 00000 7.92% 7.85% $2,970,000
000 Xxxx Xxxxxx XX 00000 7.15% 7.02% $2,950,000
000 Xxxxxxxxx XX 00000 7.25% 7.17% $2,925,000
000 Xxxxxxx XX 00000 7.60% 7.48% $2,920,000
108 Xxxxxxxx Xxxxxxx XX 00000 7.25% 7.12% $2,900,000
000 Xxxxxxxx Xxxxxxx XX 00000 7.10% 7.03% $2,850,000
000 Xxxxxxx XX 00000 7.05% 6.97% $2,850,000
111 Xxxxxxxx XX 00000 7.00% 6.93% $2,800,000
000 Xxxxxxxxxx XX 00000 7.08% 7.01% $2,800,000
000 Xxxxxx XX 00000 7.25% 7.18% $2,775,000
114 Xxxxxxx XX 00000 6.68% 6.61% $2,750,000
115 Xxxxxxxxx XX 00000 7.57% 7.49% $2,750,000
000 Xxxxxx Xxxxx XX 00000 7.33% 7.26% $2,700,000
000 Xxxxx Xxxxxxx XX 00000 7.29% 7.15% $2,650,000
118 Xxxxxxxxxxxx XX 00000 7.69% 7.61% $2,600,000
119 Xxxxxx XX 00000 7.30% 7.17% $2,575,000
000 Xxxxxx XX 00000 7.28% 7.20% $2,500,000
000 Xxxxx XX 00000 7.92% 7.84% $2,430,000
000 Xxxxxxxxxx XX 00000 7.00% 6.93% $2,400,000
000 Xxxxxxx XX 00000 7.25% 7.12% $2,400,000
000 Xxxxxxxxxxx XX 00000 7.25% 7.17% $2,390,000
000 Xxxx Xxxxx XX 00000 7.31% 7.23% $2,354,000
000 Xxxxxxxxx XX 00000 7.25% 7.18% $2,345,000
000 Xxxxxxxxx XX 00000 7.39% 7.32% $2,344,000
000 Xxx Xxxxx XX 00000 7.65% 7.54% $2,310,000
000 Xxxxxxxxxx XX 00000 7.76% 7.69% $2,300,000
000 Xxxxxxxxxxxx XX 00000 7.25% 7.18% $2,236,000
131 Xxxxxxx XX 00000 6.90% 6.83% $2,200,000
000 Xxxx Xxxx XX 00000 7.25% 7.17% $2,150,000
000 Xxxxxxxxxxx XX 00000 7.25% 7.17% $2,100,000
000 Xxxxxxxxxx XX 00000 7.12% 7.05% $2,100,000
000 Xxxxxxxxxxxx XX 00000 7.00% 6.92% $2,000,000
136 Xxxx Xxxxx XX 00000 7.62% 7.48% $1,980,000
000 Xxxxxx XX 00000 7.19% 7.11% $1,920,000
000 Xxxxxx Xxxx XX 00000 7.01% 6.94% $1,875,000
000 Xxxxxxxx Xxxxxx XX 00000 7.00% 6.92% $1,850,000
000 Xxxxxxxx XX 00000 8.27% 8.20% $1,650,000
000 Xxxxxxxx XX 00000 7.35% 7.28% $1,640,000
000 Xxxxx XX 00000 7.25% 7.18% $1,550,000
000 Xxx Xxxxxxxxxx XX 00000 7.25% 7.17% $1,498,000
000 Xxxxxx XX 00000 7.25% 7.17% $1,500,000
000 Xxxxxxx XX 00000 7.79% 7.67% $1,500,000
000 Xxxxxxxxxx XX 00000 7.00% 6.93% $1,480,000
000 Xxxxxxx Xxxxxxxx XX 00000 7.00% 6.93% $1,400,000
000 Xxxxxxxxxx XX 00000 7.60% 7.53% $1,400,000
149 Xxxxxx XX 00000 7.73% 7.66% $1,380,000
000 Xxxxxxxx XX 00000 7.69% 7.62% $1,328,000
000 Xxxxxxxxx XX 00000 7.15% 7.08% $1,300,000
000 Xxxxxxxxxxxx XX 00000 7.61% 7.54% $1,200,000
000 Xxxxxxx Xxxxxxxx XX 00000 7.00% 6.93% $1,150,000
000 Xxxxxxxx XX 00000 7.83% 7.76% $1,120,000
155 Xxx Xxxxxxx XX 00000 7.86% 7.73% $1,100,000
000 Xxxx Xxxxx XX 00000 8.06% 7.99% $1,050,000
000 Xxxxxxx XX 00000 7.82% 7.75% $1,030,000
000 Xxxxxxxx XX 00000 7.64% 7.57% $1,005,000
000 Xxxxxx Xxxxxxx XX 00000 7.51% 7.38% $1,000,000
000 Xxx Xxxxx XX 00000 7.20% 7.13% $1,000,000
000 Xxxxxx XX 00000 7.28% 7.16% $980,000
000 Xxxxxxxxxxxx XX 00000 7.79% 7.72% $920,000
163 Xxxxxxxx XX 00000 7.80% 7.63% $920,000
000 Xxxxxxx XX 00000 8.67% 8.60% $868,000
000 Xxxxx Xxxxxx XX 00000 7.73% 7.66% $845,000
000 Xxxxxxxxx XX 00000 7.67% 7.60% $800,000
000 Xxxxx Xxxxx XX 00000 8.00% 7.93% $783,760
000 Xxx Xxxxx XX 00000 7.40% 7.33% $700,000
000 Xxxxxxxx XX 00000 7.00% 6.93% $650,000
PROSUPP CUTOFF DATE ORIGINAL REMAINING MATURITY ORIGINAL REMAINING MONTHLY SERVICING
LOAN ID PRINCIPAL BALANCE TERM TERM DATE AMORT AMORT PAYMENT FEE RATE
------- ----------------- ---- ---- ---- ----- ----- ------- --------
1 $120,635,000 120 118 10/10/11 360 360 $795,799 0.1000%
2 $35,879,968 120 115 07/01/11 300 295 $276,570 0.0700%
3 $35,814,360 132 127 07/01/12 300 295 $265,569 0.0700%
4 $25,764,765 120 118 10/01/11 360 358 $175,827 0.1300%
5 $16,159,752 120 116 08/01/11 360 356 $114,830 0.0700%
-------------------------------------------------------------------------------------------------------------------------------
5.1 $9,921,336 $70,500 0.0000%
5.2 $6,238,416 $44,330 0.0000%
-------------------------------------------------------------------------------------------------------------------------------
6 $15,912,458 120 111 03/01/11 360 351 $114,184 0.0800%
7 $15,357,991 120 116 08/01/11 360 356 $105,264 0.0800%
8 $14,952,470 84 80 08/01/08 360 356 $105,944 0.1200%
9 $13,480,539 120 118 10/01/11 360 358 $89,997 0.1000%
10 $13,190,085 126 119 11/01/11 360 359 $91,755 0.0700%
11 $13,000,000 120 108 12/01/10 332 332 $96,333 0.0700%
12 $12,965,498 180 176 08/10/16 360 356 $89,832 0.0700%
13 $12,412,198 120 109 01/01/11 360 349 $90,157 0.0700%
14 $12,342,095 120 118 10/01/11 360 358 $82,231 0.0700%
15 $12,013,862 120 115 07/01/11 360 355 $85,496 0.0800%
16 $11,451,698 120 116 08/01/11 360 356 $81,610 0.0700%
17 $11,176,392 120 117 09/01/11 360 357 $77,089 0.0700%
18 $11,174,023 120 117 09/01/11 360 357 $73,913 0.0700%
19 $10,977,027 120 117 09/01/11 360 357 $76,012 0.1200%
20 $10,855,604 120 117 09/01/11 360 357 $72,897 0.0800%
21 $10,767,329 120 115 07/01/11 360 355 $76,390 0.0700%
-------------------------------------------------------------------------------------------------------------------------------
21.1 $4,952,526 $35,136 0.0000%
21.2 $2,338,053 $16,588 0.0000%
21.3 $1,144,072 $8,117 0.0000%
21.4 $836,939 $5,938 0.0000%
21.5 $790,869 $5,611 0.0000%
21.6 $704,871 $5,001 0.0000%
-------------------------------------------------------------------------------------------------------------------------------
22 $10,722,600 120 116 08/01/11 360 356 $75,460 0.1300%
23 $10,704,471 120 118 10/01/11 360 358 $71,320 0.1300%
24 $9,917,356 120 117 09/01/11 360 357 $66,131 0.0700%
25 $9,917,356 120 117 09/01/11 360 357 $66,131 0.0700%
26 $9,649,377 120 112 04/01/11 360 352 $67,824 0.0700%
27 $9,520,000 120 118 10/01/11 360 360 $63,337 0.0800%
28 $9,474,278 60 56 08/01/06 360 356 $65,129 0.0700%
29 $9,470,652 120 115 07/01/11 360 355 $66,686 0.0700%
30 $9,221,730 120 115 07/01/11 360 355 $65,185 0.0700%
31 $9,174,779 120 116 08/01/11 360 356 $62,760 0.0700%
32 $8,800,000 120 120 12/01/11 360 360 $59,139 0.0800%
33 $8,635,058 120 108 12/01/10 360 348 $62,990 0.0700%
34 $8,622,789 120 112 04/01/11 300 292 $62,884 0.0800%
35 $8,545,260 120 111 03/01/11 360 351 $57,911 0.1200%
36 $8,380,653 120 116 08/01/11 360 356 $61,227 0.0700%
37 $8,217,383 120 116 08/01/11 360 356 $56,183 0.0700%
38 $8,182,636 120 117 09/01/11 360 357 $56,328 0.0700%
39 $8,065,474 120 114 06/01/11 360 354 $54,599 0.0700%
40 $7,991,588 120 119 11/01/11 300 299 $61,745 0.0700%
41 $7,785,404 240 237 09/01/21 240 237 $61,366 0.1400%
42 $7,766,995 60 54 06/01/06 360 354 $52,734 0.0700%
43 $7,730,297 120 116 08/01/11 360 356 $54,455 0.1300%
44 $7,216,531 120 118 10/01/11 360 358 $48,081 0.0800%
45 $7,215,646 120 112 04/01/11 264 256 $56,082 0.1200%
46 $7,214,313 60 53 05/01/06 360 353 $48,722 0.0700%
47 $7,180,000 120 120 12/01/11 360 360 $47,769 0.1100%
48 $6,971,008 120 116 08/01/11 300 296 $51,957 0.0700%
49 $6,840,131 120 113 05/01/11 360 353 $45,647 0.0800%
50 $6,689,646 120 119 11/01/11 360 359 $45,105 0.0700%
51 $6,582,041 120 116 08/01/11 360 356 $45,158 0.0700%
52 $6,284,945 120 116 08/01/11 360 356 $45,308 0.1050%
53 $6,183,329 120 113 05/01/11 300 293 $47,757 0.0700%
54 $6,179,490 120 116 08/01/11 360 356 $43,784 0.1050%
55 $6,082,649 120 116 08/01/11 360 356 $40,994 0.1200%
56 $6,031,260 120 115 07/01/11 360 355 $42,427 0.1400%
57 $5,770,921 120 116 08/01/11 360 356 $41,325 0.1050%
58 $5,660,238 120 110 02/01/11 360 350 $39,933 0.0800%
59 $5,492,582 120 118 10/01/11 360 358 $37,669 0.0800%
60 $5,445,426 60 59 11/01/06 360 359 $35,821 0.0700%
61 $5,382,071 120 116 08/01/11 360 356 $37,693 0.1050%
62 $5,318,580 60 52 04/01/06 360 352 $35,666 0.1400%
-------------------------------------------------------------------------------------------------------------------------------
62.1 $2,784,066 $18,670 0.0000%
62.2 $2,534,514 $16,996 0.0000%
-------------------------------------------------------------------------------------------------------------------------------
63 $5,239,086 120 117 09/01/11 360 357 $36,350 0.0700%
64 $5,045,778 120 119 11/01/11 360 359 $33,259 0.0700%
65 $4,985,691 120 116 08/01/11 360 356 $33,517 0.1300%
66 $4,840,000 120 120 12/01/11 360 360 $33,017 0.0700%
67 $4,785,172 120 115 07/01/11 360 355 $33,694 0.0700%
68 $4,727,489 120 113 05/01/11 360 353 $32,403 0.0800%
69 $4,636,093 120 115 07/01/11 360 355 $33,024 0.0700%
70 $4,618,932 120 118 10/01/11 360 358 $32,023 0.1300%
71 $4,493,870 120 118 10/01/11 360 358 $30,698 0.0800%
72 $4,410,924 120 115 07/01/11 360 355 $30,728 0.1200%
73 $4,253,652 120 112 04/10/11 300 292 $31,703 0.0700%
74 $4,190,258 120 117 09/01/11 360 357 $27,717 0.0700%
75 $4,188,792 120 116 08/01/11 360 356 $28,960 0.0700%
76 $3,996,910 120 119 11/01/11 360 359 $27,423 0.1300%
77 $3,921,814 120 119 11/01/11 360 359 $26,245 0.0700%
78 $3,888,440 120 116 08/01/11 360 356 $25,764 0.1700%
79 $3,767,591 120 115 07/01/11 360 355 $25,940 0.1700%
80 $3,750,000 120 120 12/01/11 360 360 $24,148 0.0700%
81 $3,747,075 120 119 11/01/11 360 359 $25,582 0.0700%
82 $3,737,463 60 55 07/01/06 360 355 $25,556 0.0700%
83 $3,712,068 120 117 09/01/11 360 357 $25,478 0.0700%
84 $3,680,771 120 115 07/01/11 300 295 $27,198 0.1200%
85 $3,630,468 60 52 04/01/06 360 352 $25,272 0.0700%
86 $3,488,540 120 115 07/01/11 360 355 $24,043 0.0700%
87 $3,475,318 120 118 10/01/11 360 358 $23,858 0.0700%
88 $3,372,833 120 115 07/01/11 360 355 $23,177 0.0700%
89 $3,370,603 120 104 08/01/10 360 344 $25,975 0.1300%
90 $3,292,499 120 117 09/01/11 360 357 $21,977 0.1300%
91 $3,197,563 120 119 11/01/11 360 359 $22,091 0.1300%
92 $3,192,702 60 58 10/01/06 300 298 $22,617 0.0700%
93 $3,190,647 120 118 10/01/11 360 358 $21,796 0.0700%
94 $3,117,459 120 119 11/01/11 360 359 $20,827 0.0700%
95 $3,109,291 120 117 09/01/11 300 297 $22,371 0.1300%
96 $3,105,763 120 118 10/01/11 360 358 $21,216 0.0700%
97 $3,097,981 120 115 07/01/11 300 295 $22,375 0.1700%
98 $3,092,480 120 119 11/01/11 360 359 $20,660 0.0700%
99 $3,037,629 120 119 11/01/11 360 359 $20,738 0.0700%
100 $3,029,763 120 118 10/01/11 360 358 $20,492 0.0700%
101 $3,022,848 120 117 09/01/11 360 357 $21,179 0.0700%
102 $3,010,790 120 118 10/01/11 360 358 $20,364 0.0700%
103 $2,991,776 60 56 08/01/06 360 356 $20,465 0.0700%
104 $2,961,741 120 115 07/01/11 360 355 $21,636 0.0700%
105 $2,950,000 120 120 12/01/11 300 300 $21,133 0.1300%
106 $2,916,972 120 116 08/01/11 360 356 $19,944 0.0700%
107 $2,912,671 120 116 08/01/11 360 356 $20,617 0.1200%
108 $2,897,738 120 119 11/01/11 360 359 $19,783 0.1300%
109 $2,847,074 120 119 11/01/11 324 323 $19,789 0.0700%
110 $2,843,573 120 117 09/01/11 360 357 $19,047 0.0700%
111 $2,793,622 120 117 09/01/11 360 357 $18,628 0.0700%
112 $2,790,254 120 117 09/01/11 300 297 $19,933 0.0700%
113 $2,772,835 120 119 11/01/11 360 359 $18,930 0.0700%
114 $2,750,000 120 120 12/01/11 360 360 $17,709 0.0700%
115 $2,741,223 120 117 09/01/11 300 297 $20,448 0.0800%
116 $2,694,296 120 117 09/01/11 360 357 $18,565 0.0700%
117 $2,642,807 120 116 08/01/11 360 356 $18,150 0.1400%
118 $2,593,615 120 116 08/01/11 360 356 $18,510 0.0700%
119 $2,569,522 120 117 09/01/11 360 357 $17,653 0.1300%
120 $2,494,657 120 117 09/01/11 360 357 $17,105 0.0800%
121 $2,424,388 180 176 08/01/16 360 356 $17,695 0.0800%
122 $2,396,523 120 118 10/01/11 360 358 $15,967 0.0700%
123 $2,394,774 120 118 10/01/11 300 298 $17,347 0.1300%
124 $2,383,440 120 116 08/01/11 360 356 $16,296 0.0700%
125 $2,350,841 180 178 10/01/16 360 358 $16,154 0.0800%
126 $2,341,805 120 118 10/01/11 360 358 $15,997 0.0700%
127 $2,334,630 120 114 06/01/11 360 354 $16,213 0.0700%
128 $2,300,613 120 116 08/01/11 300 296 $17,297 0.1100%
129 $2,295,607 120 117 09/01/11 360 357 $16,493 0.0700%
130 $2,231,188 120 117 09/01/11 360 357 $15,253 0.0700%
131 $2,200,000 120 120 12/01/11 300 300 $15,409 0.0700%
132 $2,144,099 120 116 08/01/11 360 356 $14,660 0.0700%
133 $2,094,236 120 116 08/01/11 360 356 $14,319 0.0700%
134 $2,092,741 120 117 09/01/11 300 297 $15,004 0.0700%
135 $1,995,444 120 117 09/01/11 360 357 $13,306 0.0800%
136 $1,967,779 60 54 06/01/06 300 294 $14,787 0.1400%
137 $1,915,807 120 117 09/01/11 360 357 $13,015 0.0700%
138 $1,868,393 120 117 09/01/11 300 297 $13,264 0.0700%
139 $1,847,320 120 118 10/01/11 360 358 $12,308 0.0800%
140 $1,644,760 120 114 06/01/11 360 354 $12,419 0.0700%
141 $1,634,557 120 117 09/01/11 300 297 $11,960 0.0700%
142 $1,550,000 120 120 12/01/11 360 360 $10,574 0.0700%
143 $1,495,959 120 118 10/01/11 360 358 $10,219 0.0800%
144 $1,495,883 120 116 08/01/11 360 356 $10,228 0.0700%
145 $1,492,724 120 115 07/01/11 300 295 $11,369 0.1200%
146 $1,477,856 120 118 10/01/11 360 358 $9,846 0.0700%
147 $1,396,811 120 117 09/01/11 360 357 $9,314 0.0700%
148 $1,396,486 120 116 08/01/11 360 356 $9,885 0.0700%
149 $1,360,215 180 175 07/01/16 180 175 $12,974 0.0700%
150 $1,319,912 120 114 06/01/11 300 294 $9,979 0.0700%
151 $1,295,344 120 118 10/01/11 240 238 $10,196 0.0700%
152 $1,196,996 120 116 08/01/11 360 356 $8,481 0.0700%
153 $1,147,380 120 117 09/01/11 360 357 $7,651 0.0700%
154 $1,113,359 120 114 06/01/11 300 294 $8,519 0.0700%
155 $1,095,707 120 116 08/01/11 300 296 $8,388 0.1300%
156 $1,041,750 120 115 07/01/11 240 235 $8,822 0.0700%
157 $1,025,949 120 116 08/01/11 300 296 $7,827 0.0700%
158 $1,000,908 120 116 08/01/11 300 296 $7,519 0.0700%
159 $997,432 120 116 08/01/11 360 356 $6,999 0.1300%
160 $981,721 120 114 06/01/11 180 174 $9,100 0.0700%
161 $972,559 120 113 05/01/11 300 293 $7,102 0.1200%
162 $917,801 120 116 08/01/11 360 356 $6,616 0.0700%
163 $916,367 120 116 08/01/11 300 296 $6,979 0.1700%
164 $865,117 120 116 08/01/11 300 296 $7,089 0.0700%
165 $835,266 180 176 08/01/16 180 176 $7,944 0.0700%
166 $788,464 180 175 07/01/16 180 175 $7,494 0.0700%
167 $770,470 180 174 06/01/16 180 174 $7,490 0.0700%
168 $696,808 120 113 05/01/11 360 353 $4,847 0.0700%
169 $648,519 120 117 09/01/11 360 357 $4,324 0.0700%
PROSUPP ACTUAL/ ANTICIPATED REVISED GROUND LETTER OF
LOAN ID 360? REPAYMENT DATE? RATE LEASE CROSSED ORIGINATOR GUARANTOR CREDIT
------- ---- --------------- ---- ----- ------- ---------- --------- ------
1 Yes No Yes JPM No
2 Yes No No JPM No
3 Yes No No JPM No
4 Yes No No PNC No
5 Yes No No JPM No
--------------------------------------------------------------------------------------------------------------------------------
5.1 No JPM
5.2 No JPM
--------------------------------------------------------------------------------------------------------------------------------
6 Yes No No PNC No
7 Yes No No PNC No
8 Yes No No LaSalle No
9 Yes No No PNC No
10 Yes No No JPM No
11 Yes No No JPM No
12 Yes No No JPM No
13 Yes No No JPM Yes
14 Yes No No LaSalle No
15 Yes No No PNC Yes
16 Yes No No JPM No
17 Yes No No JPM No
18 Yes No No JPM No
19 Yes No No JPM Yes
20 Yes No No PNC No
21 Yes No LaSalle No
--------------------------------------------------------------------------------------------------------------------------------
21.1 No LaSalle
21.2 Yes LaSalle
21.3 No LaSalle
21.4 No LaSalle
21.5 No LaSalle
21.6 No LaSalle
--------------------------------------------------------------------------------------------------------------------------------
22 Yes No No PNC No
23 Yes No No PNC No
24 Yes No No LaSalle No
25 Yes No No LaSalle No
26 Yes No No LaSalle No
27 Yes No No PNC No
28 Yes No No JPM No
29 Yes No No JPM No
30 Yes No No JPM No
31 Yes No No JPM No
32 Yes No No PNC No
33 Yes No No JPM No
34 Yes No No PNC No
35 Yes No No JPM No
36 Yes No No LaSalle No
37 Yes No No 1 LaSalle No
38 Yes No No JPM No
39 Yes No No JPM No
40 Yes No No LaSalle No
41 No No No JPM No
42 Yes No No JPM No
43 Yes No No PNC No
44 Yes No Yes PNC No
45 Yes No No JPM No
46 Yes No No JPM No
47 Yes No Yes PNC No
48 Yes No No LaSalle No
49 Yes No No PNC No
50 Yes No No LaSalle No
51 Yes No No JPM No
52 Yes No No PNC No
53 Yes No No JPM No
54 Yes No No PNC No
55 Yes No No JPM No
56 Yes No No JPM No
57 Yes No No PNC No
58 Yes No No PNC Yes
59 Yes No No PNC No
60 Yes No No LaSalle No
61 Yes No No PNC Yes
62 Yes Yes No JPM No
--------------------------------------------------------------------------------------------------------------------------------
62.1 No JPM
62.2 No JPM
--------------------------------------------------------------------------------------------------------------------------------
63 Yes No No JPM No
64 Yes No No LaSalle No
65 Yes No No LaSalle No
66 Yes No No LaSalle No
67 Yes No No JPM No
68 Yes No No PNC No
69 Yes No Yes JPM No
70 Yes No No LaSalle No
71 Yes No No PNC No
72 Yes No No JPM No
73 Yes No No JPM No
74 Yes No No JPM No
75 Yes No No LaSalle No
76 Yes No No PNC No
77 Yes No No JPM No
78 Yes No No JPM No
79 Yes No No JPM No
80 Yes No No 2 LaSalle No
81 Yes No No LaSalle Yes
82 Yes No No JPM No
83 Yes No No LaSalle No
84 Yes No No JPM No
85 Yes No No JPM No
86 Yes No No JPM No
87 Yes No No LaSalle No
88 Yes No No JPM No
89 Yes No No PNC No
90 Yes No No PNC No
91 Yes No No PNC No
92 Yes No No JPM No
93 Yes No No LaSalle No
94 Yes No No LaSalle No
95 Yes No No PNC No
96 Yes No No LaSalle No
97 Yes No No JPM No
98 Yes No No LaSalle No
99 Yes No No LaSalle No
100 Yes No No LaSalle No
101 Yes No No LaSalle No
102 Yes No No LaSalle No
103 Yes No No JPM No
104 Yes No No LaSalle No
105 Yes No No PNC No
106 Yes No No 1 LaSalle No
107 Yes No No LaSalle No
108 Yes No No PNC No
109 Yes No No JPM No
110 Yes No No LaSalle No
111 Yes No No LaSalle No
112 Yes No No JPM No
113 Yes No No LaSalle No
114 Yes No No 2 LaSalle No
115 Yes No No PNC No
116 Yes No No LaSalle No
117 Yes No No JPM No
118 Yes No No LaSalle No
119 Yes No No PNC No
120 Yes No No PNC No
121 Yes No No PNC No
122 Yes No No LaSalle No
123 Yes No No PNC No
124 Yes No No 1 LaSalle No
125 Yes No No PNC No
126 Yes No No LaSalle No
127 Yes No No JPM No
128 Yes No No PNC No
129 Yes No No JPM No
130 Yes No No LaSalle No
131 Yes No No JPM No
132 Yes No No 1 LaSalle No
133 Yes No No 1 LaSalle No
134 Yes No No JPM No
135 Yes No No PNC No
136 Yes No No JPM No
137 Yes No No LaSalle No
138 Yes No No JPM No
139 Yes No No PNC No
140 Yes No No LaSalle No
141 Yes No No JPM No
142 Yes No No LaSalle No
143 Yes No No PNC No
144 Yes No No 1 LaSalle No
145 Yes No No JPM No
146 Yes No No JPM No
147 Yes No No LaSalle No
148 Yes No No JPM No
149 Yes No No JPM No
150 Yes No No JPM No
151 Yes No No JPM No
152 Yes No No JPM No
153 Yes No No LaSalle No
154 Yes No No JPM No
155 Yes No No PNC No
156 Yes No No JPM No
157 Yes No No JPM No
158 Yes No No JPM No
159 Yes No No PNC No
160 Yes No No JPM No
161 Yes No No JPM No
162 Yes No No JPM No
163 Yes No No JPM No
164 Yes No No JPM No
165 Yes No No JPM No
166 Yes No No JPM No
167 Yes No No JPM No
168 Yes No No JPM No
169 Yes No No LaSalle No
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Though Certificates, Series 2001-C1
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
RE: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1
--------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of December 1, 2001 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, Midland Loan Services, Inc. as Servicer, Midland Loan
Services, Inc., as Special Servicer, Xxxxx Fargo Bank Minnesota, N.A., as
Trustee, and LaSalle Bank National Association, as Paying Agent, on behalf of
the holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1 (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 S, 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 "1933 Act")) and has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Certificates, and the
Purchaser and any accounts for which it is acting are each able to
bear the economic risk of the Purchaser's or such account's
investment. The Purchaser is acquiring the Certificates purchased by
it for its own account or for one or more accounts (each of which is
an "institutional accredited investor") as to each of which the
Purchaser exercises sole investment discretion. The Purchaser hereby
undertakes to reimburse the Trust Fund for any costs incurred by it
in connection with this transfer.
--------------------
* Purchaser must include one of the following two certifications.
[_] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities
Act of 1933, as amended (the "1933 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 to (i) "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 or (ii)
(other than with respect to a Class S or Residual Certificate) to institutional
"accredited investors" meeting the requirements of Rule 501(a)(1), (2), (3) or
(7) of Regulation D promulgated under the 1933 Act, pursuant to any other
exemption from the registration requirements of the 1933 Act, subject in the
case of this clause (ii) 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 1933 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 1933 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 1933 Act, by
reason of a specified exemption from the registration provisions of the 1933 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 1933 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 [either
(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 or (ii)]*** 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 Forms
W-8BEN or]*** IRS Forms 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.
--------------------
** 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 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:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
9. The Purchaser is (i) not purchasing a Class R or Class LR
Certificate or (ii) is not a partnership, (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is
owned, directly or indirectly, through one or more partnerships, trusts or other
pass-through entities, by a non-U.S. Person.
Very truly yours,
---------------------------------------
[The Purchaser]
By:
------------------------------------
Name:
Title:
Dated:
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO
SECTION 860E(E)(4) OF
THE INTERNAL REVENUE
CODE OF 1986, AS
AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which [he/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 2001-C1,
Class [R] [LR] Certificate (the "Class [R] [LR] Certificate") is not a
Disqualified Organization (as defined below) or an agent thereof (including
nominee, middleman or other similar person) (an "Agent"), an ERISA Prohibited
Holder or a Non-U.S. Person (as defined below). For these purposes, a
"Disqualified Organization" means any of (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, majority
of its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Servicer based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause any of the Upper-Tier REMIC, the Lower-Tier
REMIC or the Loan 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) subject
to any federal, state or local law which is, to a material extent, similar to
the foregoing provisions of ERISA or the Code (each, a "Plan") or a person
acting on behalf of or investing the assets of such a Plan. For these purposes,
"Non-U.S. Person" means any person other than a U.S. Person (within the meaning
of Section 7701(a)(30) of the Code), unless, with respect to the Transfer of a
Residual Certificate, (i) such person holds such Residual Certificate in
connection with the conduct of a trade or business within the United States and
furnishes the Transferor and the Certificate Registrar with an effective
Internal Revenue Service Form W-8ECI or (ii) the Transferee delivers to both the
Transferor and the Certificate Registrar an opinion of a nationally recognized
tax counsel to the effect that such Transfer is in accordance with the
requirements of the Code and the regulations promulgated thereunder and that
such Transfer of the Residual Certificate will not be disregarded for federal
income tax purposes; provided, that a partnership (including any entity treated
as a partnership for U.S. federal income tax purposes) shall be considered a
Non-U.S. Person (and clause (i) of this sentence shall not apply) if any of its
interests are owned, directly or indirectly, through 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 as of December 1, 2001 among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as Depositor, Midland Loan Services, Inc.,
as Servicer, Midland Loan Services, Inc., as Special Servicer, Xxxxx Fargo Bank
Minnesota, N.A., as Trustee, and LaSalle Bank National Association, as Paying
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] [Lower-Tier REMIC and the Loan REMIC], the
Transferee agrees to act as "tax matters person" and to perform the functions of
"tax matters person" of the [Upper-Tier REMIC] [Lower-Tier REMIC and the Loan
REMIC] pursuant to Section 10.01(c) of the Pooling and Servicing Agreement, and
agrees to the irrevocable designation of the Trustee as the Transferee's agent
in performing the function of "tax matters person."
9. The Transferee has reviewed, and agrees to be bound by and to
abide by, the provisions of Section 5.02(d) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of Class [R] [LR]
Certificates.
10. [INSERT APPROPRIATE PARAGRAPH, IF APPLICABLE.] [The Transferee
has computed any consideration paid to it to acquire the Class [R][LR]
Certificate in accordance with proposed U.S. Treasury Regulations Sections
1.860E-1(a)(4)(iii) and 1.860E-1(c)(5) (or, after they have been finalized, the
final regulations) by computing present values using a discount rate equal to
the applicable Federal rate prescribed by Section 1274(d) of the Code compounded
semi-annually.]
[The Transferee has computed any consideration paid to it to acquire
the Class [R][LR] Certificate in accordance with proposed U.S. Treasury
Regulations Sections 1.860E-1(a)(4)(iii) and 1.860E-1(c)(5) (or, after they have
been finalized, the final regulations) by computing present values using a
discount rate at least equal to the rate at which the Transferee regularly
borrows, in the ordinary course of its trade or business, substantial funds from
unrelated third parties. The Transferee has provided all information necessary
to demonstrate to the transferor that the Transferee regularly borrows at such
rate.]
[The transfer of the Class [R][LR] Certificate complies with Section
6 of Revenue Procedure 2001-12 (the "Revenue Procedure"), 2001-3 I.R.B. 335
(January 16, 2001) (or comparable provisions of applicable final U.S. Treasury
Regulations) and, accordingly.
(i) the Transferee is an "eligible corporation," as defined in
section 860L(a)(2) of the Code, as to which income from the 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
Section 860L(g) of the Code) 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 Section 860L(a)(2)
of the Code, in a transaction that satisfies the requirements of Section 4
of the Revenue Procedure;
(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 transfer) that
the Transferee has determined in good faith.]
[Reserved]
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of __________,
20__.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 20__.
------------------------------
NOTARY PUBLIC
COUNTY OF
--------------------
STATE OF
---------------------
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle Bank National Association
as Authenticating Agent and Certificate Registrar
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Though Certificates, Series 2001-C1
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1
-------------------------------------------------------------
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 paragraph 3 thereof are not satisfied
or, after conducting a reasonable investigation of the financial condition of
the transferee, that the information contained in paragraph 3 thereof is not
true.
Very truly yours,
[Transferor]
----------------------
EXHIBIT E
REQUEST FOR RELEASE
[Date]
----------
Xxxxx Fargo Bank Minnesota, N.A.
0000 00xx Xxxxxx , X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Mortgage Document Custody (CMBS)
Re: X.X. Xxxxx Commercial Mortgage Securities Corp,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1,
REQUEST FOR RELEASE
-------------------------------------------------------------
Dear ,
-----------------------
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing Agreement,
dated as of December 1, 2001 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as depositor,
Midland Loan Services, Inc. as servicer, Midland Loan Services, Inc., as special
servicer, LaSalle Bank National Association, as paying agent and you, as
Trustee, the undersigned hereby requests a release of the Mortgage File (or the
portion thereof specified below) held by or on behalf of you as Trustee with
respect to the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. Mortgage Loan paid in full. The [Servicer] [Special
Servicer] hereby certifies that all amounts received in
connection with the Mortgage Loan have been or will be
credited to the Certificate Account pursuant to the
Pooling and Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[SERVICER] [SPECIAL SERVICER]
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Though Certificates, Series 2001-C1
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1
-------------------------------------------------------------
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 2001-C1, Class __
(the "Certificate") issued pursuant to that certain Pooling and Servicing
Agreement, dated as of December 1, 2001 (the "Pooling and Servicing Agreement"),
by and among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as
depositor (the "Depositor"), Midland Loan Services, Inc., as servicer (in such
capacity, the "Servicer"), Midland Loan Services, Inc., as special servicer (in
such capacity, the "Special Servicer"), Xxxxx Fargo Bank Minnesota, N.A., as
trustee (the "Trustee"), and LaSalle Bank National Association, as paying agent
(the "Paying Agent"). Capitalized terms used and not otherwise defined herein
have the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) 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 general account 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 Prohibited Transaction Class
Exemption 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 result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA, the prohibited
transaction provisions of the Code or the provisions of any Similar Law,
(without regard to the identity or nature of the other Holders of Certificates
of any Class) 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 Placement Agent or the Depositor to any obligation or liability
(including obligations or liabilities under ERISA, Section 4975 of the Code or
any such Similar Law) in addition to those set forth in the Pooling and
Servicing Agreement, which Opinion of Counsel shall not be at the expense of the
Depositor, the Servicer, the Special Servicer, the Trustee, the Paying Agent,
the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 2001.
Very truly yours,
---------------------------------------
[The Purchaser]
By:
------------------------------------
Name:
Title:
EXHIBIT G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
Available upon request of paying agent.
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 "Xxxxx Fargo Bank Minnesota, N.A., as trustee for the
registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1" (the "Assignee"),
having an office at 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000,
Attn: Corporate Trust Administration CMBS, Ref X.X. Xxxxxx Commercial Mortgage
Securities Corp. 2001-C1, 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 [ ], 2001.
[NAME OF CURRENT ASSIGNOR]
By:
----------------------------------
Name:
Title:
EXHIBIT I-1
FORM OF REGULATION S TRANSFER CERTIFICATE
FOR TRANSFERS DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Though Certificates, Series 2001-C1
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates,
Series 2001-C1, Class __
-------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.2(b) of the
Pooling and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc. as Servicer, Midland
Loan Services, Inc., as Special Servicer, Xxxxx Fargo Bank Minnesota, N.A., as
Trustee, and LaSalle Bank National Association, as Paying Agent, on behalf of
the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1, Class __ (the
"Certificates") in connection with the transfer by the undersigned (the
"Transferor") to _________________ (the "Transferee") of $__________________
[Certificate Balance] [Notional Amount]of Certificates, in fully registered form
(each, an "Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance] [Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream].**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
--------------------
* 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
FOR TRANSFERS AFTER RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Though Certificates, Series 2001-C1
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1,
Class __
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.2(b) the Pooling
and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc. as Servicer, Midland
Loan Services, Inc., as Special Servicer, Xxxxx Fargo Bank Minnesota, N.A., as
Trustee, and LaSalle Bank National Association, as Paying Agent, on behalf of
the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1, Class __ (the
"Certificates") in connection with the transfer by the undersigned (the
"Transferor") to _________________ (the "Transferee") of $__________________
[Certificate Balance][Notional Amount] of Certificates, in fully registered form
(each, an "Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance][Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated:
--------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT J
FORM OF PURCHASE OPTION NOTICE
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Servicer Group--
X.X. Xxxxxx Xxxxx Commercial Mortgage Corporation
Commercial Mortgage Pass-Through Certificates, Series 2001-C1
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Corporation
Commercial Mortgage Pass-Through Certificates, Series 2001-C1
-------------------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement (the "Pooling and Servicing Agreement") dated as of December 1, 2001,
by and among X.X. Xxxxxx Chase Commercial Mortgage Corporation, as depositor
(the "Depositor"), Midland Loan Services, Inc., as master servicer (the "Master
Servicer"), Midland Loan Services, Inc., as special servicer (the "Special
Servicer'), Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee"), and
LaSalle Bank National Association, as paying agent (the "Paying 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 Master 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
Master 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 Master 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 Master 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 Master 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 EXCHANGE OR TRANSFER
FROM RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING THE RESTRICTED PERIOD
(PURSUANT TO SECTION 5.2(B) OF THE POOLING AND SERVICING AGREEMENT)
LaSalle Bank National Association
as Certificate Registrar
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Though Certificates, Series 2001-C1
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities
------------------------------------------------------------
Corp., Commercial Mortgage Pass-Through Certificates, Series
------------------------------------------------------------
2001-C1, Class __
-----------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of December 1, 2001 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor,
Midland Loan Services, Inc. as Servicer, Midland Loan Services, Inc., as Special
Servicer, Xxxxx Fargo Bank Minnesota, N.A., as Trustee, and LaSalle Bank
National Association, as Paying Agent, on behalf of the holders of X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1. 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.
--------------------
* Select appropriate depository.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States],*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].**
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated:
--------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT L
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
FOR LOANS HAVING BALANCE OF (A) $5,000,000 OR LESS,
OR (B) LESS THAN 1% OF OUTSTANDING POOL
BALANCE, WHICHEVER IS LESS
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: Midland Loan Services, Inc., in its capacity
as Servicer (the "Servicer") under the Pooling and Servicing Agreement
dated as of December 1, 2001 (the "Pooling and Servicing Agreement"),
among the Servicer, Xxxxx Fargo Bank Minnesota, N.A. as Trustee, and
others.
Date: , 20
--------- ---
Re:
---------------------------------------------
Commercial Mortgage Pass-Through Certificates
Series
-----------
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. [Note: all terms in this
Certification must be conformed to terms used in the Pooling and Servicing
Agreement]
As Servicer under the Pooling and Servicing Agreement, we hereby:
1. Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan,
of the type checked below:
____ a full defeasance of the payments scheduled to be due in
respect of the entire principal balance of the Mortgage
Loan; or
____ a partial defeasance of the payments scheduled to be due
in respect of a portion of the principal balance of the
Mortgage Loan that represents ___% of the entire
principal balance of the Mortgage Loan and, under the
Mortgage, has an allocated loan amount of $____________
or _______% of the entire principal balance;
2. Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A
hereto, which exceptions the Servicer has determined,
consistent with the Servicing Standard, will have no material
adverse effect on the Mortgage Loan or the defeasance
transaction:
a. The Mortgage Loan Documents permit the defeasance, and
the terms and conditions for defeasance specified
therein were satisfied in all material respects in
completing the defeasance.
b. The defeasance was consummated on __________, 20__.
c. The defeasance collateral consists of securities that
(i) constitute "government securities" as defined in
Section 2(a)(16) of the Investment Company Act of 1940
as amended (15 U.S.C. 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
Standard & Poor's, (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. Such securities have the
characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
------------------------------------------------
d. The Servicer received an opinion of counsel (from
counsel approved by Servicer in accordance with the
Servicing Standard) that the defeasance will not result
in an adverse REMIC event.
e. The Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") as
to which one of the statements checked below is true:
____ the related Mortgagor was a Single-Purpose Entity
(as defined in Standard & Poor's Structured
Finance Ratings Real Estate Finance Criteria, as
amended to the date of the defeasance (the "S&P
Criteria")) as of the date of the defeasance, and
after the defeasance owns no assets other than the
defeasance collateral and real property securing
Mortgage Loans included in the pool.
____ the related Mortgagor designated a Single-Purpose
Entity (as defined in the S&P Criteria) to own the
defeasance collateral; or
____ the Servicer designated a Single-Purpose Entity
(as defined in the S&P Criteria) established for
the benefit of the Trust to own the defeasance
collateral.
f. The Servicer received a broker or similar confirmation
of the credit, or the accountant's letter described
below contained statements that it reviewed a broker or
similar confirmation of the credit, of the defeasance
collateral to an Eligible Account (as defined in the S&P
Criteria) in the name of the Defeasance Obligor, which
account is maintained as a securities account by the
Trustee acting as a securities intermediary.
g. As securities intermediary, Trustee is obligated 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").
h. The Servicer received from the Mortgagor written
confirmation from a firm of independent certified public
accountants, who were approved by Servicer in accordance
with Accepted Master Servicing Practices or Accepted
Special Servicing Practices, as applicable, stating that
(i) revenues from principal and interest payments made
on the defeasance collateral (without taking into
account any earnings on reinvestment of such revenues)
will be sufficient to timely pay each of the Scheduled
Payments after the defeasance including the payment in
full of the Mortgage Loan (or the allocated portion
thereof in connection with a partial defeasance) on its
Maturity Date (or, in the case of an ARD Loan, on its
Anticipated Repayment Date), (ii) the revenues received
in any month from the defeasance collateral will be
applied to make Scheduled Payments within four (4)
months after the date of receipt, and (iii) interest
income from the defeasance collateral to the Defeasance
Obligor in any calendar or fiscal year will not exceed
such Defeasance Obligor's interest expense for the
Mortgage Loan (or the allocated portion thereof in a
partial defeasance) for such year.
i. The Servicer received opinions from counsel, who were
approved by Servicer in accordance with Accepted Master
Servicing Practices or Accepted Special Servicing
Practices, as applicable, that (i) the agreements
executed by the Mortgagor and/or the Defeasance Obligor
in connection with the defeasance are enforceable
against them in accordance with their terms, and (ii)
the Trustee will have a perfected, first priority
security interest in the defeasance collateral described
above.
j. The agreements executed in connection with the
defeasance (i) permit reinvestment of proceeds of the
defeasance collateral only in Permitted Investments (as
defined in the S&P Criteria), (ii) permit release of
surplus defeasance collateral and earnings on
reinvestment to the Defeasance Obligor or the Mortgagor
only after the Mortgage Loan has been paid in full, if
any such release is permitted, (iii) prohibit any
subordinate liens against the defeasance collateral, and
(iv) provide for payment from sources other than the
defeasance collateral or other assets of the Defeasance
Obligor of all fees and expenses of the securities
intermediary for administering the defeasance and the
securities account and all fees and expenses of
maintaining the existence of the Defeasance Obligor.
k. The entire principal balance of the Mortgage Loan as of
the date of defeasance was $___________ [$5,000,000 or
less or less than one percent of pool balance, whichever
is less] which is less than 1% of the aggregate
Certificate Balance of the Certificates as of the date
of the most recent Paying Agent's Monthly
Certificateholder Report received by us (the "Current
Report").
l. 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.
3. Certify that, in addition to the foregoing, Servicer has
imposed such additional conditions to the defeasance, subject
to the limitations imposed by the Mortgage Loan Documents, as
are consistent with Accepted Master Servicing Practices or
Accepted Special Servicing Practices, as applicable.
4. Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the
Defeasance Obligor, and opinions of counsel and independent
accountants executed and delivered in connection with the
defeasance described above and that originals or copies of
such agreements, instruments and opinions have been
transmitted to the Trustee for placement in the related
Mortgage File or, to the extent not required to be part of the
related Mortgage File, are in the possession of the Servicer
as part of the Servicer's Mortgage File.
5. Certify and confirm that the determinations and certifications
described above were rendered in accordance with Accepted
Master Servicing Practices or Accepted Special Servicing
Practices, as applicable, set forth in, and the other
applicable terms and conditions of, the Pooling and Servicing
Agreement.
6. 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.
7. 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.
SERVICER:
--------------------------------
By:
--------------------------------------
Name:
Title:
EXHIBITS M TO M-14
AVAILABLE UPON REQUEST OF PAYING AGENT
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR EXCHANGE OR TRANSFER
FROM RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER THE RESTRICTED PERIOD
(PURSUANT TO SECTION 5.2(B) OF THE POOLING AND SERVICING AGREEMENT)
LaSalle Bank National Association
as Certificate Registrar
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Though Certificates, Series 2001-C1
RE: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
-------------------------------------------------------------------
Commercial Mortgage Pass-Through Certificates, Series 2001-C1,
-------------------------------------------------------------------
Class __
---------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of December 1, 2001 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor,
Midland Loan Services, Inc. as Servicer, Midland Loan Services, Inc., as Special
Servicer, Xxxxx Fargo Bank Minnesota, N.A., as Trustee, and LaSalle Bank
National Association, as Paying Agent, on behalf of the holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Rule 144A Book-Entry Certificate (CUSIP No. ________) with
the Depository in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Book-Entry Certificate (Common
Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
--------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE FOR EXCHANGE OR TRANSFER
FROM REGULATION S BOOK-ENTRY CERTIFICATE
TO RULE 144A BOOK-ENTRY CERTIFICATE
(PURSUANT TO SECTION 5.2(B) OF THE POOLING AND SERVICING AGREEMENT)
LaSalle Bank National Association
as Certificate Registrar
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Though Certificates, Series 2001-C1
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of December 1, 2001 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor,
Midland Loan Services, Inc. as Servicer, Midland Loan Services, Inc., as Special
Servicer, Xxxxx Fargo Bank Minnesota, N.A., as Trustee, and LaSalle Bank
National Association, as Paying Agent, on behalf of the holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1. 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.
--------------------
* Select appropriate depository.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer, the Special Servicer and Placement Agents of the offering of the
Certificates.
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated:
EXHIBIT P
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Though Certificates, Series 2001-C1
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
--------------------------------------------------------------------
Commercial Mortgage Pass-Through Certificates, Series 2001-C1,
-------------------------------------------------------------
Class __
--------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.2(b) of the
Pooling and Servicing Agreement, dated as of December 1, 2001 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc. as Servicer, Midland
Loan Services, Inc., as Special Servicer, Xxxxx Fargo Bank Minnesota, N.A., as
Trustee, and LaSalle Bank National Association, as Paying Agent, on behalf of
the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1 in connection with
the transfer by _______________ of a beneficial interest of $___________
[Certificate Balance] [Notional Amount] in a Book-Entry Certificate during the
Restricted Period to the undersigned (the "Transferee"). The Transferee desires
to beneficially own such transferred interest in the form of the Regulation S
Book-Entry Certificate. Capitalized terms used but not defined herein shall have
the meanings given to them in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the Paying Agent, the Servicer and the Special Servicer.
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated:
SCHEDULE 1
[RESERVED]
---------------------------------
SCHEDULE 2
----------
Mortgage Loans Containing Additional Debt
ID PROPERTY NAME
-- -------------
1 Newport Centre
23 The Falls at Quail Lake Apartments
85 Palm Villas Apartments
SCHEDULE 3
----------
Mortgage Loans which represent over 2% of the Initial Pool Balance
ID PROPERTY NAME % OF INITIAL POOL BALANCE
-------------------------------------------------------------------------
1 Newport Centre 11.7%
2 WestCoast Grand on Fifth Avenue 3.5%
3 Plaza at Woodbridge 3.5%
0 Xxxxxxxx Xxxxx 2.5%
SCHEDULE 4
----------
Mortgage Loans which Initially Pay Interest Only
REMAINING INTEREST-ONLY
ID MORTGAGED PROPERTY NAME PERIOD (MONTHS)
-- ----------------------- ---------------
1 Newport Centre 22
10 Salado at Xxxxxx Xxxxx 0
00 Xxxxxxx Xxxxx Shopping 6
Center
27 Peppertree Apartments 22
SCHEDULE 5
----------
Mortgage Loans which are Not Defeasance Loans
ID PROPERTY NAME
-- -------------
9 The Windward Apartments
18 Country Club Villas
28 Xxxx Forge
46 Mariner Village Shopping Center
49 The Bayberrytree Apartments
59 Victoria Station Apartments
62 IMT Peachtree Apartments
Portfolio
74 Granada Pueblo Apartments
76 La Habra Town Center
