EXHIBIT 4.1
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DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION,
Depositor
[____________],
Master Servicer
[____________],
Special Servicer
and
[____________],
Trustee and Paying Agent
_______________________________________
POOLING AND SERVICING AGREEMENT
Dated as of [_________]
_______________________________________
COMM 200[_]-[__]
Commercial Mortgage Pass-Through Certificates
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms..................................................5
Section 1.02 Certain Calculations..........................................79
Section 1.03 Certain Constructions.........................................81
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans; Assignment of Mortgage Loan
Purchase Agreements..........................................81
Section 2.02 Acceptance by Custodian and the Trustee.......................88
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Repurchase and Substitution of Mortgage Loans.....89
Section 2.04 Representations, Warranties and Covenants of the Master
Servicer, Special Servicer and Trustee.......................96
Section 2.05 Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests................................100
Section 2.06 Miscellaneous REMIC and Grantor Trust Provisions.............100
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
Section 3.01 The Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of
the Mortgage Loans and the [_____] B Loan...................101
Section 3.02 Liability of the Master Servicer.............................104
Section 3.03 Collection of Mortgage Loan and [_____] B Loan Payments......105
Section 3.04 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.............................................105
Section 3.05 Collection Account; Excess Liquidation Proceeds Account;
Distribution Accounts; Interest Reserve Account and Loan
Combination Collection Account..............................107
Section 3.06 Permitted Withdrawals from the Collection Account, the
Distribution Accounts and the Loan Combination
Collection Account; Trust Ledger............................114
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Section 3.07 Investment of Funds in the Collection Account, the Loan
Combination Collection Account, REO Account, the
Lock-Box Accounts, the Cash Collateral Accounts and the
Reserve Accounts............................................128
Section 3.08 Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage.............................130
Section 3.09 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions...........................135
Section 3.10 Appraisals; Realization Upon Defaulted Mortgage Loans........140
Section 3.11 Trustee to Cooperate; Release of Mortgage Files..............145
Section 3.12 Servicing Fees, Trustee Fees and Special Servicing
Compensation................................................146
Section 3.13 Reports to the Trustee; Collection Account Statements........151
Section 3.14 Access to Certain Documentation..............................155
Section 3.15 Title and Management of REO Properties and REO Accounts......155
Section 3.16 Sale of Specially Serviced Loans and REO Properties..........160
Section 3.17 Additional Obligations of The Master Servicer and Special
Servicer; Inspections.......................................165
Section 3.18 Authenticating Agent.........................................166
Section 3.19 Appointment of Custodians....................................167
Section 3.20 Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts...............................167
Section 3.21 Property Advances............................................167
Section 3.22 Appointment of Special Servicer..............................171
Section 3.23 Transfer of Servicing Between The Master Servicer and the
Special Servicer; Record Keeping; Asset Status Report.......172
Section 3.24 [Reserved]...................................................176
Section 3.25 Limitations on and Authorizations of the Applicable
Servicer and Special Servicer with Respect to Certain
Mortgage Loans..............................................176
Section 3.26 Certain Rights and Obligations of the Special Servicer.......177
Section 3.27 Modification, Waiver, Amendment and Consents.................178
Section 3.28 Rights of Holders of the [________] Loan Combination.........183
Section 3.29 Certain Intercreditor Matters Relating to the Loan
Combinations................................................184
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................186
Section 4.02 Statements to Certificateholders; Reports by Trustee;
Other Information Available to the Holders and Others.......202
Section 4.03 Compliance with Withholding Requirements.....................209
Section 4.04 REMIC Compliance.............................................209
Section 4.05 Imposition of Tax on the Trust Fund..........................212
Section 4.06 Remittances..................................................213
Section 4.07 P&I Advances.................................................213
Section 4.08 Grantor Trust Reporting......................................217
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ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................217
Section 5.02 Registration, Transfer and Exchange of Certificates..........221
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............231
Section 5.04 Appointment of Paying Agent..................................232
Section 5.05 Access to Certificateholders' Names and Addresses............232
Section 5.06 Actions of Certificateholders................................232
ARTICLE VI
THE DEPOSITOR, THE SERVICERS AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer............................................233
Section 6.02 Merger or Consolidation of the Master Servicer...............233
Section 6.03 Limitation on Liability of the Depositor, the Applicable
Servicer and Others.........................................233
Section 6.04 Limitation on Resignation of the Master Servicer and the
Special Servicer; Termination of the Master Servicer and
the Special Servicer........................................235
Section 6.05 Rights of the Depositor and the Trustee in Respect of the
Applicable Servicer and the Special Servicer................236
Section 6.06 The Master Servicer or Special Servicer as Owners of a
Certificate.................................................237
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................238
Section 7.02 Trustee to Act; Appointment of Successor.....................243
Section 7.03 Notification to Certificateholders and Other Persons.........244
Section 7.04 Other Remedies of Trustee....................................244
Section 7.05 Waiver of Past Events of Default; Termination................245
Section 7.06 Trustee as Maker of Advances.................................245
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee............................................245
Section 8.02 Certain Matters Affecting the Trustee........................247
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans........249
Section 8.04 Trustee May Own Certificates.................................250
Section 8.05 Payment of Trustee's Fees and Expenses; Indemnification......250
Section 8.06 Eligibility Requirements for Trustee.........................252
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Section 8.07 Resignation and Removal of the Trustee.......................253
Section 8.08 Successor Trustee............................................254
Section 8.09 Merger or Consolidation of Trustee...........................254
Section 8.10 Appointment of Co-Trustee or Separate Trustee................254
ARTICLE IX
TERMINATION
Section 9.01 Termination..................................................256
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Counterparts.................................................260
Section 10.02 Limitation on Rights of Certificateholders...................260
Section 10.03 Governing Law................................................261
Section 10.04 Notices......................................................261
Section 10.05 Severability of Provisions...................................262
Section 10.06 Notice to the Depositor and Each Rating Agency...............262
Section 10.07 Amendment....................................................264
Section 10.08 Confirmation of Intent.......................................266
Section 10.09 No Intended Third-Party Beneficiaries........................267
Section 10.10 [Reserved]...................................................267
Section 10.11 Entire Agreement.............................................267
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness........................267
Section 11.02 Filing Obligations...........................................268
Section 11.03 Form 10-D Filings............................................268
Section 11.04 Form 10-K Filings............................................269
Section 11.05 Xxxxxxxx-Xxxxx Certification.................................270
Section 11.06 Form 8-K Filings.............................................271
Section 11.07 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports..........................272
Section 11.08 Annual Compliance Statements.................................273
Section 11.09 Annual Reports on Assessment of Compliance with Servicing
Criteria....................................................273
Section 11.10 Annual Independent Public Accountants' Servicing Report......274
Section 11.11 Exchange Act Reporting Indemnification.......................275
Section 11.12 Amendments...................................................276
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TABLE OF EXHIBITS
Exhibit A-1 Form of [Class A-1] Certificate
Exhibit A-2 Form of [Class A-2] Certificate
Exhibit A-3 Form of [Class A-3] Certificate
Exhibit A-4 Form of [Class A-4] Certificate
Exhibit A-5 Form of [Class A-AB] Certificate
Exhibit A-6 Form of [Class A-5A] Certificate
Exhibit A-7 Form of [Class A-5B] Certificate
Exhibit A-8 Form of [Class A-1A] Certificate
Exhibit A-9 Form of [Class X-C] Certificate
Exhibit A-10 Form of [Class X-P] Certificate
Exhibit A-11 Form of [Class A-J] Certificate
Exhibit A-12 Form of [Class B] Certificate
Exhibit A-13 Form of [Class C] Certificate
Exhibit A-14 Form of [Class D] Certificate
Exhibit A-15 Form of [Class E] Certificate
Exhibit A-16 Form of [Class F] Certificate
Exhibit A-17 Form of [Class G] Certificate
Exhibit A-18 Form of [Class H] Certificate
Exhibit A-19 Form of [Class J] Certificate
Exhibit A-20 Form of [Class K] Certificate
Exhibit A-21 Form of [Class L] Certificate
Exhibit A-22 Form of [Class M] Certificate
Exhibit A-23 Form of [Class N] Certificate
Exhibit A-24 Form of [Class O] Certificate
Exhibit A-25 Form of [Class P] Certificate
Exhibit A-26 Form of [Class R] Certificate
Exhibit A-27 Form of [Class LR] Certificate
Exhibit B-1 Mortgage Loan Schedule
Exhibit B-2 Servicing Fee Rate Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Securities Legend
Exhibit G Form of Regulation S Transfer Certificate
Exhibit H Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global
Certificate during the Restricted Period
Exhibit I Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global
Certificate after the Restricted Period
Exhibit J Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Rule 144A Global Certificate
Exhibit K Form of Distribution Date Statement
Exhibit L Form of Investor Certification
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Exhibit M Intentionally Deleted
Exhibit N Form of Purchase Option Notice
Exhibit O Form of Notification from Custodian
Exhibit P-1 Form of Closing Date Trustee Certification
Exhibit P-2 Form of Post-Closing Trustee Certification
Exhibit Q Form of Notice to the Trustee and [S&P] from the Master
Servicer Regarding Defeasance of a Mortgage Loan
Exhibit R Information Request Form
TABLE OF SCHEDULES
Schedule I [Class A-AB] Planned Principal Balance Schedule
Schedule II Rates to be Used in Determining the [Class X-C] and
[Class X-P] Pass-Through Rates
Schedule III Relevant Servicing Criteria
Schedule IV Additional 10-D Information
Schedule V Additional 10-K Information
Schedule VI Additional 8-K Information
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Pooling and Servicing Agreement, dated as of [________], among
Deutsche Mortgage & Asset Receiving Corporation, as Depositor, [________], as
the Master Servicer with respect to all of the Mortgage Loans [________] (the
"Master Servicer"), [________], as Special Servicer and [________], as Trustee
and Paying Agent.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary Statement shall have
the meanings specified in Article I hereof)
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple Classes which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund consisting primarily of the
Mortgage Loans.
The Lower-Tier REMIC will hold the Mortgage Loans and certain other
related assets subject to this Agreement, and will issue (i) the uncertificated
[Class A-1L-1] Interest, [Class A-1L-2] Interest, [Class A-1L-3] Interest,
[Class A-1L-4] Interest, [Class A-2L-1] Interest, [Class A-2L-2] Interest,
[Class A-2L-3] Interest, [Class A-2L-4] Interest, [Class A-2L-5] Interest,
[Class A-2L-6] Interest, [Class A-3L] Interest, [Class A-4L] Interest, [Class
A-ABL-1] Interest, [Class A-ABL-2] Interest, [Class A-5AL-1] Interest, [Class
A-5AL-2] Interest, [Class A-5AL-3] Interest, [Class A-5AL-4] Interest, [Class
A-5AL-5] Interest, [Class A-5AL-6] Interest, [Class A-5BL] Interest, [Class
A-1AL-1] Interest, [Class A-1AL-2] Interest, [Class A-1AL-3] Interest, [Class
A-1AL-4] Interest, [Class A-1AL-5] Interest, [Class A-1AL-6] Interest, [Class
A-1AL-7] Interest, [Class A-1AL-8] Interest, [Class A-1AL-9] Interest, [Class
A-1AL-10] Interest, [Class A-1AL-11] Interest, [Class A-1AL-12] Interest, [Class
A-1AL-13] Interest, [Class A-1AL-14] Interest, [Class A-1AL-15] Interest, [Class
A-JL] Interest, [Class X-X] Interest, [Class C-L] Interest, [Class D-L-1]
Interest, [Class D-L-2] Interest, [Class E-L-1] Interest, [Class E-L-2]
Interest, [Class E-L-3] Interest, [Class E-L-4] Interest, [Class F-L-1]
Interest, [Class F-L-2] Interest, [Class G-L-1] Interest, [Class G-L-2]
Interest, [Class G-L-3] Interest, [Class H-L-1] Interest, [Class H-L-2]
Interest, [Class X-X-1] Interest, [Class X-X-2] Interest, [Class K-L-1]
Interest, [Class K-L-2] Interest, [Class L-L] Interest, [Class M-L] Interest,
[Class N-L] Interest, [Class O-L] Interest and [Class P-L] Interest (the
"Lower-Tier Regular Interests"), as classes of regular interests in the
Lower-Tier REMIC, and (ii) the [Class LR] Certificates, which will represent the
sole class of residual interests in the Lower-Tier REMIC, within the meaning of
the REMIC Provisions.
The Upper-Tier REMIC will hold the Lower-Tier Regular Interests and
certain other related assets subject to this Agreement and will issue [__]
Classes of regular interests in the Upper-Tier REMIC. The [Class A-1], [Class
A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class
A-1A], [Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O] and [Class P] Certificates (the "Regular
Certificates") are designated as classes of regular interests, and the [Class R]
Certificates are designated as the sole class of residual interests, in the
Upper-Tier REMIC.
The portions of the Trust Fund consisting of the Loan REMIC Residual
Interest, and related amounts in the Grantor Trust Distribution Account shall be
treated as a grantor trust
(the "Grantor Trust") for federal income tax purposes. The [Class LR]
Certificates will represent the sole interests in the portion of the Grantor
Trust representing the Loan REMIC Residual Interest under federal income tax
law.
The Mortgaged Property that secures the Mortgage Loan identified as
Loan No. [_] on the Mortgage Loan Schedule (the "[________] Mortgage Loan"),
also secures one separate mortgage loan to the same Borrower (referred to herein
as the "[________] B Loan" and together with the [________] Mortgage Loan, the
"[________] Loan Combination" or the "Loan Combination") which is subordinate to
the [________] Mortgage Loan. The Loan Combination will be serviced pursuant to
this Agreement and the [________] Intercreditor Agreement, as and to the extent
provided herein. Amounts attributable to the [ ] B Loan will not be assets of
the Trust Fund or the Trust REMICs and will be beneficially owned by the [_____]
B Loan Noteholder.
The following table sets forth the Class designation, the
corresponding Lower-Tier Regular Interests (the "Corresponding Lower-Tier
Regular Interests") and the aggregate initial Certificate Balance (or, with
respect to the [Class X-C] and [Class X-P] Certificates, Notional Balance) for
each Class of Certificates comprising interests in the Upper-Tier REMIC.
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Corresponding Corresponding
Certificate Lower-Tier Original Lower- Components of
Corresponding Balance or Regular Tier Principal [Class X]
Certificates Notional Balance Interest(s) Balance(2) Certificates
----------------- ---------------- ------------- --------------- -------------
[Class A-1](1)... $[________] [A-1L-1] $[________] [A-1L-1]
[A-1L-2] $[________] [A-1L-2]
[A-1L-3] $[________] [A-1L-3]
[A-1L-4] $[________] [A-1L-4]
[Class A-2]...... $[________] [A-2L-1] $[________] [A-2L-1]
[A-2L-2] $[________] [A-2L-2]
[A-2L-3] $[________] [A-2L-3]
[A-2L-4] $[________] [A-2L-4]
[A-2L-5] $[________] [A-2L-5]
[A-2L-6] $[________] [A-2L-6]
[Class A-3]...... $[________] [A-3L] $[________] [A-3L]
[Class A-4]...... $[________] [A-4L] $[________] [A-4L]
[Class A-AB]..... $[________] [A-ABL-1] $[________] [A-ABL-1]
[A-ABL-2] $[________] [A-ABL-2]
[Class A-5A]..... $[________] [A-5AL-1] $[________] [A-5AL-1]
[A-5AL-2] $[________] [A-5AL-2]
[A-5AL-3] $[________] [A-5AL-3]
[A-5AL-4] $[________] [A-5AL-4]
[A-5AL-5] $[________] [A-5AL-5]
[A-5AL-6] $[________] [A-5AL-6]
[Class A-5B]..... $[________] [A-5BL] $[________] [A-5BL]
[Class A-1A]..... $[________] [A-1AL-1] $[________] [A-1AL-1]
[A-1AL-2] $[________] [A-1AL-2]
[A-1AL-3] $[________] [A-1AL-3]
[A-1AL-4] $[________] [A-1AL-4]
[A-1AL-5] $[________] [A-1AL-5]
[A-1AL-6] $[________] [A-1AL-6]
[A-1AL-7] $[________] [A-1AL-7]
[A-1AL-8] $[________] [A-1AL-8]
[A-1AL-9] $[________] [A-1AL-9]
[A-1AL-10] $[________] [A-1AL-10]
[A-1AL-11] $[________] [A-1AL-11]
[A-1AL-12] $[________] [A-1AL-12]
[A-1AL-13] $[________] [A-1AL-13]
[A-1AL-14] $[________] [A-1AL-14]
[A-1AL-15] $[________] [A-1AL-15]
[Class X-C]...... $[________](1) $[________]
[Class X-P]...... $[________](1) $[________]
[Class A-J]...... $[________] [A-JL] $[________] [A-JL]
[Class B]........ $[________] [X-X] $[________] [X-X]
[Class C]........ $[________] [C-L] $[________] [C-L]
[Class D]........ $[________] [D-L-1] $[________] [D-L-1]
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Corresponding Corresponding
Certificate Lower-Tier Original Lower- Components of
Corresponding Balance or Regular Tier Principal [Class X]
Certificates Notional Balance Interest(s) Balance(2) Certificates
----------------- ---------------- ------------- --------------- -------------
[D-L-2] $[________] [D-L-2]
[Class E]........ $[________] [E-L-1] $[________] [E-L-1]
[E-L-2] $[________] [E-L-2]
[E-L-3] $[________] [E-L-3]
[E-L-4] $[________] [E-L-4]
[Class F]........ $[________] [F-L-1] $[________] [F-L-1]
[F-L-2] $[________] [F-L-2]
[Class G]........ $[________] [G-L-1] $[________] [G-L-1]
[G-L-2] $[________] [G-L-2]
[G-L-3] $[________] [G-L-3]
[Class H]........ $[________] [H-L-1] $[________] [H-L-1]
[H-L-2] $[________] [H-L-2]
[Class J]........ $[________] [X-X-1] $[________] [X-X-1]
[X-X-2] $[________] [X-X-2]
[Class K]........ $[________] [K-L-1] $[________] [K-L-1]
[K-L-2] $[________] [K-L-2]
[Class L]........ $[________] [L-L] $[________] [L-L]
[Class M]........ $[________] [M-L] $[________] [M-L]
[Class N]........ $[________] [N-L] $[________] [N-L]
[Class O]........ $[________] [O-L] $[________] [O-L]
[Class P]........ $[________] [P-L] $[________] [P-L]
[Class R]........ $[________] N/A $[________] N/A
[Class LR]....... $[________] N/A $[________] N/A
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(1) Each [Class A-1] Certificate represents ownership of a regular interest in
the Upper-Tier REMIC.
(2) The initial Notional Balance of the [Class X-C] Certificates is equal to
the aggregate of the Notional Amounts of the Components as of the Closing
Date; the initial Notional Balance of the [Class X-P] Certificates is
equal to the aggregate of the Notional Amount of the [Class X-P]
Components as of the Closing Date.
(3) The Lower-Tier Regular Interests and the Corresponding Components of the
[Class X] Certificates that correspond to any particular Class of
Certificates also correspond to each other and, accordingly, constitute
the Corresponding Lower-Tier Regular Interest and the "Corresponding
Components," respectively, with respect to each other.
The initial Certificate Balance of each of the [Class R] and [Class
LR] Certificates is zero. Additionally, the [Class R] and [Class LR]
Certificates do not have a Notional Balance. The Certificate Balance of any
Class of Certificates outstanding at any time represents the maximum amount
which holders thereof are entitled to receive as distributions allocable to
principal from the cash flow on the Mortgage Loans and the other assets in the
Trust Fund; provided, however, that in the event that amounts previously
allocated as Realized Losses to a Class of Certificates in reduction of the
Certificate Balance thereof are subsequently recovered (including without
limitation after the reduction of the Certificate Balance of such Class to
zero), such Class may receive distributions in respect of such recoveries in
accordance with the priorities set forth in Section 4.01.
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As of the Cut-off Date, the Mortgage Loans have an aggregate
Stated Principal Balance equal to approximately $[________].
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the other
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article.
"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 and the [_____] B Loan.
"Additional Servicer": Each Affiliate of [specify sponsors] that
Services any of the Mortgage Loans and each Person who is not an Affiliate of
the [specify sponsors], other than the Special Servicer, who Services 10% or
more of the Mortgage Loans[, including, if applicable, the Trustee or Paying
Agent].
"Additional Trust Fund Expense": Any expense incurred with respect
to the Trust Fund and not otherwise included in the calculation of a Realized
Loss that would result in the Holders of Regular Certificates receiving less
than the full amount of principal and/or the Interest Accrual Amount to which
they are entitled on any Distribution Date.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the
aggregate amount of P&I Advances and Property Advances for which the Master
Servicer, the Special Servicer or the Trustee, as applicable, has not been
reimbursed and on Servicing Fees, Trustee Fees or Special Servicing Compensation
for which the Master Servicer, the Trustee or the Special Servicer, as
applicable, has not been timely paid or reimbursed for the number of days from
the date on which such Advance was made or such Servicing Fees, Trustee Fees or
Special Servicing Compensation were due to the date of payment or reimbursement
of the related Advance or other such amount, less any amount of interest
previously paid on such Advance or Servicing Fees, Trustee Fees or Special
Servicing Compensation; provided, that if, during any Collection Period in which
an Advance was made, the related Borrower makes payment of an amount in respect
of which such Advance was made with interest at the Default Rate, the Advance
Interest Amount payable to the Master Servicer, the Special Servicer or the
Trustee shall be paid first, from the amount of Default Interest on the related
Mortgage Loan by such Borrower, second, from late payment fees on the related
Mortgage Loan by the related Borrower, and third, upon determining in good faith
that such Advance Interest Amount is not recoverable
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from the amounts described in first or second, from other amounts on deposit in
the Collection Account.
"Advance Rate": A per annum rate equal to the Prime Rate (as most
recently published in the "Money Rates" section of The Wall Street Journal, New
York edition, from time to time). Interest at the Advance Rate will accrue from
(and including) the date on which the related Advance is made or the related
expense incurred to (but excluding) the date on which such amounts are recovered
out of amounts received on the Mortgage Loan as to which such Advances were made
or servicing expenses incurred or the first Servicer Remittance Date after a
determination of non-recoverability, as the case may be, is made, provided that
such interest at the Advance Rate will continue to accrue to the extent funds
are not available in the Collection Accounts for such reimbursement of such
Advance. Notwithstanding the foregoing, with respect to any Mortgage Loan that
has a grace period that expires after the Determination Date, such interest
shall not begin to accrue until the day succeeding the expiration date of such
grace period.
"Advance Recovery Report": A report substantially in the form of,
and containing the information called for in, the downloadable form of the
"Advance Recoverability Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Advance Recovery Report" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Master Servicer.
"Adverse REMIC Event": Any action, that, under the REMIC Provisions,
if taken or not taken, as the case may be, could (i) endanger the status of the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (ii) result in the
imposition of a tax upon the Lower-Tier REMIC or the Upper-Tier REMIC or the
Trust Fund (including but not limited to the tax on "prohibited transactions" as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC set forth in Section 860G(d) of the Code, but not including the tax on
"net income from foreclosure property").
"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. The Trustee may obtain
and rely on an Officer's Certificate of the Master Servicer, the Special
Servicer or the Depositor to determine whether any Person is an Affiliate of
such party.
"Affiliated Person": Any Person (other than a Rating Agency)
involved in the organization or operation of the Depositor or an affiliate, as
defined in Rule 405 of the Act, of such Person.
"Agent Member": Members of, or Depository Participants in, the
Depository.
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"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Allocated Loan Amount": With respect to each Mortgaged Property,
the portion of the principal amount of the related Mortgage Loan allocated to
such Mortgaged Property in the applicable Mortgage, Loan Agreement or the
Mortgage Loan Schedule.
"Annual Compliance Report": A report consisting of an annual
statement of compliance required by Section 3.14 hereof and an annual report of
an Independent accountant required pursuant to Section 3.15 hereof
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06(a).
"Applicable Procedures": As defined in Section 5.02(c)(ii).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be such state or local tax laws whose
applicability shall have been brought to the attention of the Trustee by either
(i) an opinion of counsel delivered to it, or (ii) written notice from the
appropriate taxing authority as to the applicability of such state or local tax
laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area.
"Appraisal Reduction Amount": For any Distribution Date and for any
Mortgage Loan or the Loan Combination, an amount calculated by the Special
Servicer by the first Determination Date following the date the Special Servicer
receives the required Appraisal or performs the required Small Loan Appraisal
Estimate equal to the excess, if any, of (a) the Stated Principal Balance of
such Mortgage Loan or the Loan Combination over (b) the excess of (i) 90% of the
sum of the appraised values (net of any prior mortgage liens but including all
escrows and reserves (other than escrows and reserves for taxes and insurance))
of the related Mortgaged Properties securing such Mortgage Loan or the Loan
Combination as determined by Updated Appraisals obtained by the Special Servicer
(the costs of which shall be paid by the Master Servicer as a Property Advance)
minus any downward adjustments the Special Servicer deems appropriate (without
implying any duty to do so) based upon its review of the Appraisal and any other
information it may deem appropriate (or, in the case of Mortgage Loans or Loan
Combination having a Stated Principal Balance under $[________], 90% of the sum
of the Small Loan Appraisal Estimates of the related Mortgaged Properties (as
described below)) over (ii) the sum of (A) to the extent not previously advanced
by the Master Servicer or the Trustee, all unpaid interest on such Mortgage Loan
or the Loan Combination at a per annum rate equal to the Mortgage Rate (or with
respect to the Loan Combination, the weighted average of the Mortgage Rate for
the related Mortgage Loan(s) and [_____] B Loan), (B) all unreimbursed Property
Advances and the principal portion of all xxxxxxxxxxxx X&X Advances, and all
unpaid interest on Advances at the Advance Rate, in respect of such Mortgage
Loan or the Loan Combination, (C) any other unpaid Additional Trust Fund
Expenses in respect of such Mortgage Loan or the
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Loan Combination (but subject to the provisions of Section 1.02(e)) and (D) all
currently due and unpaid real estate taxes, ground rents and assessments and
insurance premiums (net of any escrows and reserves therefor) and all other
amounts due and unpaid with respect to such Mortgage Loan or the Loan
Combination (which taxes, premiums (net of any escrows and reserves therefor)
and other amounts have not been the subject of an Advance by the Master
Servicer, the Special 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 Updated Appraisal
or Small Loan Appraisal Estimate, as applicable, referred to above within 90
days of the Appraisal Reduction Event, the Appraisal Reduction Amount shall be
deemed to be an amount equal to 25% of the current Stated Principal Balance of
the related Mortgage Loan or the Loan Combination until such time as such
Updated Appraisal or Small Loan Appraisal Estimate referred to above is received
and the Appraisal Reduction Amount is calculated. Notwithstanding the foregoing,
within [__] days after the Appraisal Reduction Event (or in the case of an
Appraisal Reduction Event occurring by reason of clause (ii) of the definition
thereof, [__] days) (A) with respect to Mortgage Loans or the Loan Combination
having a Stated Principal Balance of $[________] or higher, the Special Servicer
shall obtain an Updated Appraisal or (B) with respect to Mortgage Loans or the
Loan Combination having a Stated Principal Balance of less than $[________], the
Special Servicer, at its option, shall (i) provide a Small Loan Appraisal
Estimate within the same time period as an Appraisal would otherwise be required
and such Small Loan Appraisal Estimate shall be used in lieu of an Appraisal to
calculate the Appraisal Reduction Amount for such Mortgage Loans or applicable
Loan Combination; or (ii) with the consent of the Controlling Class
Representative, obtain an Updated Appraisal. On the first Distribution Date
occurring on or after the delivery of such Updated Appraisal, the Special
Servicer shall adjust the Appraisal Reduction Amount to take into account such
Updated Appraisal (regardless of whether the Updated Appraisal is higher or
lower than the Small Loan Appraisal Estimate). Each Appraisal Reduction Amount
shall also be adjusted to take into account any subsequent Small Loan Appraisal
Estimate or Updated Appraisal, as applicable, and any annual letter updates, as
of the date of each such subsequent Small Loan Appraisal Estimate, Updated
Appraisal or letter update, as applicable. With respect to each Mortgage Loan
that is cross-collateralized with any other Mortgage Loan, the value of each
Mortgaged Property that is security for each Mortgage Loan in such
cross-collateralized group, as well as the outstanding amounts under each such
Mortgage Loan shall be taken into account when calculating such Appraisal
Reduction Amount.
At any time that an Appraisal Reduction Amount exists with respect
to any Mortgage Loan, the Controlling Class Representative may, at its own
expense, obtain and deliver to the Master Servicer, the Special Servicer and the
Trustee an Appraisal that satisfies the requirements of an "Updated Appraisal,"
and upon the written request of the Controlling Class Representative, the
Special Servicer shall, subject to the Servicing Standard, recalculate the
Appraisal Reduction Amount in respect of such Mortgage Loan or the Loan
Combination based on such Appraisal (but subject to any downward adjustment by
the Special Servicer as provided in the definition of Appraisal Reduction
Amount) and shall notify the Trustee, the Master Servicer, the Controlling Class
Representative and the Directing Certificateholder of such recalculated
Appraisal Reduction Amount.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction Amount related to a Mortgage Loan or the Loan Combination or
the related REO
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Property will be reduced to zero as of the date the related Mortgage Loan or
Loan Combination is paid in full, liquidated, repurchased or otherwise removed
from the Trust Fund.
The Loan Combination will be treated as a single mortgage loan for
purposes of calculating an Appraisal Reduction Amount with respect to the
mortgage loans included in such Loan Combination.
Any Appraisal Reduction Amount on the Loan Combination shall be
deemed allocated, first, to the related B Loan, if any, and, then, to the
Mortgage Loan based on each such loan's Stated Principal Balance.
"Appraisal Reduction Event": With respect to any Mortgage Loan or
Loan Combination, the first Distribution Date following the earliest of (i) the
date on which such Mortgage Loan or Loan Combination becomes a Modified Mortgage
Loan, (ii) the [__]th day following the occurrence of any uncured delinquency in
Monthly Payments with respect to such Mortgage Loan or Loan Combination, (iii)
receipt of notice that the related Borrower has filed a bankruptcy petition or
the date on which a receiver is appointed and continues in such capacity in
respect of a Mortgaged Property securing such Mortgage Loan or Loan Combination
or [__] days after the Borrower becomes the subject of involuntary bankruptcy
proceedings and such proceedings are not dismissed, (iv) the date on which the
Mortgaged Property securing such Mortgage Loan or Loan Combination becomes an
REO Property, (v) the [__]th day after the third anniversary of any extension of
a Mortgage Loan or the Loan Combination and (vi) with respect to a Balloon Loan,
a payment default shall have occurred with respect to the related Balloon
Payment; provided, however, if (a) the related Borrower is diligently seeking a
refinancing commitment (and delivers a statement to that effect to the Master
Servicer, who shall promptly deliver a copy to the Special Servicer and the
Controlling Class Representative within [__] days after the default), (b) the
related Borrower continues to make its Assumed Scheduled Payment, (c) no other
Servicing Transfer Event has occurred with respect to that Mortgage Loan or Loan
Combination and (d) the Controlling Class Representative consents, an Appraisal
Reduction Event will not occur until [__] days beyond the related maturity date;
and provided, further, if the related Borrower has delivered to the Master
Servicer, who shall promptly deliver a copy to the Special Servicer and the
Controlling Class Representative, on or before the [__]th day after the related
Maturity Date, a refinancing commitment reasonably acceptable to the Special
Servicer and the Controlling Class Representative, and the Borrower continues to
make its Assumed Scheduled Payments (and no other Servicing Transfer Event has
occurred with respect to that Mortgage Loan or Loan Combination), an Appraisal
Reduction Event will not occur until the earlier of (1) [__] days beyond the
related Maturity Date and (2) the termination of the refinancing commitment. The
Special Servicer shall notify the Master Servicer promptly upon the occurrence
of any of the foregoing events with respect to any Specially Serviced Loan.
"Asset Status Report": As defined in Section 3.26(f).
"Assignment of Leases, Rents and Profits": With respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
agreement executed by the Borrower, 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.
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"Assignment of Mortgage": An assignment of Mortgage without
recourse, notice of transfer or equivalent instrument, in recordable form, which
is sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording.
"Assumed Scheduled Payment": 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 (or portion thereof not received),
based on the constant 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 Note or the amortization or payment schedule thereof (as calculated with
interest at the related Mortgage Rate) (if any), assuming such Balloon Payment
had not become due, after giving effect to any prior modification, and (b)
interest at the applicable Net Mortgage Pass-Through Rate.
"Assumption Fees": Any fees collected by the Master Servicer or
Special Servicer in connection with an assumption or modification of a Mortgage
Loan or the Loan Combination or substitution of a Borrower (or an interest
therein) thereunder (in each case, as set forth in the related Loan Documents)
permitted to be executed under the provisions of this Agreement.
"Authenticating Agent": Any authenticating agent appointed by the
Trustee pursuant to Section 3.20.
"Available Funds": For a Distribution Date, the sum of (i) all
previously undistributed Monthly Payments or other receipts on account of
principal and interest (including Unscheduled Payments and any Net REO Proceeds,
if any, transferred from an REO Account pursuant to Section 3.17(b), but
excluding any Excess Liquidation Proceeds) on or in respect of the Mortgage
Loans, received by or on behalf of the Master Servicer in the Collection Period
relating to such Distribution Date, (ii) all P&I Advances made by the Master
Servicer or the Trustee, as applicable, in respect of the Mortgage Loans as of
such Distribution Date, (iii) all other amounts received by the Master Servicer
in such Collection Period (including the portion of Loss of Value Payments
deposited into its Collection Account pursuant to Section 3.06(f)) and required
to be placed in the Collection Account by the Master Servicer pursuant to
Section 3.05, (iv) without duplication, any late Monthly Payments on or in
respect of the Mortgage Loans received after the end of the Collection Period
relating to such Distribution Date but prior to the close of business on the
Business Day prior to the Master Servicer Remittance Date, (v) any Servicer
Prepayment Interest Shortfalls remitted by the Master Servicer to its Collection
Account and (vi) with respect to the Distribution Date in March of each calendar
year, the Withheld Amounts deposited in the Interest Reserve Account by the
Trustee in accordance with Section 3.05(f) and (vii) with respect to the first
Distribution Date, the Interest Deposit Amount, but excluding the following:
(a) amounts permitted to be used to reimburse the Master Servicer,
the Special Servicer or the Trustee, as applicable, for previously
unreimbursed Advances and
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Workout-Delayed Reimbursement Amounts and interest thereon as described in
Section 3.06;
(b) those portions of each payment of interest which represent the
applicable Servicing Fee and Trustee Fee and an amount representing any
applicable Special Servicing Compensation;
(c) all amounts in the nature of late payment fees (to the extent
not applied to the reimbursement of the Advance Interest Amount and/or
Additional Trust Fund Expenses as provided in Section 3.06 hereof), Net
Prepayment Interest Excess, Net Default Interest, extension fees, loan
service transaction fees, demand fees, beneficiary statement charges,
Assumption Fees and similar fees on the Mortgage Loans, which the Master
Servicer or the Special Servicer is entitled to retain as Servicing
Compensation or Special Servicing Compensation, respectively;
(d) all amounts representing scheduled Monthly Payments on Mortgage
Loans due after the related Due Date;
(e) that portion of Net Liquidation Proceeds, Net Insurance Proceeds
and Net Condemnation Proceeds with respect to a Mortgage Loan which
represents any unpaid Servicing Fee, Trustee Fee and Special Servicing
Compensation, to which the Master Servicer, any Sub-Servicer, Trustee
and/or the Special Servicer are entitled;
(f) all amounts representing certain fees and expenses, including
indemnity amounts, reimbursable or payable to the Master Servicer, the
Special Servicer or the Trustee and other amounts permitted to be retained
by the Master Servicer or withdrawn by the Master Servicer from its
Collection Account to the extent expressly set forth in this Agreement
(including, without limitation, as provided in Section 3.06 and including
any indemnities provided for herein), including interest thereon as
expressly provided in this Agreement;
(g) any interest or investment income on funds on deposit in the
Collection Account or any interest on Permitted Investments in which such
funds may be invested;
(h) all amounts received with respect to each Mortgage Loan
previously purchased, repurchased or replaced from the Trust Fund pursuant
to Sections 2.03(d), 3.18 or 9.01 during the related Collection Period and
subsequent to the date as of which such Mortgage Loan was purchased,
repurchased or replaced;
(i) the amount reasonably determined by the Trustee to be necessary
to pay any applicable federal, state or local taxes imposed on the
Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to
the extent described in Section 4.05;
(j) Prepayment Premiums and Yield Maintenance Charges with respect
to the Mortgage Loans; and
(k) with respect to the Distribution Date occurring in (A) January
of each calendar year that is not a leap year and (B) February of each
calendar year, in each case,
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unless such Distribution Date is the final Distribution Date, the Withheld
Amounts deposited in the Interest Reserve Account by the Trustee in
accordance with Section 3.05(f).
"B Loan" or "[_____] B Loan": The [____] B Loan identified in the
preliminary statement.
"B Loan Noteholder" or "[_____] B Loan Noteholder": A holder of the
[_____] B Loan.
"Balloon Loan": Any Mortgage Loan or Loan Combination that requires
a payment of principal on the maturity date in excess of its constant Monthly
Payment.
"Balloon Payment": With respect to each Balloon Loan, the scheduled
payment of principal due on the Maturity Date (less principal included in the
applicable amortization schedule or scheduled Monthly Payment).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and any of the [Class A-1], [Class A-2], [Class A-3],
[Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A], [Class
A-J], [Class B], [Class C], [Class D], [Class E], [Class F], [Class G] and
[Class H] Certificates, a fraction (not greater than 1) (a) whose numerator is
the greater of zero and the amount, if any, by which (i) the Pass-Through Rate
on such Class of Certificates exceeds (ii) the yield rate (as provided by the
Master Servicer) used in calculating the Prepayment Premium or Yield Maintenance
Charge, as applicable, with respect to such Principal Prepayment and (b) whose
denominator is the amount, if any, by which the (i) Mortgage Rate on such
Mortgage Loan exceeds (ii) the yield rate (as provided by the Master Servicer)
used in calculating the Prepayment Premium or Yield Maintenance Charge, as
applicable, with respect to such Principal Prepayment; provided, however, that
if such yield 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 clause
(a)(i) above, then the Base Interest Fraction shall be zero.
"Beneficial Owner": With respect to a Global 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 Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository) with
respect to such Classes. Each of the Trustee and the Master Servicer shall have
the right to require, as a condition to acknowledging the status of any Person
as a Beneficial Owner under this Agreement, that such Person provide evidence at
its expense of its status as a Beneficial Owner hereunder.
"Borrower": With respect to any Mortgage Loan or Loan Combination,
any obligor or obligors on any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Breach": As defined in Section 2.03(d).
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"Business Day": Any day other than (i) a Saturday or a Sunday, (ii)
a legal holiday in New York, New York, [________] or the principal cities in
which the Master Servicer, Special Servicer or the Trustee conducts servicing or
trust operations or (iii) a day on which banking institutions or savings
associations in New York, New York, or [________] or the principal cities in
which the Master Servicer, Special Servicer or the Trustee conduct servicing or
trust operations are authorized or obligated by law or executive order to be
closed.
"Cash Collateral Account": With respect to any Mortgage Loan or Loan
Combination that has a Lock-Box Account, any account or accounts created
pursuant to the related Mortgage, Loan Agreement, Cash Collateral Account
Agreement or other Loan Document into which the Lock-Box Account monies are
swept on a regular basis for the benefit of the Trustee as successor to the
Mortgage Loan Seller. Any Cash Collateral Account shall be beneficially owned
for federal income tax purposes by the Person who is entitled to receive all
reinvestment income or gain thereon in accordance with the terms and provisions
of the related Mortgage Loan and Section 3.07, which Person shall be taxed on
all reinvestment income or gain thereon in accordance with the terms of the
related Mortgage Loan or Loan Combination. The Master Servicer shall be
permitted to make withdrawals therefrom for deposit into its Collection Account
or the Loan Combination Collection Account, as applicable. To the extent not
inconsistent with the terms of the related Loan Documents, each such Cash
Collateral Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage
Loan or Loan Combination, the cash collateral account agreement, if any, between
the related Originator and the related Borrower, pursuant to which the related
Cash Collateral Account, if any, may have been established.
"Certificate": Any [Class A-1], [Class A-2], [Class A-3], [Class
A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A], [Class X-C],
[Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class E], [Class F],
[Class G], [Class H], [Class J], [Class K], [Class L], [Class M], [Class N],
[Class O], [Class P], [Class R] or [Class LR] Certificate issued, authenticated
and delivered hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the [Class X-C], [Class X-P], [Class R] and [Class LR] Certificates)
(a) on or prior to the first Distribution Date, an amount equal to the aggregate
initial Certificate Balance of such Class, as specified in the Preliminary
Statement hereto, (b) as of any date of determination after the first
Distribution Date, the Certificate Balance of such Class of Certificates on the
Distribution Date immediately prior to such date of determination less any
distributions allocable to principal and any allocations of Realized Losses made
thereon on such prior Distribution Date.
"Certificate Custodian": Initially, the Trustee; thereafter, any
other Certificate Custodian acceptable to the Depository and selected by the
Trustee.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
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"Certificateholder": The Person whose name is registered in the
Certificate Register subject to the following:
(a) except as provided in clauses (b) and (d), for the purpose of
giving any consent or taking any action pursuant to this Agreement, any
Certificate beneficially owned by the Depositor, the Master Servicer, the
Special Servicer, the Trustee, a Manager or a Borrower or any Person known
to a Responsible Officer of the Certificate Registrar to be an Affiliate
of any thereof shall be deemed not to be outstanding and the Voting Rights
to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any
such consent or take any such action has been obtained;
(b) for purposes of obtaining the consent of Certificateholders to
an amendment of this Agreement, any Certificates beneficially owned by the
Master Servicer or the Special Servicer or an Affiliate thereof shall be
deemed to be outstanding, unless such amendment relates to compensation of
the Master Servicer or the Special Servicer or benefits the Master
Servicer or the Special Servicer (in its capacity as such) or any
Affiliate thereof (other than solely in its capacity as Certificateholder)
in any material respect, in which case such Certificates shall be deemed
not to be outstanding;
(c) except as provided in clause (d) below, for purposes of
obtaining the consent of Certificateholders to any action proposed to be
taken by the Special Servicer with respect to a Specially Serviced Loan,
any Certificates beneficially owned by the Special Servicer or an
Affiliate thereof shall be deemed not to be outstanding;
(d) for the purpose of exercising its rights as a member of the
Controlling Class or as a Controlling Class Representative (if
applicable), any Certificate beneficially owned by the Master Servicer,
the Special Servicer or an Affiliate thereof will be deemed outstanding;
and
(e) for purposes of providing or distributing any reports,
statements or other information required or permitted to be provided to a
Certificateholder hereunder, a Certificateholder shall include any
Beneficial Owner, or (subject to a confidentiality agreement attached
hereto as Exhibit R) any Person identified by a Beneficial Owner as a
prospective transferee of a Certificate beneficially owned by such
Beneficial Owner, but only if the Trustee or another party hereto
furnishing such report, statement or information has been provided with
the name of the Beneficial Owner of the related Certificate or the Person
identified as a prospective transferee thereof. For purposes of the
foregoing, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent or other such Person may rely, without
limitation, on a Depository Participant listing from the Depository or
statements furnished by a Person that on their face appear to be
statements from a Depository Participant to such Person indicating that
such Person beneficially owns Certificates.
"Certifying Servicer": The Servicer, the Special Servicer [, the
Trustee or Paying Agent, if applicable] or an Additional Servicer, as the case
may be.
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"Class": With respect to the Certificates or Lower-Tier Regular
Interests, all of the Certificates or Lower-Tier Regular Interests bearing the
same alphabetical and numerical Class designation.
"[Class A-1] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-1 hereto.
"[Class A-1] Pass-Through Rate": A per annum rate equal to [__]%.
"[Class A-1A] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-8 hereto.
"[Class A-1A] Pass-Through Rate": A per annum rate equal to the
lesser of [__]% and the Weighted Average Net Mortgage Pass-Through Rate.
"[Class A-1AL-1] Component": One of the [_] Components of the [Class
X-C] Certificates having a Notional Amount equal to the Lower-Tier Balance of
the [Class A-1AL-1] Interest.
"[Class A-1AL-1] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-2] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-1AL-2]
Interest.
"[Class A-1AL-2] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-3] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-1AL-3]
Interest.
"[Class A-1AL-3] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-4] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-1AL-4]
Interest.
"[Class A-1AL-4] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-5] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-1AL-5]
Interest.
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"[Class A-1AL-5] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-6] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-1AL-6]
Interest.
"[Class A-1AL-6] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-7] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-1AL-7]
Interest.
"[Class A-1AL-7] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-8] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-1AL-8]
Interest.
"[Class A-1AL-8] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-9] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-1AL-9]
Interest.
"[Class A-1AL-9] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-10] Component": One of the [_] Components of the
[Class X-C] Certificates and one of the [_] Components of the [Class X-P]
Certificates, having a Notional Amount equal to the Lower-Tier Balance of the
[Class A-1AL-10] Interest.
"[Class A-1AL-10] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-11] Component": One of the [_] Components of the
[Class X-C] Certificates and one of the [_] Components of the [Class X-P]
Certificates, having a Notional Amount equal to the Lower-Tier Balance of the
[Class A-1AL-11] Interest.
"[Class A-1AL-11] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-12] Component": One of the [_] Components of the
[Class X-C] Certificates and one of the [_] Components of the [Class X-P]
Certificates, having a Notional Amount equal to the Lower-Tier Balance of the
[Class A-1AL-12] Interest.
-16-
"[Class A-1AL-12] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-13] Component": One of the [_] Components of the
[Class X-C] Certificates and one of the [_] Components of the [Class X-P]
Certificates, having a Notional Amount equal to the Lower-Tier Balance of the
[Class A-1AL-13] Interest.
"[Class A-1AL-13] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-14] Component": One of the [_] Components of the
[Class X-C] Certificates and one of the [_] Components of the [Class X-P]
Certificates, having a Notional Amount equal to the Lower-Tier Balance of the
[Class A-1AL-14] Interest.
"[Class A-1AL-14] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1AL-15] Component": One of the [_] Components of the
[Class X-C] Certificates and one of the [_] Components of the [Class X-P]
Certificates, having a Notional Amount equal to the Lower-Tier Balance of the
[Class A-1AL-15] Interest.
"[Class A-1AL-15] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"Class A-1L-1 Component": One of the [_] Components of the [Class
X-C] Certificates having a Notional Amount equal to the Lower-Tier Balance of
the [Class A-1L-1] Interest.
"Class A-1L-1 Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class A-1L-2] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-1L-2]
Interest.
"[Class A-1L-2] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1L-3] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-1L-3]
Interest.
"[Class A-1L-3] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-1L-4] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-1L-4]
Interest.
-17-
"[Class A-1L-4] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to [_]%.
"[Class A-2L-1] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-1L-1]
Interest.
"[Class A-2L-1] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-2L-2] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-2L-2]
Interest.
"[Class A-2L-2] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-2L-3] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-2L-3]
Interest.
"[Class A-2L-3] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-2L-4] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-2L-4]
Interest.
"[Class A-2L-4] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-2L-5] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-2L-5]
Interest.
"[Class A-2L-5] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-2L-6] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-2L-6]
Interest.
-18-
"[Class A-2L-6] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"Class A-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-3 hereto.
"Class A-3 Pass-Through Rate": A per annum rate equal to [_]%.
"[Class A-3L] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-3L]
Interest.
"[Class A-3L] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-4 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-4 hereto.
"Class A-4 Pass-Through Rate": A per annum rate equal to the lesser
of the Weighted Average Net Mortgage Pass-Through Rate and [_]%.
"[Class A-4L] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-4L]
Interest.
"[Class A-4L] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class A-AB] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-5 hereto.
"[Class A-AB] Pass-Through Rate": A per annum rate equal to [_]%.
"[Class A-ABL-1] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-ABL-1]
Interest.
"[Class A-ABL-1] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-ABL-2] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-ABL-2]
Interest.
"[Class A-ABL-2] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
-19-
"Class A-5 Certificate": Reference in this Agreement to the [Class
A-5] Certificates means the [Class A-5A] Certificates and the [Class A-5B]
Certificates.
"[Class A-5A] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-6 hereto.
"[Class A-5A] Pass-Through Rate": A per annum rate equal to the
lesser of [_]% and the Weighted Average Net Mortgage Pass-Through Rate.
"[Class A-5AL-1] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-1L-1]
Interest.
"[Class A-5AL-1] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-5AL-2] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-5AL-2]
Interest.
"[Class A-5AL-2] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-5AL-3] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-5AL-3]
Interest.
"[Class A-5AL-3] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-5AL-4] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-5AL-4]
Interest.
"[Class A-5AL-4] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-5AL-5] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-5AL-5]
Interest.
"[Class A-5AL-5] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-5AL-6] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-5AL-6]
Interest.
-20-
"[Class A-5AL-6] Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions payable thereto pursuant to Section
4.01.
"[Class A-5B] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-7 hereto.
"[Class A-5B] Pass-Through Rate": A per annum rate equal to the
lesser of [_]% and the Weighted Average Net Mortgage Pass-Through Rate.
"[Class A-5BL] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-5BL]
Interest.
"[Class A-5BL] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class A-J] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-11 hereto.
"[Class A-J] Pass-Through Rate": A per annum rate equal to the
lesser of [_]% and the Weighted Average Net Mortgage Pass-Through Rate.
"[Class A-JL] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class A-JL]
Interest.
"[Class A-JL] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class B] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-12 hereto.
"[Class B] Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus [_]%.
"[Class X-X] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class X-X]
Interest.
"[Class X-X] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class C] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-13 hereto.
-21-
"[Class C] Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus [_]%.
"[Class C-L] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class C] -L
Interest.
"[Class C-L] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class D] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-14 hereto.
"[Class D] Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
"[Class D-L-1] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class D-L-1]
Interest.
"[Class D-L-1] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class D-L-2] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class D-L-2]
Interest.
"[Class D-L-2] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class E] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-15 hereto.
"[Class E] Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
"[Class E-L-1] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class E-L-1]
Interest.
"[Class E-L-1] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class E-L-2] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class E-L-2]
Interest.
-22-
"[Class E-L-2] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class E-L-3] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class E-L-3]
Interest.
"[Class E-L-3] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class E-L-4] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class E-L-4]
Interest.
"[Class E-L-4] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class F] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-16 hereto.
"[Class F] Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
"[Class F-L-1] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class F-L-1]
Interest.
"[Class F-L-1] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class F-L-2] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class F-L-2]
Interest.
"[Class F-L-2] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class G] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-17 hereto.
"[Class G] Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
"[Class G-L-1] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class G-L-1]
Interest.
-23-
"[Class G-L-1] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class G-L-2] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class G-L-2]
Interest.
"[Class G-L-2] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class G-L-3] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class G-L-3]
Interest.
"[Class G-L-3] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class H] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-18 hereto.
"[Class H] Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
"[Class H-L-1] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class H-L-1]
Interest.
"[Class H-L-1] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class H-L-2] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class H-L-2]
Interest.
"[Class H-L-2] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class Interest Shortfall": On any Distribution Date for any Class
of Certificates, the amount of interest required to be distributed to the
Holders of such Class pursuant to Section 4.01(b) on such Distribution Date
minus the amount of interest actually distributed to such Holders pursuant to
such Section, if any.
"[Class J] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-19 hereto.
"[Class J] Pass-Through Rate": A per annum rate equal to the lesser
of [_]% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
-24-
"[Class X-X-1] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class X-X-1]
Interest.
"[Class X-X-1] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class X-X-2] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class X-X-2]
Interest.
"[Class X-X-2] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class K] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-20 hereto.
"[Class K] Pass-Through Rate": A per annum rate equal to the lesser
of [_]% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"[Class K-L-1] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class K-L-1]
Interest.
"[Class K-L-1] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class K-L-2] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class K-L-2]
Interest.
"[Class K-L-2] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class L] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-21 hereto.
"[Class L] Pass-Through Rate": A per annum rate equal to the lesser
of [_]% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"[Class L-L] Component": One of the [_] Components of the [Class
X-C] Certificates and one of the [_] Components of the [Class X-P] Certificates,
having a Notional Amount equal to the Lower-Tier Balance of the [Class L-L]
Interest.
"[Class L-L] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
-25-
"Class LR Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-27 hereto. The [Class
LR] Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"[Class M] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-22 hereto.
"[Class M] Pass-Through Rate": A per annum rate equal to the lesser
of [_]% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"[Class M-L] Component": One of the [_] Components of the [Class
X-C] Certificates having a Notional Amount equal to the Lower-Tier Balance of
the [Class M-L] Interest.
"[Class M-L] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class N] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-23 hereto.
"[Class N] Pass-Through Rate": A per annum rate equal to the lesser
of [_]% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"[Class N-L] Component": One of the [_] Components of the [Class
X-C] Certificates having a Notional Amount equal to the Lower-Tier Balance of
the [Class N-L] Interest.
"[Class N-L] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"[Class O] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-24 hereto.
"[Class O] Pass-Through Rate": A per annum rate equal to the lesser
of [_]% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"[Class O-L] Component": One of the [_] Components of the [Class
X-C] Certificates having a Notional Amount equal to the Lower-Tier Balance of
the [Class O-L] Interest.
"[Class O-L] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
-26-
"[Class P] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-25 hereto.
"[Class P] Pass-Through Rate": A per annum rate equal to the lesser
of [_]% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"[Class P-L] Component": One of the [_] Components of the [Class
X-C] Certificates having a Notional Amount equal to the Lower-Tier Balance of
the [Class P-L] Interest.
"[Class P-L] Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class R Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-26 hereto. The [Class
R] Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"[Class X] Certificate": Any [Class X-C] or [Class X-P] Certificate.
"[Class X-C] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-9 hereto.
"[Class X-C] Interest Amount": With respect to any Distribution Date
and the related Interest Accrual Period, interest equal to the product of (i)
one-twelfth of a per annum rate equal to the weighted average of the [Class X-C]
Strip Rates for each of the Components, weighted on the basis of the respective
Notional Amounts of such Components as of the beginning of such Distribution
Date and (ii) the [Class X-C] Notional Amount for such Distribution Date.
"[Class X-C] Notional Amount": For any date of determination, the
aggregate of the Lower-Tier Principal Balance of the Lower-Tier Regular
Interests as of the preceding Distribution Date (after giving effect to the
distributions of principal on such Distribution Date), and in the case of the
first Distribution Date, as of the Closing Date.
"[Class X-C] Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the [Class X-C] Strip Rates for the respective
Components of the [Class X-C] Notional Amount for such Distribution Date,
weighted on the basis of the respective Notional Amounts of such Components
outstanding immediately prior to such Distribution Date.
"[Class X-C] Strip Rate": With respect to any Class of Components
(other than Components that are also [Class X-P] Components) for any
Distribution Date, the (i) the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date over (ii) the Pass-Through Rate for the Corresponding
Certificate. With respect to each Class of Components that are also [Class X-P]
Components (A) for any Distribution Date occurring on or before the related
[Class X-P] Component Crossover Date, the excess, if any, of the Weighted
Average Net
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Mortgage Pass-Through Rate for such Distribution Date over (1) with respect to
each of the [Class X-X] Component and the [Class C-L] Component, the sum of the
(I) the [Class X-P] Fixed Strip Rate and (II) the Pass-Through Rate for the
[Class B] Certificates (with respect to the Corresponding Component of the
[Class B] Certificates) and C Certificates (with respect to the Corresponding
Component of the [Class C] Certificates) for such Distribution Date and (2) for
each other [Class X-P] Component, the greater of (x) the Pass-Through Rate for
the Corresponding Certificates and (y) the rate per annum corresponding to such
Distribution Date as set forth in Schedule I attached hereto, and (B) for any
Distribution Date occurring after the related [Class X-P] Component Crossover
Date, the excess, if any, of (i) the Weighted Average Net Mortgage Pass-Through
Rate for such Distribution Date over the (ii) Pass-Through Rate for the
Corresponding Certificates. In no event will any [Class X-C] Strip Rate be less
than zero.
"[Class X-P] Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-10 hereto.
"[Class X-P] Component": Each of the [Class A-1L-2] Component, the
[Class A-1L-3] Component, the [Class A-1L-4] Component, the [Class A-2L-1]
Component, the [Class A-2L-2] Component, the [Class A-2L-3] Component, the
[Class A-2L-4] Component, the [Class A-2L-5] Component, the [Class A-2L-6]
Component, the [Class A-3L] Component, the [Class A-4L] Component, the [Class
A-ABL-1] Component, the [Class A-ABL-2] Component, the [Class A-5AL-1]
Component, the [Class A-5AL-2] Component, the [Class A-5AL-3] Component, the
[Class A-5AL-4] Component, the [Class A-5AL-5] Component, the [Class A-5AL-6]
Component, the [Class A-5BL] Component, the [Class A-1AL-2] Component, the
[Class A-1AL-3] Component, the [Class A-1AL-4] Component, the [Class A-1AL-5]
Component, the [Class A-1AL-6] Component, the [Class A-1AL-7] Component, the
[Class A-1AL-8] Component, the [Class A-1AL-9] Component, the [Class A-1AL-10]
Component, the [Class A-1AL-11] Component, the [Class A-1AL-12] Component, the
[Class A-1AL-13] Component, the [Class A-1AL-14] Component, the [Class A-1AL-15]
Component, the [Class A-JL] Component, the [Class X-X] Component, the [Class
C-L] Component, the [Class D-L-1] Component, the [Class D-L-2] Component, the
[Class E-L-1] Component, the [Class E-L-2] Component, the [Class E-L-3]
Component, the [Class E-L-4] Component, the [Class F-L-1] Component, the [Class
F-L-2] Component, the [Class G-L-1] Component, the [Class G-L-2] Component, the
[Class G-L-3] Component, the [Class H-L-1] Component, the [Class H-L-2]
Component, the [Class X-X-1] Component, the [Class X-X-2] Component, the [Class
K-L-1] Component, the [Class K-L-2] Component and the [Class L-L] Component.
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"[Class X-P] Component Crossover Date": With respect to each Component set
forth in the table below, the Distribution Date occurring in the month and year
set forth in the table below:
Component Cross-Over Date
--------------------------------------------------------------- ---------------
(1) [Class A-1L-2] Component and [Class A-1AL-2] Component.... [________]
(2) [Class A-1L-3] Component, [Class A-2L-1] Component and
[Class A-1AL-3] Component................................... [________]
(3) [Class A-1L-4] Component, [Class A-2L-2] Component and
[Class A-1AL-4] Component................................... [________]
(4) [Class A-1AL-5] Component, [Class A-2L-3] Component,
[Class K-L-1] Component and [Class L-L] Component........... [________]
(5) [Class A-1AL-6] Component, [Class A-2L-4] Component,
[Class X-X-1] Component and [Class K-L-2] Component......... [________]
(6) [Class A-1AL-7] Component, [Class A-2L-5] Component,
[Class H-L-1] Component and [Class X-X-2] Component......... [________]
(7) [Class A-1AL-8] Component, [Class A-2L-6] Component,
[Class A-3L] Component, [Class A-4L] Component, [Class G-L-1]
Component and [Class H-L-2] Component....................... [________]
(8) [Class A-1AL-9] Component, [Class A-ABL-1] Component and
[Class G-L-2] Component..................................... [________]
(9) [Class A-1AL-10] Component, [Class A-5AL-1] Component,
[Class A-ABL-1] Component, [Class F-L-1] Component and
[Class G-L-3] Component..................................... [________]
(10) [Class A-1AL-11] Component, [Class A-5AL-2] Component,
[Class E-L-1] Component and [Class F-L-2] Component......... [________]
(11) [Class A-1AL-12] Component, [Class A-5AL-3] Component and
[Class E-L-2] Component..................................... [________]
(12) [Class A-1AL-13] Component, [Class A-5AL-4] Component and
[Class E-L-3] Component..................................... [________]
(13) [Class A-1AL-14] Component, [Class A-5AL-5] Component,
[Class D-L-1] Component and [Class E-L-4] Component......... [________]
(14) [Class A-1AL-15] Component, [Class A-5AL-6] Component,
[Class A-5BL] Component, [Class A-JL] Component, [Class X-X]
Component, [Class C-L] Component and [Class D-L-2] Component [________]
"[Class X-P] Fixed Strip Rate": A per annum rate equal to (i) [__]%,
with respect to the Corresponding Components relating to the [Class B]
Certificates and (ii) [__]%, with respect to the Corresponding Components
relating to the [Class C] Certificates.
"[Class X-P] Notional Amount": With respect to any Distribution
Date, the aggregate of the Notional Amounts of the [Class X-P] Components as of
the close of business on the preceding Distribution Date, excluding those [Class
X-P] Components for which the [Class X-P] Component Crossover Date has
previously passed.
"[Class X-P] Pass-Through Rate": With respect to any Distribution
Date subsequent to the initial Distribution Date and on or before the
Distribution Date in [________],
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the weighted average of the [Class X-P] Strip Rates for the respective
Components of the [Class X-P] Notional Amount, weighted on the basis of the
respective balances of such Components outstanding immediately prior to such
Distribution Date.
"[Class X-P] Strip Rate": With respect to each of the [Class X-P]
Components (A) for any Distribution Date occurring on or before the related
[Class X-P] Component Crossover Date, (1) with respect to each of the [Class
X-X] Component and the [Class C-L] Component, the applicable [Class X-P] Fixed
Rate and (2) with respect to each other [Class X-P] Component, the excess, if
any, of (x) the lesser of (i) the rate per annum corresponding to such
Distribution Date as set forth in Schedule I attached hereto and (ii) the
Weighted Average Net Mortgage Pass-Through Rate for such Distribution Date over
(y) the Pass-Through Rate for the Corresponding Certificates, and (B) for any
Distribution Date occurring after the related [Class X-P] Component Crossover
Date, equal to zero. In no event will any [Class X-P] Strip Rate be less than
zero.
"Clearstream": Clearstream Banking Luxembourg, a division of
Clearstream International, societe anonyme.
"Closing Date": [________].
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, certificateholders, issuers,
placement agents and underwriters generally involved in the commercial mortgage
loan securitization industry, which is the principal such association or
organization in the commercial mortgage loan securitization industry and whose
principal purpose is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Controlling Class Representative.
"CMSA Bond Level File": A data file substantially in the form of,
and containing the information called for in, the downloadable form of the "Bond
Level File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be promulgated as recommended 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 "Bond Level File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File": The data file substantially in the
form of, and containing the information called for in, the downloadable form of
the "CMSA Collateral Summary File" available as of the Closing Date on the CMSA
Website, or such other form for
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the presentation of such information and containing such additional information
as may from time to time be promulgated as recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Collateral Summary File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA
Financial File" available as of the Closing Date on the CMSA Website, or such
other final form for the presentation of such information and containing such
additional information as may from time to time be promulgated as recommended by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "CMSA Financial File" available as of the Closing Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable. The initial data for this report shall be provided by
the Mortgage Loan Seller.
"CMSA Loan Periodic Update File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "CMSA Loan Periodic Update File" available as of the Closing Date on
the CMSA Website, or such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as recommended 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, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable, and the Trustee and, provided, that each CMSA Loan Periodic Update
File shall be accompanied by a Advance Recovery Report, if such report is
required for a particular month, and all references herein to "CMSA Loan
Periodic Update File" shall be construed accordingly.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA
Loan Setup File" available as of the Closing Date on the CMSA Website, or such
other final form for the presentation of such information and containing such
additional information as may from time to time be promulgated as recommended by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "CMSA Loan Setup File" available as of the Closing Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable, and the Trustee.
"CMSA Property File": The monthly report substantially in the form
of, and containing the information called for, in the downloadable form of the
"CMSA Property File" available as of the Closing Date on the CMSA Website, or
such other final form for the presentation of such information and containing
such additional information as may from time to time be promulgated as
recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Property File" available as
of the Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
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"CMSA Reporting Package": Collectively,
(a) the CMSA Reports;
(b) the following twelve supplemental reports: (i) Delinquent Loan
Status Report, (ii) Historical Loan Modification and Corrected Mortgage
Loan Report, (iii) Historical Liquidation Report, (iv) REO Status Report,
(v) Operating Statement Analysis Report, (vi) Comparative Financial Status
Report, (vii) Watch List, (viii) NOI Adjustment Worksheet, (ix) Loan Level
Reserve/LOC Report, (x) Reconciliation of Funds Report, (xi) Advance
Recovery Report and (xii) Total Loan Report; and
(c) such other reports as the CMSA may designate in the future and
any additional information as the Master Servicer, Special Servicer and
the Trustee may from time to time agree.
In addition, the CMSA Reporting Package shall include the Advance
Recovery Report, if such report is required for a particular month.
"CMSA Reports": Reports substantially in the forms of the CMSA
standard reporting package inclusive of the CMSA Loan Setup File, the CMSA Loan
Periodic Update File, the CMSA Property File, the CMSA Financial File, the CMSA
Special Servicer Defaulted Loan File, the CMSA Bond Level File and the CMSA
Collateral Summary File.
"CMSA Special Servicer Defaulted Loan File:" The report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Special Servicer Loan File" available as of the
Closing Date on the CMSA Website, or such other final form for the presentation
of such information and containing such additional information as may from time
to time be promulgated as recommended by the CMSA for commercial mortgage
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the form of the "CMSA Special
Servicer Loan File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Special Servicer.
"CMSA Supplemental Servicer Reports": The Delinquent Loan Status
Report, the Historical Loan Modification and Corrected Mortgage Loan Report, the
Historical Liquidation Report, the REO Status Report, the Watch List, the NOI
Adjustment Worksheet, the Comparative Financial Status Report, the Operating
Statement Analysis Report, the Loan Level Reserve/LOC Report, the Reconciliation
of Funds Report, the Advance Recovery Report and the Total Loan Report.
"CMSA Website": The CMSA's Website located at "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, any successor statute thereto, and any temporary or final regulations of
the United States Department of the Treasury promulgated pursuant thereto.
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"Co-Lender Agreement": with respect to the [________] Loan
Combination, the agreement, dated as of [________] by and between the Holder of
the [___] Mortgage Loan and [________], as the [__] B Loan Holder.
"Collection Account": The trust account or accounts created and
maintained by the Master Servicer pursuant to Section 3.05(a), which shall be
entitled "Commercial Mortgage Corporation, for the benefit of [________], as
Trustee, in trust for Holders of Deutsche Mortgage & Asset Receiving
Corporation, COMM 200[_]-[_] Commercial Mortgage Pass-Through Certificates,
Collection Account" and which must be an Eligible Account.
"Collection Period": With respect to any Distribution Date and each
Mortgage Loan, the period that begins immediately following the Determination
Date in the calendar month preceding the month in which such Distribution Date
occurs (or, in the case of the Distribution Date occurring in [________], on the
day after the Cut-off Date) and ending at the close of business on the
Determination Date in the calendar month in which such Distribution Date occurs,
provided, that with respect to the payment by a Borrower of a Balloon Payment on
its related due date or during its related grace period, the Collection Period
shall extend up to and include the Business Day prior to the Servicer Remittance
Date preceding the related Distribution Date.
"Commission": The Securities and Exchange Commission.
"Comparative Financial Status Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Comparative Financial Status Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
promulgated as recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Comparative
Financial Status Report" available as of the Closing Date on the CMSA Website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"Component": Each of the [Class A-1L-1] Component, the [Class
A-1L-2] Component, the [Class A-1L-3] Component, the [Class A-1L-4] Component,
the [Class A-2L-1] Component, the [Class A-2L-2] Component, the [Class A-2L-3]
Component, the [Class A-2L-4] Component, the [Class A-2L-5] Component, the
[Class A-2L-6] Component, the [Class A-3L] Component, the [Class A-4L]
Component, the [Class A-ABL-1] Component, the [Class A-ABL-2] Component, the
[Class A-5AL-1] Component, the [Class A-5AL-2] Component, the [Class A-5AL-3]
Component, the [Class A-5AL-4] Component, the [Class A-5AL-5] Component, the
[Class A-5AL-6] Component, the [Class A-5BL] Component, the [Class A-1AL-1]
Component, the [Class A-1AL-2] Component, the [Class A-1AL-3] Component, the
[Class A-1AL-4] Component, the [Class A-1AL-5] Component, the [Class A-1AL-6]
Component, the [Class A-1AL-7] Component, the [Class A-1AL-8] Component, the
[Class A-1AL-9] Component, the [Class A-1AL-10] Component, the [Class A-1AL-11]
Component, the [Class A-1AL-12] Component, the [Class A-1AL-13] Component, the
[Class A-1AL-14] Component, the [Class A-1AL-15] Component, the [Class A-JL]
Component, the [Class X-X] Component, the [Class C-L] Component, the [Class
D-L-1] Component, the [Class D-L-2] Component, the [Class E-L-1] Component, the
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[Class E-L-2] Component, the [Class E-L-3] Component, the [Class E-L-4]
Component, the [Class F-L-1] Component, the [Class F-L-2] Component, the [Class
G-L-1] Component, the [Class G-L-2] Component, the [Class G-L-3] Component, the
[Class H-L-1] Component, the [Class H-L-2] Component, the [Class X-X-1]
Component, the [Class X-X-2] Component, the [Class K-L-1] Component, the [Class
K-L-2] Component, the [Class L-L] Component, the [Class M-L] Component, the
[Class N-L] Component, the [Class O-L] Component and the [Class P-L] Component.
"Condemnation Proceeds": Any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers (other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Borrower in
accordance with the terms of the applicable Mortgage Loan and, if applicable,
the terms of the Loan Combination) or, if applicable, with respect to the
Mortgaged Property securing the Loan Combination, any portion of such amounts
payable to the holders of the Loan Combination.
"Controlling Class": As of any date of determination, the Class of
Principal Balance Certificates with the latest alphabetical Class designation
that has a then-aggregate Certificate Balance at least equal to 25% of the
initial aggregate Certificate Balance of such Class of Principal Balance
Certificates as of the Closing Date. As of the Closing Date, the Controlling
Class will be the [Class P] Certificates. For purposes of determining the
Controlling Class, the [Class A-1], [Class A-2], [Class A-3], [Class A-4],
[Class A-AB], [Class A-5A], [Class A-5B] and [Class A-1A] Certificates
collectively will be treated as one Class.
"Controlling Class Certificateholder": Each holder (or Beneficial
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such holder (or Beneficial Owner).
"Controlling Class Representative": The Controlling Class
Certificateholder or its designee selected by more than 50% of the Controlling
Class Certificateholders, by Certificate Balance, as certified by the Trustee
from time to time; provided, however, that (i) absent such selection, or (ii)
until a Controlling Class Representative is so selected or (iii) upon receipt of
a notice from a majority of the Controlling Class Certificateholders, by
Certificate Balance, that a Controlling Class Representative is no longer
designated, the Controlling Class Certificateholder that owns the largest
aggregate Certificate Balance of the Controlling Class will be the Controlling
Class Representative; provided, further, that in order for the Trustee to
certify the status of the Controlling Class Representative, the Controlling
Class Representative must provide notice and certification of their holdings
through the Depository to the Trustee as to its status as Controlling Class
Representative upon which the Trustee shall use its best efforts to verify such
status. [________] shall be the initial Controlling Class Representative,
without necessity of further notice or selection.
"Corporate Trust Office": The offices of the Trustee located
[________], Attention: Corporate Trust Services, COMM 200[_]-[_], or the
principal trust office of any successor Trustee qualified and appointed pursuant
to Section 8.08.
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"Corrected Mortgage Loan": As defined under the definition of
Specially Serviced Loan.
"Corresponding Certificate": As defined in the Preliminary Statement
with respect to any Corresponding Lower-Tier Regular Interest.
"Corresponding [Class X] Component": As defined in the Preliminary
Statement with respect to any Corresponding Class of Certificates or
Corresponding Lower-Tier Regular Interest.
"Corresponding Lower-Tier Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Corresponding Certificates or
Corresponding [Class X] Component.
"Cross-Collateralized Mortgage Loans": Any two or more Mortgage
Loans listed on the Mortgage Loan Schedule that are cross-collateralized with
each other.
"Cross-over Date": Means the Distribution Date on which the
Certificate Balance of each Class of Certificates other than the [Class A-1],
[Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B]
and [Class A-1A] Certificates have been reduced to zero.
"Custodial Agreement": The Custodial Agreement, if any, from time to
time in effect between the Custodian named therein and the Trustee, in the form
agreed to by the Trustee and the Custodian, as the same may be amended or
modified from time to time in accordance with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 3.21 and,
unless the Trustee is Custodian, named pursuant to any Custodial Agreement. If a
Custodian is not so appointed, then the Custodian shall be the Trustee. The
Custodian may (but need not) be the Trustee or the Master Servicer or any
Affiliate of the Trustee or the Master Servicer, but may not be the Depositor,
any Mortgage Loan Seller or any Affiliate thereof.
"Cut-off Date": With respect to each Mortgage Loan or Loan
Combination, the later of [________] or the origination date of such Mortgage
Loan or Loan Combination.
"DBS": Deutsche Bank Securities Inc.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan or
Loan Combination as of any date of determination and for any period, the ratio
calculated by dividing the net operating income or net cash flow, as applicable,
of the related Mortgaged Property or Mortgaged Properties, as the case may be,
for the most recently ended 12-month trailing or one-year period for which data
is available from the related Borrower (or year-to-date until such time that
data for the trailing 12-month period is available), before payment of any
scheduled payments of principal and interest on such Mortgage Loan or Loan
Combination but after funding of required reserves and "normalized" by the
Master Servicer pursuant to Section 3.13, by the annual debt service required by
such Mortgage Loan or Loan Combination. Annual debt service shall be calculated
by multiplying the Monthly Payment in effect on such date of
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determination for such Mortgage Loan or Loan Combination by 12 (or such fewer
number of months for which related information is available).
"Default Interest": With respect to any Mortgage Loan or the [_____]
B Loan, interest accrued on such Mortgage Loan or the [_____] B Loan at the
excess of (i) the Default Rate over (ii) the related Mortgage Rate.
"Default Rate": With respect to each Mortgage Loan or the [_____] B
Loan, the per annum rate at which interest accrues on such Mortgage Loan or the
[_____] B Loan following any event of default on such Mortgage Loan or the
[_____] B Loan, including a default in the payment of a Monthly Payment or a
Balloon Payment.
"Defaulted Mortgage Loan": A Mortgage Loan or Loan Combination which
is delinquent at least 60 days in respect of its Monthly Payments or more than
30 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 Loan Documents and without regard to any acceleration
of payments under the related Mortgage Loan or Loan Combination.
"Defeasance Account": As defined in Section 3.30(j).
"Delinquency": Any failure of a Borrower to make a scheduled Monthly
Payment or Balloon Payment on a Due Date.
"Delinquent Loan Status Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Delinquent Loan Status Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be promulgated
as recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Delinquent Loan Status Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer or the Special Servicer, as applicable.
"Denomination": As defined in Section 5.01(a).
"Depositor": Deutsche Mortgage & Asset Receiving Corporation, a
Delaware corporation, and its successors and assigns.
"Depository": The Depository Trust Company or a successor appointed
by the Certificate Registrar (which appointment shall be at the direction of the
Depositor if the Depositor is legally able to do so).
"Depository Participant": A 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
earlier of (a) the 6th day of the month in which the related Distribution Date
occurs or, if such 6th day is not
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a Business Day, the immediately preceding Business Day and (b) the 4th Business
Day prior to the related Distribution Date.
"Directing Certificateholder": (i) with respect to any Mortgage
Loan, other than any Loan Combination, the Controlling Class Representative; and
(ii) with respect to the [________] Mortgage Loan, (a) prior to a [________]
Control Appraisal Event, the holder of the [________] B Loan and (b) so long as
a [________] Control Appraisal Event exists, the Controlling Class
Representative.
"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 in the ordinary course of a trade or business,
or any 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
through an Independent Contractor; provided, however, that the Special Servicer,
on behalf of the Trust Fund, shall not be considered to Directly Operate an REO
Property solely because the Special Servicer, on behalf of the Trust Fund,
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 l.856-4(b)(5)(ii).
"Disqualified Non-U.S. Person": With respect to a [Class R] or
[Class LR] Certificate, (A) any Non-U.S. Person or agent thereof other than (i)
a Non-U.S. Person that holds the [Class R] or [Class LR] Certificate in
connection with the conduct of a trade or business within the United States and
has furnished the transferor and the Certificate Registrar with an effective IRS
Form W-8ECI (or applicable successor Form promulgated by the IRS for the purpose
of providing and certifying the information provided on Form W-8ECI as of the
Closing Date) or (ii) a Non-U.S. Person that has delivered to both the
transferor and the Certificate Registrar an opinion of a nationally recognized
tax counsel to the effect that the transfer of the [Class R] or [Class LR]
Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the [Class R] or
[Class LR] Certificate will not be disregarded for federal income tax purposes
or (B) a U.S. Person with respect to whom income on the [Class R] or [Class LR]
Certificate is attributable to a fixed base or foreign permanent establishment,
within the meaning of an applicable income tax treaty, of such Person or any
other U.S. Person.
"Disqualified Organization": Any of (a) the United States, a State
or any political subdivision thereof, any possession of the United States, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax and a majority of its board of directors is not selected by any such
governmental unit), (b) a foreign government, International Organization (as
defined below) or agency or instrumentality of either of the foregoing, (c) an
organization that is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to the
[Class R] or [Class LR] Certificates (except certain farmers' cooperatives
described in Code Section 521), (d) rural electric and telephone cooperatives
described in Code Section 1381(a)(2),
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or (e) any other Person so designated by the Certificate Registrar based upon an
Opinion of Counsel to the effect that any Transfer to such Person may cause the
Upper-Tier REMIC or the Lower-Tier REMIC to be subject to tax or to fail to
qualify as a REMIC at any time that the Certificates are outstanding. For the
purposes of this definition, the terms "United States," "State" and
"International Organization" shall have the meanings set forth in Code Section
7701 or successor provisions.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account and the Grantor Trust Distribution
Account, all of which may be subaccounts of a single Eligible Account.
"Distribution Date": The 10th day of each month, or if such 10th day
is not a Business Day, the Business Day immediately following such 10th day,
commencing in [________].
"Distribution Date Statement": As defined in Section 4.02(a).
"Due Date": With respect to (i) any Mortgage Loan or Loan
Combination on or prior to its Maturity Date, the day of the month set forth in
the related Note on which each Monthly Payment thereon is scheduled to be first
due and (ii) any Mortgage Loan or Loan Combination after the Maturity Date
therefore or any REO Loan, the day of the month set forth in the related Note on
which each Monthly Payment on such Mortgage Loan or Loan Combination had been
scheduled to be first due.
"XXXXX": The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
"Early Termination Notice Date": Any date as of which the aggregate
Stated Principal Balance of the Mortgage Loans is less than [___]% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
"Eligible Account": Any of (i) (A) an account or accounts maintained
with a depository institution or trust company the short term unsecured debt
obligations or commercial paper of which are rated at least "A-1" by [S&P] and
"P-1" by [Xxxxx'x], in the case of accounts in which funds are held for 30 days
or less or, in the case of accounts in which funds are held for more than 30
days, the long term unsecured debt obligations of which are rated at least "AA"
by [S&P] and "Aa3" by [Xxxxx'x], or (B) as to which the Trustee has received
written confirmation from each of the Rating Agencies that holding funds in such
account would not cause any Rating Agency to qualify, withdraw or downgrade any
of its then-current ratings on the Certificates, (ii) a segregated trust account
or accounts maintained with a federal or state chartered depository institution
or trust company acting in its fiduciary capacity which, in the case of a state
chartered depository institution or trust company is subject to regulations
substantially similar to 12 C.F.R. ss. 9.10(b), and subject to supervision or
examination by federal and state authority, (iii) any other account that, as
evidenced by a written confirmation from each Rating Agency would not, in and of
itself, cause a downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates, which may be an account maintained with
the Trustee or the Master Servicer, or (iv) an account or accounts maintained
with [____] Bank (A) so long as [____] Bank's long-term unsecured debt rating
shall be at xxxxx "X0" from
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[Xxxxx'x] and "A" from [S&P] (if the deposits are to be held in the account for
more than 30 days) or (B) [____] short-term deposit or short-term unsecured debt
rating shall be at least "P-1" from [Xxxxx'x] and "A-1" from [S&P] (if the
deposits are to be held in the account for 30 days or less). Eligible Accounts
may bear interest.
"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 or (ii) an Institutional Accredited
Investor.
"Environmental Report": The environmental audit report or reports
with respect to each Mortgaged Property delivered to the Mortgage Loan Seller in
connection with the related Mortgage Loan.
"ERISA": The Employee Retirement Income Security Act of 1974, as it
may be amended from time to time.
"Escrow Account": As defined in Section 3.04(b). Any Escrow Account
may be a sub-account of the related Cash Collateral Account.
"Escrow Payment": Any payment made by any Borrower to the Master
Servicer pursuant to the related Mortgage, Cash Collateral Account Agreement,
Lock-Box Agreement, Loan Agreement or other Loan Document for the account of
such Borrower for application toward the payment of taxes, insurance premiums,
assessments, environmental remediation and similar items in respect of the
related Mortgaged Property or related to the satisfaction of closing conditions
for the related Mortgage Loan or Loan Combination.
"Euroclear": The Euroclear System and its successors.
"Event of Default": The Master Servicer Event of Default or Special
Servicer Event of Default, as applicable.
"Excess Liquidation Proceeds": With respect to any Mortgage Loan or
the [_____] B Loan, the excess of (i) Net Liquidation Proceeds of such Mortgage
Loan or the [_____] B Loan or related REO Property, over (ii) the amount that
would have been received if a principal payment and all other amounts due in
full had been made with respect to such Mortgage Loan or the [_____] B Loan on
the Due Date immediately following the date on which such proceeds were
received.
"Excess Liquidation Proceeds Account": The segregated trust account
or sub-account created and maintained by the Trustee pursuant to Section 3.05(j)
in trust for the Certificateholders and, in the case of the [_____] B Loan, the
[_____] B Loan Noteholder, which shall be entitled "[________], as Trustee, in
trust for Holders of Deutsche Mortgage & Asset Receiving Corporation, COMM
200[_]-[_] Commercial Mortgage Pass-Through Certificates and, if applicable,
[_____] B Loan Noteholder, Excess Liquidation Proceeds Account." The Excess
Liquidation Proceeds Account must be an Eligible Account or a sub-account of an
Eligible Account and will be an asset of the Lower-Tier REMIC.
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"Excess Prepayment Interest Shortfall": With respect to the Mortgage
Loans in the Mortgage Pool, the aggregate Prepayment Interest Shortfalls with
respect to the Mortgage Pool in excess of the Master Servicer Prepayment
Interest Shortfall with respect to the Mortgage Pool.
"Excess Servicing Strip": The excess of the Servicing Fee Rate over
[__]% ([__] basis points) per annum, subject to reduction by the Trustee
pursuant to Section 3.12(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Report": A monthly Distribution Date Statement,
Comparative Financial Status Report, Delinquent Loan Status Report, Historical
Liquidation Report, Historical Loan Modification and corrected Mortgage Loan
Report, REO Status Report, Operating Statement Analysis Report, NOI Adjustment
Worksheet, Watch List, or Annual Compliance Report to be filed with the
Commission, under cover of the related form required by the Exchange Act.
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Recovery Determination": With respect to any Specially
Serviced Loan, REO Loan or any Mortgage Loan subject to repurchase by the
Mortgage Loan Seller pursuant to Section 2.03(d) or, in the case of the Loan
Combination, subject to a purchase pursuant to the applicable Co-Lender
Agreement or any Mortgage Loan or Loan Combination subject to purchase pursuant
to any related mezzanine intercreditor agreement, the recovery of all Insurance
Proceeds, Liquidation Proceeds, the related Repurchase Price and other payments
or recoveries (including proceeds of the final sale of any REO Property) which
the Master Servicer (or in the case of a Specially Serviced Loan or REO Loan,
the Special Servicer), in its reasonable judgment as evidenced by a certificate
of a Servicing Officer delivered to the Trustee and the Custodian (and the
Master Servicer, if the certificate is from the Special Servicer), expects to be
finally recoverable. The Master Servicer shall maintain records, prepared by a
Servicing Officer, of each Final Recovery Determination until the earlier of (i)
its termination as the Master Servicer hereunder and the transfer of such
records to a successor servicer and (ii) five years following the termination of
the Trust Fund.
"Financial Market Publisher": Bloomberg Financial Service.
"FNMA": The Federal National Mortgage Association, or any successor
thereto.
"Form 8-K": A Current Report on Form 8-K under the Exchange Act, or
such successor form as the Commission may specify from time to time.
"General Servicing Standard": The Master Servicer and Special
Servicer, as applicable, are required to service and administer the Mortgage
Loans and Loan Combination that such party is servicing, in the best interests
of and for the benefit of the Certificateholders and, with respect to the Loan
Combination, for the benefit of the holder of the related [_____] B
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Loan (as a collective whole, but giving due consideration to the subordinate
nature of the related B Loan as determined by the Master Servicer in the
exercise of its reasonable judgment) in accordance with applicable law, the
terms of this Agreement, the terms of the related intercreditor agreement, as
applicable, and the terms of the Mortgage Loans or Loan Combination, as
applicable, and, to the extent consistent with the foregoing, in accordance with
the higher of the following standards of care:
(i) the same manner in which, and with the same care, skill,
prudence and diligence with which the Master Servicer 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 commercial and multifamily
mortgage loan servicers servicing mortgage loans for other third
party portfolios or securitization trusts with a view to the
maximization of timely recovery of principal and interest on a net
present value basis on the Mortgage Loans, and the best interests of
the Trust and the Certificateholders and, with respect to the Loan
Combination, the holder of the related [_____] B Loan (as a
collective whole, but giving due consideration to the subordinate
nature of the related B Loan as determined by the Master Servicer,
in its reasonable judgment); and
(ii) the same care, skill, prudence and diligence with which
the Master Servicer services and administers commercial and
multifamily mortgage loans owned, if any, by the Master Servicer
with a view to the maximization of timely recovery of principal and
interest on a net present value basis on the Mortgage Loans, and the
best interests of the Trust and the Certificateholders and, with
respect to the Loan Combination, the holder of the related [_____] B
Loan (as a collective whole, but giving due consideration to the
subordinate nature of the related B Loan, as determined by the
Master Servicer in its reasonable judgment),
but without regard to (a) any relationship that the Master Servicer or any
affiliate of it, may have with the related borrower, any Mortgage Loan Seller,
any other party to this Agreement or any affiliate of the foregoing; (b) the
ownership of any Certificate, the [_____] B Loan by the Master Servicer or any
affiliate of the it; (c) the Master Servicer's obligation to make Advances; (d)
the Master Servicer's right to receive compensation for its services hereunder
or with respect to any particular transaction; (e) the ownership, servicing or
management for others of any other mortgage loans or mortgaged properties by the
Master Servicer or any affiliate of the Master Servicer, as applicable; and (f)
any debt that the Master Servicer or any affiliate of the Master Servicer, as
applicable, has extended to any borrower or an affiliate of any borrower
(including, without limitation, any mezzanine financing).
"Global Certificates": The [Class A-1], [Class A-2], [Class A-3],
[Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A], [Class
X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class E],
[Class F], [Class G], [Class H], [Class J], [Class K], [Class L], [Class M],
[Class N], [Class O] and [Class P] Certificates.
"Grantor Trust": As defined in the preliminary statement herein.
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"Grantor Trust Distribution Account": The segregated trust account
or sub-account created and maintained by the Trustee pursuant to Section
3.05(c), which shall be entitled "[________], as Trustee in trust for Holders of
Deutsche Mortgage & Asset Receiving Corporation, COMM 200[_]-[_] Commercial
Mortgage Pass Through Certificates, Grantor Trust Distribution Account," and
which must be an Eligible Account or a sub-account of an Eligible Account. The
Grantor Trust Distribution Account shall not be an asset of the Lower Tier REMIC
or the Upper Tier REMIC.
"Group 1 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), radon gas,
petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Historical Liquidation Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Historical Liquidation Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be promulgated
as recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Historical Liquidation Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer or the Special Servicer, as applicable.
"Historical Loan Modification and Corrected Mortgage Loan Report": A
report substantially in the form of, and containing the information called for
in, the downloadable form of the "Historical Loan Modification and Corrected
Mortgage Loan Report" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be promulgated as recommended by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification and Corrected Mortgage Loan
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"Holder": With respect to any Certificate, a Certificateholder; with
respect to any Lower-Tier Regular Interest, the Trustee.
"Indemnification Agreements": The [________] Indemnification
Agreement.
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"Indemnified Party": As defined in Section 8.05(d), or Section
8.05(h), as the context requires.
"Indemnifying Party": As defined in Section 8.05(d), or Section
8.05(h), as the context requires.
"Independent": When used with respect to any specified Person, any
such Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Directing Holder, any Borrower or Manager or
any Affiliate thereof, and (ii) is not connected with any such Person thereof as
an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, [__]% or
more of any Class or [__]% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Master Servicer nor the Special Servicer shall
be considered to be an Independent Contractor under the definition in this
clause (i) unless an Opinion of Counsel (at the expense of the party seeking to
be deemed an Independent Contractor) addressed to the Master Servicer or the
Special Servicer, as applicable, and the Trustee has been delivered to the
Trustee to that effect) or (ii) any other Person (including the Master Servicer
and the Special Servicer) if the Master Servicer or the Special Servicer, as
applicable, on behalf of itself and the Trustee has received an Opinion of
Counsel (at the expense of the party seeking to be deemed an Independent
Contractor) 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 (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code) or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property (provided that such income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully
registered physical form without interest coupons.
"Initial Purchaser": DBS and its respective successor in interest.
"Initial Resolution Period": As defined in Section 2.03(d).
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(l), (2), (3) or (7) of Regulation D promulgated
under the Act, or an entity in which all the equity owners meet such
requirements.
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"Insurance Proceeds": Proceeds of any fire and hazard insurance
policy, title policy or other insurance policy relating to a Mortgage Loan or
Loan Combination (including any amounts paid by the Master Servicer pursuant to
Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date and
any Class of Certificates (other than the [Class R] and [Class LR]
Certificates), an amount equal to interest for the related Interest Accrual
Period at the Pass-Through Rate for such Class on the related Certificate
Balance or Notional Balance, as applicable, outstanding immediately prior to
such Distribution Date minus the amount of any Excess Prepayment Interest
Shortfall allocated to such Class with respect to such Distribution Date.
Calculations of interest due in respect of the Certificates shall be made on the
basis of a 360-day year consisting of twelve 30-day months.
"Interest Accrual Period": With respect to any Distribution Date,
the calendar month immediately preceding the month in which such Distribution
Date occurs.
"Interest Reserve Account": The segregated trust account or
sub-account created and maintained by the Trustee pursuant to Section 3.05(f),
which shall be entitled "[________], as Trustee, in trust for Holders of
Deutsche Mortgage & Asset Receiving Corporation, COMM 200[_]-[_] Mortgage
Pass-Through Certificates, Interest Reserve Account" and which must be an
Eligible Account or a sub-account of an Eligible Account. The Interest Reserve
Account shall be an asset of the Lower-Tier REMIC.
"Interested Person": As of any date of determination, the Depositor,
the Master Servicer, Special Servicer, the Trustee, any Holder of a Certificate,
any Borrower, any Manager, any Independent Contractor engaged by the Special
Servicer pursuant to Section 3.17, or any Person known to a Responsible Officer
of the Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section
5.02(c)(i)(A).
"IRS": The Internal Revenue Service.
"[________] B Loan": As defined in the preliminary statement.
"[________] B Loan Noteholder": The holder of the Note for the
[________] B Loan.
"[________] Control Appraisal Event": With respect to the [________]
Loan Combination, a [________] Control Appraisal Event shall be deemed to have
occurred and be continuing if (i) the initial principal balance of the
[________] B Loan, as reduced by any payments of principal (whether as scheduled
amortization, principal prepayments or otherwise) allocated to the [________] B
Loan and any appraisal reduction amounts and realized losses allocated to the
[________] B Loan, is less than 25% of the initial principal balance of the
[________] B Loan, as reduced by any payments of principal (whether as scheduled
amortization, principal prepayments or otherwise allocated to the [________] B
Loan) or (ii) the holder of the [________] B Loan is an affiliate of the related
borrower.
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"[________] Mortgage Loan": As defined in the preliminary statement
herein.
"[________] Loan Combination": As defined in the preliminary
statement herein.
"Late Collections": With respect to any Mortgage Loan or Loan
Combination, all amounts received thereon during any Collection Period (or the
related grace period), whether as payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or otherwise, which represent late payments or
collections of principal or interest due in respect of such Mortgage Loan or
Loan Combination (without regard to any acceleration of amounts due thereunder
by reason of default) on a Due Date in a previous Collection Period and not
previously recovered. With respect to any REO Loan, all amounts received in
connection with the related REO Property during any Collection Period (including
any grace period applicable under the original Mortgage Loan or Loan
Combination), whether as Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds, REO Proceeds or otherwise, which represent late collections of
principal or interest due or deemed due in respect of such REO Loan or the
predecessor Mortgage Loan or Loan Combination (without regard to any
acceleration of amounts due under the predecessor Mortgage Loan or Loan
Combination by reason of default) on a Due Date in a previous Collection Period
and not previously recovered. The term "Late Collections" shall specifically
exclude Penalty Charges.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Master Servicer, the Special
Servicer and the Trustee in connection with the liquidation of any Mortgage Loan
or Loan Combination or the liquidation of an REO Property or the sale of any
Mortgage Loan pursuant to Section 3.18 or Section 9.01 (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 Loan or REO Loan or with respect to each
Mortgage Loan as specified in clause (b) of this definition, in each case as to
which the Special Servicer obtains a full, partial or discounted payoff from the
related Borrower or Mortgage Loan Seller, as applicable, 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
net Liquidation Proceeds (net of the related costs and expenses associated with
the related liquidation) related to such liquidated or repurchased Mortgage Loan
or Specially Serviced Loan, as the case may be; provided, however, that (a) no
such fee shall be payable with respect to clauses (iii) or (v) of the definition
of Liquidation Proceeds (except, in the case of clause (iii), to the extent a
Liquidation Fee is required to be paid pursuant to Section 3.18 hereof); no such
fee shall be payable in the case of clause (vi) of the definition of Liquidation
Proceeds unless the existing or any future related mezzanine intercreditor
agreement requires the purchaser to pay such fee; no such fee shall be payable
in the case of clause (vii) of the definition of Liquidation Proceeds except to
the extent the related Co-Lender Agreement requires the purchaser to pay such
fee, and (b) in the case of a final disposition consisting of the repurchase of
a Mortgage Loan (or related REO Loan) by the Mortgage Loan Seller pursuant to
Section 2.03(d), no such fee shall be paid by the Mortgage Loan Seller or be due
to the Special Servicer if the Mortgage Loan Seller repurchases such Mortgage
Loan within the time period set forth in Section 2.03(d) (and giving effect to
any
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applicable extension period beyond the end of the Initial Resolution Period set
forth in Section 2.03(d)).
"Liquidation Fee Rate": A rate equal to [__]%.
"Liquidation Proceeds": Cash amounts (other than Insurance Proceeds
and Condemnation Proceeds and REO Revenues) received by or paid to the Master
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 Borrower in accordance with applicable law and the terms and conditions
of the related Note and Mortgage; (ii) the realization upon any deficiency
judgment obtained against a Borrower; (iii) the purchase of a Defaulted Mortgage
Loan by the Directing Certificateholder, the Special Servicer pursuant to
Section 3.18; (iv) the repurchase of a Mortgage Loan (or related REO Loan) by
the Mortgage Loan Seller pursuant to Section 2.03(d); (v) the purchase of all
the Mortgage Loans and all property acquired in respect of any Mortgage Loan by
the Sole Certificateholder, the Certificateholder owning a majority of the
Percentage Interests in the Controlling Class, the Special Servicer or the
Master Servicer pursuant to Section 9.01; (vi) in connection with any existing
mezzanine indebtedness or any mezzanine indebtedness that may exist on a future
date, the purchase of the related Mortgage Loan by a mezzanine lender; or (vii)
in the case of the [__________] Mortgage Loan, the purchase of such Mortgage
Loan by the holder of the related B Loan, or the applicable designee, as
applicable, pursuant to the related Co-Lender Agreement; or (viii) except for
purposes of Section 3.12(c) and (d), the transfer of any Loss of Value Payments
from the Loss of Value Reserve Fund to the Collection Account.
"Loan Agreement": With respect to any Mortgage Loan or Loan
Combination, the loan agreement, if any, between the related Originator and the
Borrower, pursuant to which such Mortgage Loan was made.
"Loan Combination": The [________] Loan Combination.
"Loan Combination Collection Account": With respect to the Loan
Combination, the separate account or subaccount created and maintained by the
Master Servicer pursuant to Section 3.05(h) on behalf of the Certificateholders
and the [_____] B Loan Noteholder, which shall be entitled [__________], as
Servicer for the Certificateholders and the [_________] B Loan Noteholder
relating to, and for the benefit of [________], as Trustee, in trust for the
Holders of, Deutsche Mortgage & Asset Receiving Corporation, COMM 200[_]-[_]
Commercial Mortgage Pass-Through Certificates, Loan Combination Collection
Account." Amounts in the Loan Combination Collection Account applicable to the
related [_____] B Loan shall not be assets of the Trust Fund, but instead shall
be held by the Master Servicer on behalf of the Trust Fund (in respect of
amounts reimbursable therefrom) and, the [_____] B Loan Noteholder. Such account
or subaccount shall be an Eligible Account.
"Loan Combination Remittance Amount": For each distribution date
that the Master Servicer is required to make a distribution to the [_____] B
Loan Noteholder pursuant to Section 3.05(i) and with respect to the Loan
Combination and related Mortgaged Property (if it becomes an REO Property), any
amount received by the Master Servicer (or, with respect to an REO Property, the
Special Servicer) during the related Collection Period net of any amount
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payable or reimbursable to any Person from the Loan Combination Collection
Account pursuant to Section 3.06(c).
"Loan Combination REO Account": As defined in Section 3.17(b).
"Loan Documents": With respect to any Mortgage Loan or Loan
Combination, the documents executed or delivered in connection with the
origination of such Mortgage Loan or Loan Combination or subsequently added to
the related Mortgage File.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loan that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 2.
"Loan Level Reserve/LOC Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Loan Level Reserve/LOC Report" available as of the Closing Date on the CMSA
Website, or such other final form for the presentation of such information and
containing such additional information as may from time to time be promulgated
as recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Loan Level Reserve/LOC Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer or the Special Servicer, as applicable.
"Loan Number": With respect to any Mortgage Loan, the loan number by
which such Mortgage Loan was identified on the books and records of the
Depositor or any Sub-Servicer for the Depositor, as set forth in the Mortgage
Loan Schedule.
"Lock-Box Account": With respect to any Mortgaged Property, if
applicable, any account created pursuant to the related Loan Documents to
receive revenues therefrom. Any Lock-Box Account shall be beneficially owned for
federal income tax purposes by the Person who is entitled to receive the
reinvestment income or gain thereon in accordance with the terms and provisions
of the related Mortgage Loan or Loan Combination and Section 3.07, which Person
shall be taxed on all reinvestment income or gain thereon. The Master Servicer
shall be permitted to make withdrawals therefrom for deposit into the related
Cash Collateral Accounts in accordance with the terms of the related Mortgage
Loan.
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"Lock-Box Agreement": With respect to any Mortgage Loan or Loan
Combination, the lock-box agreement, if any, between the related Originator and
the Borrower, pursuant to which the related Lock-Box Account, if any, may have
been established.
"Loss of Value Payment": As defined in Section 2.03(d).
"Loss of Value Reserve Fund": The "outside reserve fund" (within the
meaning of Treasury Regulations Section 1.860G-2(h)) designated as such pursuant
to Section 3.05(e) of this Agreement. The Loss of Value Reserve Fund will be
part of the Trust Fund but not part of the Grantor Trust or any REMIC.
"Lower-Tier Distribution Account": The segregated trust account or
sub-account created and maintained by the Trustee pursuant to Section 3.05(b),
which shall be entitled "[________], as Trustee, in trust for Holders of
Deutsche Mortgage & Asset Receiving Corporation, COMM 200[_]-[_] Commercial
Mortgage Pass-Through Certificates, Lower-Tier Distribution Account" and which
must be an Eligible Account or a sub-account of an Eligible Account. The
Lower-Tier Distribution Account shall be an asset of the Lower-Tier REMIC.
"Lower-Tier Distribution Amount": As defined in Section 4.01(a)(ii).
"Lower-Tier Principal Balance": With respect to any Class of
Lower-Tier Regular Interest, initially will equal the original principal balance
set forth in the preliminary statement herein, and from time to time will equal
such amount reduced by the amount of distributions of the Lower-Tier
Distribution Amount allocable to principal and Realized Losses allocable thereto
in all prior periods as described in Section 4.01(a)(ii) and 4.01(f) hereof.
"Lower-Tier Regular Interests": The [Class A-1L-1] Interest, the
[Class A-1L-2] Interest, the [Class A-1L-3] Interest, the [Class A-1L-4]
Interest, the [Class A-2L-1] Interest, the [Class A-2L-2] Interest, the [Class
A-2L-3] Interest, the [Class A-2L-4] Interest, the [Class A-2L-5] Interest, the
[Class A-2L-6] Interest, the [Class A-3L] Interest, the [Class A-4L] Interest,
the [Class A-ABL-1] Interest, the [Class A-ABL-2] Interest, the [Class A-5AL-1]
Interest, the [Class A-5AL-2] Interest, the [Class A-5AL-3] Interest, the [Class
A-5AL-4] Interest, the [Class A-5AL-5] Interest, the [Class A-5AL-6] Interest,
the [Class A-5BL] Interest, the [Class A-1AL-1] Interest, the [Class A-1AL-2]
Interest, the [Class A-1AL-3] Interest, the [Class A-1AL-4] Interest, the [Class
A-1AL-5] Interest, the [Class A-1AL-6] Interest, the [Class A-1AL-7] Interest,
the [Class A-1AL-8] Interest, the [Class A-1AL-9] Interest, the [Class A-1AL-10]
Interest, the [Class A-1AL-11] Interest, the [Class A-1AL-12] Interest, the
[Class A-1AL-13] Interest, the [Class A-1AL-14] Interest, the [Class A-1AL-15]
Interest, the [Class A-JL] Interest, the [Class X-X] Interest, the [Class C-L]
Interest, the [Class D-L-1] Interest, the [Class D-L-2] Interest, the [Class
E-L-1] Interest, the [Class E-L-2] Interest, the [Class E-L-3] Interest, the
[Class E-L-4] Interest, the [Class F-L-1] Interest, the [Class F-L-2] Interest,
the [Class G-L-1] Interest, the [Class G-L-2] Interest, the [Class G-L-3]
Interest, the [Class H-L-1] Interest, the [Class H-L-2] Interest, the [Class
X-X-1] Interest, the [Class X-X-2] Interest, the [Class K-L-1] Interest, the
[Class K-L-2] Interest, the [Class L-L] Interest, the [Class M-L] Interest, the
[Class N-L] Interest, the [Class O-L] Interest and the [Class P-L] Interest,
issued by the Lower-Tier REMIC and held by the Trustee as assets of the
Upper-Tier REMIC. Each Lower-Tier Regular Interest (i) relates to a Class of
Certificates (other than the [Class R], [Class LR], [Class X-C], and [Class X-P]
Certificates), (ii) is uncertificated, (iii) has
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an initial Lower-Tier Principal Balance equal to the original Lower-Tier
Principal Balance set forth in the preliminary statement herein, (iv) has a
Pass-Through Rate equal to the Weighted Average Net Mortgage Pass-Through Rate,
(v) has a "latest possible maturity date," within the meaning of Treasury
Regulations Section 1.860G-1(a), that is the Rated Final Distribution Date and
(vi) is entitled to the distributions in the amounts and at the times specified
in Section 4.01(a)(ii) and Section 4.01(c).
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans, the Loan REMIC Regular Interest, collections
thereon, the Trust's interest in any REO Property acquired in respect thereof,
amounts held from time to time in the Collection Account and the Lower-Tier
Distribution Account, the REO Account (to the extent of the Trust Fund's
interest therein), the Interest Reserve Account and the Excess Liquidation
Proceeds Account (to the extent of the Trust Fund's interest therein) in respect
thereof, and all other property included in the Trust Fund that is not in the
Upper-Tier REMIC or the Grantor Trust.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Mortgage Loan or Loan
Combination, the Management Agreement, if any, by and between the Manager and
the related Borrower, or any successor Management Agreement between such
parties.
"Manager": With respect to any Mortgage Loan or Loan Combination,
any property manager for the related Mortgaged Properties.
"Master Servicer Event of Default": As defined in Section 7.01(a).
"Master Servicer Prepayment Interest Shortfall": As defined in
Section 3.19(c).
"Master Servicer Remittance Date": With respect to any Distribution
Date, the Business Day preceding such Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan, but
excluding the B Loans and for any Distribution Date, an amount per Interest
Accrual Period equal to the product of (i) the respective Master Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loan as of the Due
Date in the immediately preceding Collection Period (without giving effect to
payments of principal on such Mortgage Loan on such Due Date). For the avoidance
of doubt, with respect to any B Loan, no Master Servicing Fee shall accrue on
the Stated Principal Balance thereof.
"Master Servicing Fee Rate": With respect to each Mortgage Loan, the
rate per annum set forth on Exhibit B-2.
"Material Breach": As defined in Section 2.03(d).
"Material Defect": As defined in Section 2.03(d).
"Maturity Date": With respect to any Mortgage Loan or the [_____] B
Loan as of any date of determination, the date on which the last payment of
principal is due and payable
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under the related Note, after taking into account all Principal Prepayments
received prior to such date of determination, but without giving effect to (i)
any acceleration of the principal of such Mortgage Loan or the [_____] B Loan by
reason of default thereunder or (ii) any grace period permitted by the related
Note.
"Modified Mortgage Loan": Any Specially Serviced Loan which has been
modified by the Special Servicer pursuant to Section 3.30 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Mortgage Loan or the [_____] B
Loan), including any reduction in the Monthly Payment;
(b) except as expressly contemplated by the related Mortgage,
results in a release of the lien of the Mortgage on any material portion
of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount not less than the fair market value (as is), as
determined by an Appraisal delivered to the Special Servicer (at the
expense of the related Borrower and upon which the Special Servicer may
conclusively rely), of the property to be released; or
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage Loan
or the [_____] B Loan or reduces the likelihood of timely payment of
amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan or the [_____]
B Loan (other than any REO Loan) and any Due Date, the scheduled monthly payment
of principal, if any, and interest at the Mortgage Rate, excluding any Balloon
Payment (but not excluding any constant Monthly Payment due on a Balloon Loan),
which is payable by the related Borrower on such Due Date under the related
Note. With respect to an REO Loan, the monthly payment that would otherwise have
been payable on the related Due Date had the related Note not been discharged,
determined as set forth in the preceding sentence and on the assumption that all
other amounts, if any, due thereunder are paid when due.
"[Moody's]": [Xxxxx'x] Investors Service, Inc., and its successors
in interest.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first lien on or first priority ownership interest in a Mortgaged Property
securing a Note.
"Mortgage File": With respect to any Mortgage Loan or the [_____] B
Loan, collectively, the mortgage documents listed in Section 2.01(a)(i) through
(xx) pertaining to such particular Mortgage Loan or the [_____] B Loan and any
additional documents required to be added to such Mortgage File pursuant to the
express provisions of this Agreement.
"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. The mortgage loans originally so transferred, assigned and held are
identified on the Mortgage Loan Schedule as of the Closing Date. Such term shall
include any REO Loan, Specially Serviced Loan or any
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Mortgage Loan that has been defeased in whole or in part. Such term shall not
include the B Loan.
"Mortgage Loan Purchase Agreements": Each of the [____] Purchase
Agreement and the [____] Purchase Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans included in the
Trust Fund as of the Closing Date being attached hereto as Exhibit B-1, which
list shall set forth the following information with respect to each Mortgage
Loan:
(a) the loan number;
(b) the street address (including city, state and zip code) of the
related Mortgaged Property;
(c) the Mortgage Rate in effect as of the Cut-off Date;
(d) the original principal balance;
(e) the Stated Principal Balance as of the Cut-off Date;
(f) the Maturity Date for each Mortgage Loan;
(g) the Due Date;
(h) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(i) [Reserved];
(j) the Servicing Fee Rate;
(k) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(l) whether such Mortgage Loan has a hard lock-box, a springing hard
lock-box, a soft-at-closing, springing hard lock-box or no lock-box at
all;
(m) identifying any Mortgage Loans with which any such Mortgage
Loans are cross-collateralized;
(n) the applicable Loan Group to which such Mortgage Loan belongs;
and
(o) the number of units, pads, rooms or square feet with respect to
each Mortgaged Property.
Such list may be in the form of more than one list, collectively setting forth
all of the information required. A comparable list shall be prepared with
respect to the [_____] B Loan.
"Mortgage Loan Seller[s]": [________].
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"Mortgage Pool": All of the Mortgage Loans and any successor REO
Loans, collectively. The Mortgage Pool does not include the [_____] B Loan, or
any related REO Loans.
"Mortgaged Property": The underlying property securing a Mortgage
Loan including any REO Property, consisting of a fee simple estate, and, with
respect to certain Mortgage Loans, a leasehold estate or both a leasehold estate
and a fee simple estate, or a leasehold estate in a portion of the property and
a fee simple estate in the remainder, in a parcel of land improved by a
commercial property, together with any personal property, fixtures, leases and
other property or rights pertaining thereto.
"Mortgage Rate": With respect to each Mortgage Loan, [_____] B Loan
and any Interest Accrual Period, the annual rate at which interest accrues on
such Mortgage Loan or the [_____] B Loan during such period (in the absence of a
default), as set forth in the related Note from time to time. The "Mortgage
Rate" for purposes of calculating the Net Mortgage Pass-Through Rate and the
Weighted Average Net Mortgage Pass-Through Rate shall be the Mortgage Rate of
such Mortgage Loan or the [_____] B Loan without giving effect to any Default
Rate and without taking into account any reduction in the interest rate by a
bankruptcy court pursuant to a plan of reorganization or pursuant to any of its
equitable powers or a reduction in interest or principal due to a modification
pursuant to Section 3.31, 3.32, 3.33 or 3.34 hereof, as applicable.
"Net Condemnation Proceeds": Condemnation Proceeds, to the extent
such proceeds are not to be applied to the restoration, preservation or repair
of the related Mortgaged Property or released to the Borrower in accordance with
the express requirements of the Mortgage or Note or other documents included in
the Mortgage File or in accordance with the Servicing Standard.
"Net Default Interest": With respect to any Distribution Date, an
amount equal to the sum of (i) the amount of the aggregate collected Default
Interest allocable to the Mortgage Loans received during the preceding
Collection Period, minus (ii) any portions thereof withdrawn (A) from the
Collection Account pursuant to Section 3.06(b)(ix) for Advance Interest Amounts
and unreimbursed Additional Trust Fund Expenses incurred during or prior to such
Collection Period and (B) from the Loan Combination Collection Account pursuant
to Section 3.06(c)(ix) for Advance Interest Amounts and unreimbursed Additional
Trust Fund Expenses incurred during such Collection Period.
"Net Insurance Proceeds": Insurance Proceeds, to the extent such
proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Borrower in accordance with the express requirements
of the Mortgage or Note or other documents included in the Mortgage File or in
accordance with prudent and customary servicing practices.
"Net Liquidation Proceeds": The Liquidation Proceeds received with
respect to any Mortgage Loan or Loan Combination net of the amount of (i)
Liquidation Expenses incurred with respect thereto and, (ii) with respect to
proceeds received in connection with the taking of a Mortgaged Property (or
portion thereof) by the power of eminent domain in condemnation, amounts
required to be applied to the restoration or repair of the related Mortgaged
Property.
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"Net Mortgage Pass-Through Rate": With respect to any Mortgage Loan
or the [_____] B Loan and any Distribution Date, the per annum rate equal to the
Mortgage Rate for such Mortgage Loan or the [_____] B Loan, minus, for any such
Mortgage Loan or the [_____] B Loan, the aggregate of the applicable Servicing
Fee Rate and Trustee Fee Rate; provided, however, that for purposes of
calculating Pass-Through Rates, the Net Mortgage Pass-Through Rate for any
Mortgage Loan or the [_____] B Loan will be determined without regard to any
modification, waiver or amendment of the terms of such Mortgage Loan or the
[_____] B Loan, whether agreed to by the Master Servicer or resulting from a
bankruptcy, insolvency or similar proceeding involving the Borrower.
Notwithstanding the foregoing, if any such Mortgage Loan does not
accrue interest on the basis of a 360-day year consisting of twelve 30-day
months, then the "Net Mortgage Pass-Through Rate" of such Mortgage Loan for any
Interest Accrual Period 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 in respect of such Mortgage Loan at the related
Mortgage Rate less the Servicing Fee Rate and the Trustee Fee Rate during such
Interest Accrual Period; provided, however, that with respect to each such
Mortgage Loan, the Mortgage Rate for the one-month period (i) preceding the Due
Dates in (a) January and February in each year that is not a leap year or (b)
February only in each year that is a leap year will be determined exclusive of
the amounts withheld from that month and (ii) preceding the Due Date in March,
will be determined inclusive of the Withheld Amounts from the immediately
preceding February and, if applicable, January.
"Net Prepayment Interest Excess": The excess amount, if any, that
the aggregate of all Prepayment Interest Excess for all Mortgage Loans that the
Master Servicer is servicing exceeds the aggregate of all Prepayment Interest
Shortfalls for such Mortgage Loans as of any Distribution Date.
"Net Prepayment Interest Shortfall": With respect to the Mortgage
Loans that the Master Servicer is servicing, the aggregate Prepayment Interest
Shortfalls on such Mortgage Loans in excess of the Master Servicer Prepayment
Interest Shortfall on such Mortgage Loans.
"Net REO Proceeds": With respect to each REO Property, REO Proceeds
with respect to such REO Property net of any insurance premiums, taxes,
assessments and other costs and expenses permitted to be paid therefrom pursuant
to Section 3.17(b) of this Agreement.
"New Lease": Any lease of REO Property entered into on behalf of the
Loan REMIC, if applicable, or the Lower-Tier REMIC if such REMIC has the right
to renegotiate the terms of such lease, including any lease renewed or extended
on behalf of such REMIC.
"NOI Adjustment Worksheet": A report substantially in the form of,
and containing the information called for in, the downloadable form of the "NOI
Adjustment Worksheet" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be promulgated as recommended 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
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on the CMSA Website, is acceptable to the Master Servicer or the Special
Servicer, as applicable.
"Non-U.S. Person": A person that is not a U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Property Advance. Workout-Delayed Reimbursement Amounts shall
constitute a Nonrecoverable Advance only when the Person making such
determination in accordance with the procedures specified in the definition of
Nonrecoverable P&I Advance or Nonrecoverable Property Advance, as applicable,
and taking into account factors such as all other outstanding Advances, has
determined that such Workout-Delayed Reimbursement Amounts, together with any
accrued and unpaid interest thereon, would not ultimately be recoverable from
Late Collections or any other recovery on or in respect of (i) with respect to
Nonrecoverable P&I Advances, general collections on the related Mortgage Loan or
REO Loan and (ii) with respect to Nonrecoverable Property Advances, the general
collections on the related Mortgage Loan (or if applicable, the Loan
Combination) or REO Loan.
"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 Master Servicer, the Special Servicer, in each case
in accordance with the Servicing Standard, or the Trustee, as applicable, would
not be ultimately recoverable, together with any accrued and unpaid interest
thereon, from late payments, Condemnation Proceeds, Insurance Proceeds,
Liquidation Proceeds and other collections on or in respect of the related
Mortgage Loan or REO Loan, which shall be evidenced by an officer certificate as
provided by Section 4.07(c). In the case of a Cross-Collateralized Mortgage
Loan, such recoverability determination shall take into account the cross
collateralization of the related Cross-Collateralized Mortgage Loan.
"Nonrecoverable Property Advance": Any Property Advance previously
made or proposed to be made in respect of a Mortgage Loan or the Loan
Combination or any REO Property that, in the reasonable judgment of the Master
Servicer, the Special Servicer, in each case in accordance with the Servicing
Standard, or the Trustee, as applicable, would not be ultimately recoverable,
together with any accrued and unpaid interest thereon, from late payments,
Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and other
collections on or in respect of the related Mortgage Loan, REO Loan or Loan
Combination, which shall be evidenced by an officer certificate as provided by
Section 3.24(d). In the case of a cross-collateralized Mortgage Loan, such
recoverability determination shall take into account the cross collateralization
of the related cross-collateralized Mortgage Loan.
"Note": With respect to any Mortgage Loan or the [_____] B Loan as
of any date of determination, the note or other evidence of indebtedness and/or
agreements evidencing the indebtedness of a Borrower under such Mortgage Loan or
the [_____] B Loan including any amendments or modifications, or any renewal or
substitution notes, as of such date.
"Notice of Termination": Any of the notices given to the Trustee and
the Master Servicer by the Certificateholder owning a majority of the Percentage
Interests in the Controlling Class, the Special Servicer or the Master Servicer
pursuant to Section 9.01(c).
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"Notional Amount" or "Notional Balance": As of any date of
determination: (i) with respect to all of the [Class X-C] Certificates as a
Class, the [Class X-C] Notional Amount as of such date of determination; (ii)
with respect to any [Class X-C] Certificate, the product of the Percentage
Interest evidenced by such Certificate and the [Class X-C] Notional Amount as of
such date of determination; (iii) with respect to all of the [Class X-P]
Certificates as a Class, the [Class X-P] Notional Amount as of such date of
determination; (iv) with respect to any [Class X-P] Certificate, the product of
the Percentage Interest evidenced by such Certificate and the [Class X-P]
Notional Amount as of such date of determination; and (v) with respect to any
Component, as set forth in the definition of such Component.
"Officer's Certificate": A certificate signed by the Additional
Servicer, the Chairman of the Board, the Vice Chairman of the Board, the
President or a Vice President (however denominated) and by the Treasurer, the
Secretary, one of the Assistant Treasurers or Assistant Secretaries, any Trust
Officer or other officer of the Master Servicer or Special Servicer customarily
performing functions similar to those performed by any of the above designated
officers, any Servicing Officer and also with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject, or an authorized
officer of the Depositor, and delivered to the Depositor, the Trustee, the
Special Servicer or the Master Servicer, as the case may be.
"Operating Statement Analysis Report": A report substantially in the
form of, and contain the information called for in, the downloadable form of the
"Operating Statement Analysis Report" available as of the Closing Date on the
CMSA Website or in such other form for the presentation of such information and
containing such additional information as may from time to time be promulgated
as recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Operating
Statement Analysis Report" available as of the Closing Date on the CMSA Website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Depositor, the Special Servicer or the Master
Servicer, as the case may be, acceptable to the Trustee, except that any opinion
of counsel relating to (a) qualification of the Loan REMIC, the Upper-Tier REMIC
or the Lower-Tier REMIC as a REMIC or the imposition of tax under the REMIC
Provisions on any income or property of any REMIC, (b) compliance with the REMIC
Provisions (including application of the definition of "Independent
Contractor"), (c) qualification of the Grantor Trust as a grantor trust or (d) a
resignation of the Master Servicer or the Special Servicer pursuant to Section
6.04, must be an opinion of counsel who is Independent of the Depositor and the
Master Servicer.
"Originator": Any of (i) the Mortgage Loan Seller, and (ii) with
respect to any Mortgage Loan acquired by the Mortgage Loan Seller, the
originator of such Mortgage Loan.
"Ownership Interest": Any record or beneficial interest in a [Class
R] or [Class LR] Certificate.
"P&I Advance": As to any Mortgage Loan, any advance made by the
Master Servicer or the Trustee pursuant to Section 4.07. Each reference to the
payment or
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reimbursement of a P&I Advance shall be deemed to include, whether or not
specifically referred to and without duplication, payment or reimbursement of
interest thereon at the Advance Rate from and including the date of the making
of such P&I Advance to and including the date of payment or reimbursement.
"P&I Advance Determination Date": With respect to any Distribution
Date, the second Business Day prior to such Distribution Date.
"Pass-Through Rate": With respect to each Class of Certificates
(other than the [Class R] and [Class LR] Certificates), the Pass-Through Rate
for such Class as set forth below:
Class Pass-Through Rate
-------------------------- -----------------------------
[Class A-1].............. [Class A-1] Pass-Through Rate
[Class A-2].............. [Class A-2] Pass-Through Rate
[Class A-3].............. [Class A-3] Pass-Through Rate
[Class A-4].............. [Class A-4] Pass-Through Rate
[Class A-AB]............. [Class A-AB] Pass-Through Rate
[Class A-5A]............. [Class A-5A] Pass-Through Rate
[Class A-5B]............. [Class A-5B] Pass-Through Rate
[Class A-1A]............. [Class A-1A] Pass-Through Rate
[Class X-C].............. [Class X-C] Pass-Through Rate
[Class X-P].............. [Class X-P] Pass-Through Rate
[Class A-J].............. [Class A-J] Pass-Through Rate
[Class B]................ [Class B] Pass-Through Rate
[Class C]................ [Class C] Pass-Through Rate
[Class D]................ [Class D] Pass-Through Rate
[Class E]................ [Class E] Pass-Through Rate
[Class F]................ [Class F] Pass-Through Rate
[Class G]................ [Class G] Pass-Through Rate
[Class H]................ [Class H] Pass-Through Rate
[Class J]................ [Class J] Pass-Through Rate
[Class K]................ [Class K] Pass-Through Rate
[Class L]................ [Class L] Pass-Through Rate
[Class M]................ [Class M] Pass-Through Rate
[Class N]................ [Class N] Pass-Through Rate
[Class O]................ [Class O] Pass-Through Rate
[Class P]................ [Class P] Pass-Through Rate
With respect to each Class of Lower-Tier Regular Interests, the
Weighted Average Net Mortgage Pass-Through Rate.
"Paying Agent": The paying agent appointed pursuant to Section 5.04.
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Charges": With respect to any Mortgage Loan or the [_____]
B Loan (or successor REO Loan), any amounts collected thereon that represent
late payment charges or Default Interest, other than a Yield Maintenance Charge.
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"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 Certificate (except the [Class R] and
[Class LR] Certificates), the percentage interest is equal to the initial
denomination of such Certificate divided by the initial Certificate Balance or
Notional Balance, as applicable, of such Class of Certificates. With respect to
any [Class R] or [Class LR] Certificate, the percentage interest is set forth on
the face thereof.
"Performing Loan": A Mortgage Loan or Loan Combination that is not a
Specially Serviced Loan or REO Loan.
"Permitted Investments": Any one or more of the following
obligations or securities payable on demand or having a scheduled maturity on or
before the Business Day preceding the date upon which such funds are required to
be drawn, regardless of whether issued by the Depositor, the Master Servicer,
the Special Servicer, the Trustee or any of its respective Affiliates and having
at all times the required ratings, if any, provided for in this definition,
unless each Rating Agency shall have confirmed in writing to the Master Servicer
that a lower rating would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings assigned to the
Certificates:
(a) direct obligations of, or obligations fully guaranteed as to
payment of principal and interest by, the United States or any agency or
instrumentality thereof provided such obligations are backed by the full
faith and credit of the United States of America including, without
limitation, obligations of the U.S. Treasury (all direct or fully
guaranteed obligations), the Farmers Home Administration (certificates of
beneficial ownership), the General Services Administration (participation
certificates), the U.S. Maritime Administration (guaranteed Title XI
financing), the Small Business Administration (guaranteed participation
certificates and guaranteed pool certificates), the U.S. Department of
Housing and Urban Development (local authority bonds) and the Washington
Metropolitan Area Transit Authority (guaranteed transit bonds); provided,
however, that each investment described in this clause must (A) have a
predetermined fixed dollar amount of principal due at maturity, which
cannot vary or change, (B) if bearing a variable rate of interest, have
its interest rate tied to a single interest rate index plus a fixed spread
(if any) and move proportionately with that index, and (C) not be subject
to liquidation prior to its maturity;
(b) Federal Housing Administration debentures;
(c) obligations of the following United States government sponsored
agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm
Credit System (consolidated systemwide bonds and notes), the Federal Home
Loan Banks (consolidated debt obligations), the Federal National Mortgage
Association (debt obligations), the Student Loan Marketing Association
(debt obligations), the Financing Corp. (debt obligations), and the
Resolution Funding Corp. (debt obligations); provided, however, that each
investment described in this clause must (A) have a predetermined fixed
dollar amount of principal due at maturity, which cannot vary or change,
(B) if bearing a variable rate of interest, its interest rate tied to a
single interest rate index plus a fixed spread (if any) and move
proportionately with that index, and (C) not be subject to liquidation
prior to their maturity;
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(d) federal funds, unsecured certificates of deposit, time or
similar deposits, bankers' acceptances and repurchase agreements, with
maturities of not more than 365 days, of any bank, the short term
obligations of which are rated in the highest short term rating category
by each Rating Agency or, if not rated by [S&P] or [Moody's], as
applicable, otherwise acceptable to [S&P] or [Moody's], as applicable, and
in each case as confirmed in writing that such investment would not, in
and of itself, result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates; provided, however, that
the investment described in this clause must (A) have a predetermined
fixed dollar amount of principal due at maturity, which cannot vary or
change, (B) if bearing a variable rate of interest, have its interest rate
tied to a single interest rate index plus a fixed spread (if any) and move
proportionately with that index, and (C) not be subject to liquidation
prior to its maturity;
(e) fully Federal Deposit Insurance Corporation-insured demand and
time deposits in, or certificates of deposit of, or bankers' acceptances
issued by, any bank or trust company, savings and loan association or
savings bank, and, if such demand and time deposits in, or certificates of
deposit of, or bankers' acceptances are not fully insured by the Federal
Deposit Insurance Corporation, the short term obligations of such bank or
trust company, savings and loan association or savings bank are rated in
the highest short term rating category by each Rating Agency or, if not
rated by [S&P] or [Moody's], as applicable, otherwise acceptable to [S&P]
or [Moody's], as applicable, and in each case as confirmed in writing that
such investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings assigned to the
Certificates; provided, however, that each investment described in this
clause must (A) have a predetermined fixed dollar amount of principal due
at maturity, which cannot vary or change, (B) if bearing a variable rate
of interest, its interest rate tied to a single interest rate index plus a
fixed spread (if any) and move proportionately with that index, and (C)
not be subject to liquidation prior to their maturity;
(f) debt obligations with maturities of not more than 365 days rated
in the highest long-term unsecured rating category by each Rating Agency
or, if not rated by [S&P] or [Moody's], as applicable, otherwise
acceptable to [S&P] or [Moody's], as applicable, and in each case as
confirmed in writing that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates; provided, however, that each
investment described in this clause must (A) have a predetermined fixed
dollar amount of principal due at maturity, which cannot vary or change,
(B) if bearing a variable rate of interest, have its interest rate tied to
a single interest rate index plus a fixed spread (if any) and move
proportionately with that index, and (C) not be subject to liquidation
prior to its maturity;
(g) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
with maturities of not more than 365 days and that is rated in the highest
short-term unsecured debt rating by each Rating Agency or, if not rated by
[S&P] or [Moody's], as applicable, otherwise acceptable to [S&P] or
[Moody's], as applicable, and in each case as confirmed in writing that
such investment would not, in and of itself, result in a downgrade,
qualification or withdrawal
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of the then-current ratings assigned to the Certificates; provided,
however, that each investment described in this clause must (A) have a
predetermined fixed dollar amount of principal due at maturity, which
cannot vary or change, (B) if bearing a variable rate of interest, have
its interest rate tied to a single interest rate index plus a fixed spread
(if any) and move proportionately with that index, and (C) not be subject
to liquidation prior to their maturity;
(h) units of taxable money market mutual funds, issued by regulated
investment companies, which seek to maintain a constant net asset value
per share (including the Federated Prime Obligation Money Market Fund (the
"Fund")) so long as any such fund is rated in the highest short-term
unsecured debt ratings category by each Rating Agency or, if not rated by
[S&P] or [Moody's], as applicable, otherwise acceptable to [S&P] or
[Moody's], as applicable, and in each case as confirmed in writing that
such investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings assigned to the
Certificates; and
(i) any other demand, money market or time deposit, demand
obligation or any other obligation, security or investment, provided that
each Rating Agency has confirmed in writing to the Master Servicer,
Special Servicer or Trustee, as applicable, that such investment would
not, in and of itself, result in a downgrade, qualification or withdrawal
of the then-current ratings assigned to the Certificates.
provided, however, that no instrument or security shall be a Permitted
Investment (a) unless such instrument is a "cash flow investment" earning a
passive return in the nature of interest pursuant to Code Section 860G(a)(6) or
(b) if (i) such instrument or security evidences a right to receive only
interest payments or (ii) the right to receive principal and interest payments
derived from the underlying investment provides a yield to maturity in excess of
120% of the yield to maturity at par of such underlying investment or (c) if it
may be redeemed of a price below the purchase price. No Permitted Investment may
be purchased at a price in excess of par or sold prior to maturity if such sale
would result in a loss of principal or a tax on a prohibited transaction under
Section 860F of the Code.
"Permitted Transferee": With respect to a [Class R] or [Class LR]
Certificate, any Person or agent thereof that is a Qualified Institutional
Buyer, an Affiliated Person or an Institutional Accredited Investor, other than
(a) a Disqualified Organization, (b) any other Person so designated by the
Certificate Registrar who is unable to provide an Opinion of Counsel (provided
at the expense of such Person or the Person requesting the Transfer) to the
effect that the Transfer of an Ownership Interest in any [Class R] or [Class LR]
Certificate to such Person will not cause the Loan REMIC, the Upper-Tier REMIC
or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that the
Certificates are outstanding, (c) a Person that is a Disqualified Non-U.S.
Person and (d) a Plan or any Person investing the assets of a Plan.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(k).
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"Prepayment Assumption": The assumption that each Mortgage Loan does
not prepay prior to its respective Maturity Date.
"Prepayment Date": As defined in Section 2.03(d).
"Prepayment Interest Excess": With respect to any Distribution Date,
the aggregate amount, with respect to all Mortgage Loans that were subject to
Principal Prepayment in full or in part, or as to which Insurance Proceeds,
Liquidation Proceeds or Condemnation Proceeds, as applicable, were received by
the Master Servicer or Special Servicer for application to such Mortgage Loans,
in each case after the Due Date in the month of such Distribution Date and on or
prior to the related Determination Date, the amount of interest accrued at the
Mortgage Rate for such Mortgage Loans on the amount of such Principal
Prepayments, Insurance Proceeds, Liquidation Proceeds and Condemnation Proceeds
after the Due Date relating to such Collection Period and accruing in the manner
set forth in the related Loan Documents, to the extent such interest is
collected by the Master Servicer or the Special Servicer (without regard to any
Prepayment Premium or Yield Maintenance Charge actually collected).
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Mortgage Loan that was subject to a Principal Prepayment in full
or in part and which did not include a full month's interest, or as to which
Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds, as
applicable, were received by the Master Servicer or Special Servicer for
application to such Mortgage Loan, in each case after the Due Date in the
calendar month preceding such Distribution Date but prior to the Due Date in the
related Collection Period, the amount of interest that would have accrued at the
Net Mortgage Pass-Through Rate for such Mortgage Loan on the amount of such
Principal Prepayment, Insurance Proceeds, Liquidation Proceeds or Condemnation
Proceeds during the period commencing on the date as of which such Principal
Prepayment, Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds,
as applicable, were applied to the unpaid principal balance of the Mortgage Loan
and ending on (and including) the day immediately preceding such Due Date
(without regard to any Prepayment Premium or Yield Maintenance Charge actually
collected).
"Prepayment Premium": Any premium, fee or other additional amount
(other than a Yield Maintenance Charge) paid or payable on a Mortgage Loan or
the [_____] B Loan by a Borrower as the result of a Principal Prepayment
thereon, not otherwise due thereon, in respect of principal or interest, which
is intended to compensate the holder of the related Note for prepayment.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan or
the [_____] B Loan, the rate per annum set forth on Exhibit B-2.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of The Wall Street Journal, Eastern edition (or, if such section or
publication is no longer available, such other comparable publication as
determined by the Trustee in its reasonable discretion) as may be in effect from
time to time, or, if the "Prime Rate" no longer exists, such other comparable
rate (as determined by the Trustee in its reasonable discretion) as may be in
effect from time to time. The Trustee shall notify in writing the Master
Servicer and the Special Servicer with regard to any determination of the Prime
Rate in accordance with the parenthetical in the preceding sentence.
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"Principal Balance Certificate": The [Class A-1], [Class A-2],
[Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class
A-1A], [Class A-J], [Class B], [Class C], [Class D], [Class E], [Class F],
[Class G], [Class H], [Class J], [Class K], [Class L], [Class M], [Class N],
[Class O] and [Class P] Certificates.
"Principal Distribution Amount": For any Distribution Date, an
amount equal to (i) the sum of:
(a) the principal component of all scheduled Monthly Payments (other
than Balloon Payments) due on the Mortgage Loans on or before the related
Due Date (if received or advanced);
(b) the principal component of all Assumed Scheduled Payments due on
or before the related Due Date (if received or advanced) with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment;
(c) the Stated Principal Balance of each Mortgage Loan that was,
during the related Collection Period, repurchased from the Trust Fund in
connection with a Breach or Defect pursuant to Section 2.03, purchased
pursuant to Section 3.18, or purchased from the Trust Fund pursuant to
Section 9.01;
(d) the portion of Unscheduled Payments allocable to principal of
any Mortgage Loan that was liquidated during the related Collection
Period;
(e) the principal component of all Balloon Payments and any other
principal payment on any Mortgage Loan received on or after the Maturity
Date thereof, to the extent received during the related Collection Period;
(f) all other Principal Prepayments on Mortgage Loans received in
the related Collection Period; and
(g) any other full or partial recoveries in respect of principal of
Mortgage Loans, including Insurance Proceeds, Liquidation Proceeds and Net
REO Proceeds received in the related Collection Period (including any
amount related to the Loss of Value Payments to the extent that such
amount was transferred into the Collection Account pursuant to Section
3.06(f) during the related Collection Period),
as reduced by (ii) any (1) Nonrecoverable Advances plus interest on
such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Mortgage Loans or, with respect to
Property Advances, the Loan Combination, in a period during which
such principal collections would have otherwise been included in the
Principal Distribution Amount for such Distribution Date and (2)
Workout-Delayed Reimbursement Amounts that were paid or reimbursed
from principal collections on the Mortgage Loans or, with respect to
Property Advances, the Loan Combination, in a period during which
such principal collections would have otherwise been included in the
Principal Distribution
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Amount for such Distribution Date (provided, that, in the case of
clauses (1) and (2) above, if any of the amounts that were
reimbursed from principal collections on the Mortgage Loans or, with
respect to Property Advances, the Loan Combination, are subsequently
recovered on the related Mortgage Loan or, with respect to Property
Advances, the Loan Combination, such recovery will increase the
Principal Distribution Amount for the Distribution Date related to
the period in which such recovery occurs).
The principal component of the amounts set forth above shall be determined in
accordance with Section 1.02 hereof.
"Principal Prepayment": Any payment of principal made by a Borrower
on a Mortgage Loan or the [_____] B Loan which is received in advance of its
scheduled Due Date and which is not accompanied by an amount of interest
representing the full amount of scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
"Private Global Certificate": Each of the Regulation S Global
Certificates or Rule 144A Global Certificates with respect to the [Class X-C],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O] and [Class P] Certificates if and so long as
such class of Certificates is registered in the name of a nominee of the
Depository.
"Private Placement Memorandum": Means the Private Placement
Memorandum, dated [________], pursuant to which the [Class X-C], [Class E],
[Class F], [Class G], [Class H], [Class J], [Class K], [Class L], [Class M],
[Class N], [Class O] and [Class P] Certificates will be offered for sale.
"Privileged Person": Means a party to this Agreement, a Rating
Agency, a designee of the Depositor (including any financial market publisher),
the initial Controlling Class Representative, each Underwriter and any other
person who delivers to the Trustee in the form attached hereto as Exhibit L
(which form may be provided by the Trustee upon request), a certification that
such person is a Certificateholder, a Certificate Owner of a Certificate or a
prospective purchaser of a Certificate.
"Property Advance": As to any Mortgage Loan or Loan Combination, any
advance made by the Master Servicer, the Special Servicer or the Trustee, as
applicable, in respect of Property Protection Expenses or any expenses incurred
to protect, preserve and enforce the security for a Mortgage Loan or the Loan
Combination or to pay taxes and assessments or insurance premiums with respect
to the related Mortgaged Property, to the extent the making of any such advance
is specifically provided for in this Agreement, including, but not limited to,
as provided in Section 3.04 and Section 3.24, as applicable. Each reference to
the payment or reimbursement of a Property Advance shall be deemed to include,
whether or not specifically referred to, payment or reimbursement of interest
thereon at the Advance Rate from and including the date of the making of such
Advance to and including the date of payment or reimbursement. Notwithstanding
anything to the contrary, "Property Advance" shall not include allocable
overhead of the Master Servicer or the Special Servicer, as applicable, such as
costs for
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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.
"Property Protection Expenses": With respect to any Mortgage Loan or
the [_____] B Loan, any costs and expenses incurred by the Master Servicer or
the Special Servicer pursuant to Sections 3.04, 3.08(a), 3.10(b), 3.10(e),
3.10(f), 3.10(h), 3.10(i), 3.10(k), 3.11, 3.12(e), 3.17(a), 3.17(b), 3.17(c),
3.18(g) or 3.28(a) or indicated herein as being payable as a Property Advance or
as a cost or expense of the Trust Fund (and, in the case of the Loan
Combination, the [_____] B Loan Noteholder but subject to the provisions of
Section 1.02(e)) or the Lower-Tier REMIC, or Upper-Tier REMIC to be paid out of
the Collection Account.
"Prospectus": The Depositor's Prospectus dated [________], as
supplemented by the Prospectus Supplement dated [________], relating to the
offering of the [Class A-1], [Class A-2], [Class A-3], [Class A-4], [Class
A-AB], [Class A-5A], [Class A-5B], [Class A-1A], [Class A-J], [Class B], [Class
C], [Class D] and [Class X-P] Certificates.
"PTCE 95-60": Prohibited Transaction Class Exemption 95-60.
"Qualified Institutional Buyer": A qualified institutional buyer
within the meaning of Rule 144A.
"Qualified Insurer": As used in Section 3.08, (i) an insurance
company or security or bonding company qualified to write the related insurance
policy in the relevant jurisdiction which shall have a rating of "A3" or better
by [Moody's] and an insurance financial strength rating of "A-" or better by
[S&P] and (ii) in the case of the fidelity bond and the errors and omissions
insurance required to be maintained pursuant to Section 3.08(d), shall have a
claims paying ability rated by each Rating Agency no lower than two ratings
categories (without regard to pluses or minuses or numeric qualifications) lower
than the highest rating of any outstanding Class of Certificates from time to
time, but in no event lower than "A2" by [Moody's] (or if such company is not
rated by [Xxxxx'x], is rated at least A:IX by A.M. Best's Key Rating Guide) and
in the case of [S&P], an insurance financial strength rating of "A" or better,
unless in any such case each of the Rating Agencies has confirmed in writing
that obtaining the related insurance from an insurance company that is not rated
by each of the Rating Agencies (subject to the foregoing exceptions) or that has
a lower claims-paying ability than such requirements shall not result, in and of
itself, in a downgrade, qualification or withdrawal of the then-current ratings
by such Rating Agency to any Class of Certificates.
"Qualified Mortgage": A Mortgage Loan that is a "qualified mortgage"
within the meaning of Code Section 860G(a)(3) of the Code (but without regard to
the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage), or any substantially similar successor
provision.
"Qualifying Substitute Mortgage Loan": A mortgage loan which must,
on the date of substitution: (i) have an outstanding Stated Principal Balance,
after application of all scheduled payments of principal and/or interest due
during or prior to the month of substitution, whether or not received, not in
excess of the Stated Principal Balance of the Removed Mortgage Loan as of the
Due Date in the calendar month during which the substitution occurs; (ii) have a
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Mortgage Rate not less than the Mortgage Rate of the Removed Mortgage Loan;
(iii) have the same Due Date as the Removed Mortgage Loan; (iv) accrue interest
on the same basis as the Removed Mortgage Loan (for example, on the basis of a
360-day year and the actual number of days elapsed); (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 Removed Mortgage Loan; (vi) have an
original loan to value ratio not higher than that of the Removed Mortgage Loan
and a current loan to value ratio not higher than the then current loan-to-value
ratio of the Removed Mortgage Loan; (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 that will be delivered as a part of the related
Servicing File; (ix) have an original Debt Service Coverage Ratio of not less
than the original Debt Service Coverage Ratio of the Removed Mortgage Loan and a
current Debt Service Coverage Ratio of not less than the current Debt Service
Coverage Ratio of the Removed Mortgage Loan; (x) be determined by an Opinion of
Counsel (at the 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 that is three years prior to the Rated Final
Distribution Date; (xii) not be substituted for a Removed Mortgage Loan unless
the Trustee has received prior confirmation in writing by each Rating Agency
that such substitution will not in and of itself 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 Mortgage Loan Seller); (xiii) have
been approved by the Controlling Class Representative in its sole discretion;
(xiv) prohibit defeasance within two years after the Closing Date, (xv) not be
substituted for a Removed Mortgage Loan if it would result in the termination of
the REMIC status of the Loan REMIC or either Trust REMIC 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 and (xvi) if the Removed Mortgage Loan is part of Loan Group
2, have the same property type designation as the Removed Mortgage Loan. In the
event that one or more mortgage loans are substituted for one or more Removed
Mortgage Loans, then the amounts described in clause (i) shall be determined on
the basis of aggregate Stated 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; provided that
no individual Mortgage Rate shall be lower than the highest Pass-Through Rate
(that is a fixed rate not subject to a cap equal to the Weighted Average Net
Mortgage Rate) of any Class of Principal Balance Certificates having an
outstanding Certificate Balance. When a Qualified Substitute Mortgage Loan is
substituted for a Removed Mortgage Loan, the 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": The Distribution Date in
[________].
"Rating Agency": means any of [S&P] and [Xxxxx'x].
"Real Property": Land or improvements thereon such as buildings or
other inherently permanent structures thereon (including items that are
structural components of the buildings or structures), in each such case as such
terms are used in the REMIC Provisions.
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"Realized Loss": With respect to any Distribution Date, the amount,
if any, by which (i) the aggregate Certificate Balance of the Principal Balance
Certificates after giving effect to distributions of principal on such
Distribution Date exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Loans in the Mortgage Pool (for purposes of this calculation only, not
giving effect to any reductions of the Stated Principal Balance for principal
payments received on the Mortgage Loans in the Mortgage Pool that were used to
reimburse the Master Servicer or the Trustee from general collections of
principal on the Mortgage Loans for Workout-Delayed Reimbursement Amounts, to
the extent such Workout-Delayed Reimbursement Amounts are not otherwise
determined to be Nonrecoverable Advances) immediately following the
Determination Date preceding such Distribution Date.
"Reassignment of Assignment of Leases, Rents and Profits": As
defined in Section 2.0l(a)(viii).
"Reconciliation of Funds Report": A report prepared by the Trustee
substantially in the form of, and containing the information called for in, the
downloadable form of the "Reconciliation of Funds Report" available as of the
Closing Date on the CMSA Website, or such other final form for the presentation
of such information and containing such additional information as may from time
to time be promulgated as recommended by the CMSA for commercial mortgage
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the form of the "Reconciliation
of Funds Report" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Trustee, the Master Servicer or the Special
Servicer, as applicable.
"Record Date": With respect to each Distribution Date, the close of
business on the last day of the calendar month preceding the month in which such
Distribution Date occurs or, if such day is not a Business Day, the preceding
Business Day; provided, however, that with respect to the Distribution Date
occurring in [________], the Record Date will be the Closing Date.
"Regular Certificates": The [Class A-1], [Class A-2], [Class A-3],
[Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A], [Class
X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class E],
[Class F], [Class G], [Class H], [Class J], [Class K], [Class L], [Class M],
[Class N], [Class O] and [Class P] Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Red. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
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"Regulation S Global Certificate": Each of the [Class E], [Class F],
[Class G], [Class H], [Class J], [Class K], [Class L], [Class M], [Class N],
[Class O] and [Class P] Certificates issued as such on the Closing Date.
"Regulation S Investor": With respect to a transferee of an interest
in a Regulation S Global Certificate, a transferee that acquires such interest
pursuant to Regulation S.
"Regulation S Transfer Certificate": As defined in Section
5.02(c)(i)(B).
"Relevant Servicing Criteria": The Servicing Criteria applicable to
each Reporting Servicer (as set forth, with respect to the Servicer, the Special
Servicer, the Paying Agent and the Trustee, on Schedule III attached hereto).
For clarification purposes, multiple Reporting Servicers can have responsibility
for the same Relevant Servicing Criteria.
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code and the REMIC Provisions.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Section
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations (including any applicable proposed regulations) and
rulings promulgated thereunder, as the foregoing may be in effect from time to
time.
"Removed Mortgage Loan": A Mortgage Loan which is repurchased from
the Trust Fund pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code, which income,
subject to the terms and conditions of that Section of the Code in its present
form, does not include:
(a) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such
REO Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts or
sales and otherwise constitutes Rents from Real Property);
(b) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined
in accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(c) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(d) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar class in the same geographic market as such REO
Property within the meaning of Treasury
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Regulations Section 1.856-4(b)(1) (whether or not such charges are
separately stated); and
(e) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO
Property and, for any taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or accrued under, or in
connection with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Loan": Any Mortgage Loan or the Loan Combination as to which
the related Mortgaged Property has become an REO Property.
"REO Proceeds": With respect to any REO Property and the related REO
Loan, all revenues received by the Special Servicer with respect to such REO
Property or REO Loan which do not constitute Liquidation Proceeds.
"REO Property": A Mortgaged Property, title to which has been
acquired by the Special Servicer on behalf of the Trust Fund through
foreclosure, deed in lieu of foreclosure or otherwise.
"REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be promulgated as recommended by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "REO Status Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"Replacement Mortgage Loan": Any Qualifying Substitute Mortgage Loan
that is substituted for one or more Removed Mortgage Loans.
"Reporting Servicer": The Master Servicer, the Special Servicer, and
each Servicing Function Participant (including the Paying Agent, the Trustee and
each Sub-Servicer), as the case may be.
"Repurchase Price": With respect to any Mortgage Loan to be
repurchased or purchased pursuant to Sections 2.03(d) or 9.01, or any Specially
Serviced Loan or any REO Loan to be sold pursuant to Section 3.18, an amount,
calculated by the Master Servicer or the Special Servicer, as applicable, equal
to:
(a) the outstanding principal balance of such Mortgage Loan as of
the date of purchase; plus
(b) 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 month of purchase; plus
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(c) all related unreimbursed Property Advances plus accrued and
unpaid interest on related Advances at the Advance Rate, and unpaid
Special Servicing Fees and Workout Fees allocable to such Mortgage Loan;
plus
(d) any Liquidation Fee due pursuant to Section 3.12 hereunder
allocable to such Mortgage Loan; plus
(e) if such Mortgage Loan (or related REO loan) is being purchased
by the Mortgage Loan Seller pursuant to Section 2.03(d), to the extent not
otherwise included in the amount described in clause (c) of this
definition, all reasonable out-of-pocket expenses reasonably incurred or
to be incurred by the Master 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 duplication,
any amounts previously reimbursed from any Collection Account or the Loan
Combination Collection Account, as applicable, plus accrued and unpaid
interest thereon at the Advance Rate, to the extent payable to the Master
Servicer, the Special Servicer or the Trustee.
For purposes of this Agreement, the "Repurchase Price" in respect of
a sale of an REO Property securing the Loan Combination, the term Mortgage Loan
shall be construed to include the B Loan.
"Request for Release": A request for a release signed by a Servicing
Officer, substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan or Loan
Combination, reserve accounts, if any, established pursuant to the Mortgage or
the Loan Agreement and any Escrow Account. Any Reserve Account may be a
sub-account of a related Cash Collateral Account. Any Reserve Account shall be
beneficially owned for federal income tax purposes by the Person who is entitled
to receive the reinvestment income or gain thereon in accordance with the terms
and provisions of the related Mortgage Loan and Section 3.07, which Person shall
be taxed on all reinvestment income or gain thereon. The Master Servicer shall
be permitted to make withdrawals therefrom for deposit into the related Cash
Collateral Account, if applicable, or its Collection Account or for the purposes
set forth under the related Mortgage Loan or Loan Combination.
"Resolution Extension Period" shall mean:
(a) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(b) for purposes of remediating a Material Defect with respect to
any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan 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 Mortgage Loan Seller's receipt
of
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written notice from the Master 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;
(c) for purposes of remediating a Material Defect with respect to
any Mortgage Loan that is a not a Specially Serviced 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 earlier of
the end of such Initial Resolution Period and the Mortgage Loan Seller's
receipt of written notice from the Master Servicer or the Special Servicer
of the occurrence of such Servicing Transfer Event; and
(d) for purposes of remediating a Material Defect with respect to
any Mortgage Loan that is a Specially Serviced Loan as of the commencement
of the applicable Initial Resolution Period, zero (-0-) days; provided
that, if the Mortgage Loan Seller did not receive written notice from the
Master 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 shall be deemed to have occurred during
such Initial Resolution Period and clause (c) of this definition will be
deemed to apply.
The Mortgage Loan Seller shall have an additional 90 days beyond any
cure period specified above to cure such Material Defect or Material Beach;
provided that, the Mortgage Loan Seller has commenced and is diligently
proceeding with the cure of such Material Defect or Material Breach and such
failure to cure is solely the result of a delay in the return of documents from
the local filing or recording authorities.
"Responsible Officer": Any officer of the Trustee assigned to the
Corporate Trust Office (and, in the event that the Trustee is the Certificate
Registrar or the Paying Agent, of the Certificate Registrar or the Paying Agent,
as applicable) with direct responsibility for the administration of this
Agreement and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject, and, in the case of any certification
required to be signed by a Responsible Officer, such an officer whose name and
specimen signature appears on a list of corporate trust officers furnished to
the Master Servicer by the Trustee, as such list may from time to time be
amended.
"Restricted Certificate": As defined in Section 5.02(k).
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the Initial Purchaser and any other distributor
(as defined in Regulation S) of the Certificates and (b) the Closing Date.
"Rule 144A": Rule 144A under the Act.
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"Rule 144A Global Certificate": Each of the [Class X-C], [Class E],
[Class F], [Class G], [Class H], [Class J], [Class K], [Class L], [Class M],
[Class N], [Class O] and [Class P] Certificates issued as such on the Closing
Date.
"[S&P]": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest.
"Securities Legend": With respect to each Residual Certificate or
any Individual Certificate, the legend set forth in, and substantially in the
form of, Exhibit F hereto.
"Service(s)(ing)": In accordance with Regulation AB, the act of
servicing and administering the Mortgage Loans or any other assets of the Trust
by an entity that meets the definition of "servicer" set forth in Item 1101 of
Regulation AB and is subject to the disclosure requirements set forth in Item
1108 of Regulation AB.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB of the 1933 Act.
"Servicing Compensation": With respect to any Collection Period, the
related Servicing Fee, Net Prepayment Interest Excess, if any, and any other
fees, charges or other amounts payable to the Master Servicer under this
Agreement for such period.
"Servicing Fee": With respect to each Mortgage Loan but excluding
the B Loan, and for any Distribution Date, an amount per Interest Accrual Period
equal to the product of (i) the respective Servicing Fee Rate and (ii) the
Stated Principal Balance of such Mortgage Loan as of the Due Date in the
immediately preceding Collection Period (without giving effect to payments of
principal on such Mortgage Loan or the [_____] B Loan on such Due Date). The
Servicing Fee shall be calculated in accordance with the provisions of Section
1.02(a). For the avoidance of doubt, with respect to any B Loan, no Servicing
Fee shall accrue on the Stated Principal Balance thereof.
"Servicing Fee Rate": With respect to each Mortgage Loan but
excluding the B Loan, the sum of the Master Servicing Fee Rate and the related
Primary Servicing Fee Rate, if any, which rates per annum are set forth on
Exhibit B-2 to this Agreement.
"Servicing File": As defined in the related Mortgage Loan Purchase
Agreement.
"Servicing Function Participant": Any Person, other than the Master
Servicer and the Special Servicer, that, within the meaning of Item 1122 of
Regulation AB, is performing activities addressed by the Servicing Criteria,
unless such Person's activities relate only to 5% or less of the Mortgage Loans
(based on their principal balance).
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer, as applicable, involved in, or responsible for, the
administration and servicing of the Mortgage Loans or, [_____] B Loan, or this
Agreement and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's or employee's knowledge
of and familiarity with the particular subject, and, in the case of any
certification required to be signed by a Servicing Officer, such an officer or
employee whose
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name and specimen signature appears on a list of servicing officers furnished to
the Trustee by the Master Servicer or the Special Servicer, as applicable, as
such list may from time to time be amended.
"Servicing Standard": With respect to any Mortgage Loan, the General
Servicing Standard.
"Servicing Transfer Event": An event specified in the definition of
Specially Serviced Loan.
"Similar Law": As defined in Section 5.02(k) hereof.
"Small Loan Appraisal Estimate": With respect to any Mortgage Loan
having a Stated Principal Balance of less than $2,000,000, the Special
Servicer's good faith estimate of the value of such Mortgage Loan, as certified
to the Master Servicer by the Special Servicer.
"Sole Certificateholder": Any Holder (or Holders, provided they act
in unanimity) holding 100% of the then outstanding [Class X-C], [Class X-P],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O] and [Class P] Certificates or an assignment of
the voting rights thereof; provided, however, that the Certificate Balances of
the [Class A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class
A-5A], [Class A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class
D] Certificates have been reduced to zero.
"Special Servicer": [________], a [_____] corporation, or its
successor in interest, or any successor special servicer appointed as provided
in Section 3.25, including without limitation any successor special servicer
appointed with respect to the Loan Combination pursuant to Section 3.22. In the
event that the Master Servicer is also the Special Servicer hereunder, and the
Master Servicer is terminated or resigns as the Master Servicer hereunder, that
Servicer shall be terminated as the Special Servicer hereunder. In the event
there is more than one Special Servicer administering Specially Serviced Loans
hereunder, each reference in this Agreement to the "Special Servicer" shall be
construed to apply to the Special Servicer then servicing that particular
Mortgage Loan or Loan Combination.
"Special Servicer Backup Certification": As defined in Section
3.22(g).
"Special Servicer Event of Default": As defined in Section 7.01(b).
"Special Servicing Compensation": With respect to any Mortgage Loan,
any of the Special Servicing Fee, Workout Fee, Liquidation Fee and any other
fees, charges or other amounts which shall be due to the Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced
Loan (or REO Loan) for each calendar month (or portion thereof), the fraction of
the Special Servicing Fee Rate applicable to such month, or portion thereof
(determined using the same interest accrual methodology that is applied with
respect to the Mortgage Rate for such Mortgage Loan for such month) multiplied
by the Stated Principal Balance of such Specially Serviced Loan as of the Due
Date (without giving effect to all payments of principal on such Specially
Serviced Loan or REO
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Loan on such Due Date) in the Collection Period prior to
such Distribution Date (or, in the event that a Principal Prepayment in full or
an event described in clauses (i)-(vii) under the definition of Liquidation
Proceeds shall occur with respect to any such Specially Serviced Loan or REO
Loan on a date that is not a Due Date, on the basis of the actual number of days
to elapse from and including the most recently preceding related Due Date to but
excluding the date of such Principal Prepayment or Liquidation Proceeds event in
a month consisting of 30 days).
"Special Servicing Fee Rate": A rate equal to [__]% per annum.
"Specially Serviced Loan": Subject to Section 3.26, any Mortgage
Loan or Loan Combination with respect to which:
(a) either (i) with respect to such Mortgage Loan or the [_____] B
Loan other than a Balloon Loan, a payment default shall have occurred on
such Mortgage Loan or the [_____] B Loan at its Maturity Date or, if the
Maturity Date of such Mortgage Loan or the [_____] B Loan has been
extended in accordance herewith, a payment default occurs on such Mortgage
Loan or the [_____] B Loan at its extended Maturity Date or (ii) with
respect to a Balloon Loan, a payment default shall have occurred with
respect to the related Balloon Payment; provided, however, that if (a) the
related Borrower is diligently seeking a refinancing commitment (and
delivers a statement to that effect to the Special Servicer and the
Controlling Class Representative within [30] days after such default), (b)
the related Borrower continues to make its Assumed Scheduled Payment, (c),
no other Servicing Transfer Event shall have occurred with respect to such
Mortgage Loan or the [_____] B Loan and (d) the Controlling Class
Representative consents, a Servicing Transfer Event will not occur until
[60] days beyond the related Maturity Date; and provided, further, if the
related Borrower delivers to the Special Servicer and the Controlling
Class Representative, on or before the [60]th day after the related
Maturity Date, a refinancing commitment reasonably acceptable to the
Special Servicer and the Controlling Class Representative, and such
Borrower continues to make its Assumed Scheduled Payments (and no other
Servicing Transfer Event shall have occurred with respect to that
Mortgage), a Servicing Transfer Event will not occur until the earlier of
(1) [120] days beyond the related Maturity Date and (2) the termination of
the refinancing commitment;
(b) any Monthly Payment (other than a Balloon Payment) is 60 days or
more delinquent;
(c) the date upon which the Master Servicer or Special Servicer
(with the consent of the Controlling Class Representative) determines that
a payment default or any other default under the applicable Loan Documents
that (with respect to such other default) would materially impair the
value of the Mortgaged Property as security for the Mortgage Loan and, if
applicable, [_____] B Loan or otherwise would materially adversely affect
the interests of Certificateholders and, if applicable, the holder of the
related [_____] B Loan and would continue unremedied beyond the applicable
grace period under the terms of the related Loan Documents (or, if no
grace period is specified for [60] days and provided that a default that
would give rise to an acceleration right without any grace period will be
deemed to have a grace period equal to zero) is imminent and is not likely
to be cured by the related Borrower within [60] days or, except
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as provided in clause (a)(ii) above, in the case of a Balloon Payment, for
at least [30] days;
(d) the date upon which the related Borrower has become a subject of
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, provided
that if such decree or order has been dismissed, discharged or stayed
within [60] days thereafter, such Mortgage Loan or Loan Combination shall
no longer be a Specially Serviced Loan and no Special Servicing Fees shall
be payable with respect thereto;
(e) the date on which the related Borrower consents 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 Borrower of or relating to all or
substantially all of its property;
(f) the date on which related Borrower admits in writing its
inability to pay its debts generally as they become due, files a petition
to take advantage of any applicable insolvency or reorganization statute,
makes an assignment for the benefit of its creditors, or voluntarily
suspends payment of its obligations;
(g) a default, of which the Master Servicer or Special Servicer has
notice (other than a failure by such related Borrower to pay principal or
interest) and which in the opinion of the Master Servicer or Special
Servicer (in the case of the Special Servicer, with the consent of the
Controlling Class Representative) materially and adversely affects the
interests of the Certificateholders or any holder of the [_____] B Loan,
if applicable, occurs and remains unremedied for the applicable grace
period specified in the Loan Documents for such Mortgage Loan or Loan
Combination (or if no grace period is specified for those defaults which
are capable of cure, [60] days); or
(h) the date of which the Master Servicer or Special Servicer
receives notice of the foreclosure or proposed foreclosure of any lien on
the related Mortgaged Property;
provided, however, that such Mortgage Loan or Loan Combination will cease to be
a Specially Serviced Loan (each, a "Corrected Mortgage Loan") (i) with respect
to the circumstances described in clauses (a) and (b) above, when the related
Borrower thereunder has brought such Mortgage Loan or Loan Combination current
and thereafter made three consecutive full and timely Monthly Payments,
including pursuant to any workout of such Mortgage Loan or Loan Combination,
(ii) with respect to the circumstances described in clause (c), (d), (e), (f)
and (h) above, when such circumstances cease to exist in the good faith judgment
of the Special Servicer, and (iii) with respect to the circumstances described
in clause (g) above, when such default is cured; provided, in each case, that at
that time no circumstance exists (as described above) that would cause such
Mortgage Loan or Loan Combination to continue to be characterized as a Specially
Serviced Loan, provided, further, that a Servicing Transfer Event shall not
exist with respect to the [________] Loan Combination if a cure event is being
exercised in accordance with the related Co-Lender Agreement.
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If a Servicing Transfer Event exists with respect to any Mortgage
Loan included in the Loan Combination, then it will also be deemed to exist with
respect to the related [_____] B Loan, and vice versa. If any Mortgage Loan in a
group of Cross-Collateralized Mortgage Loans becomes a Specially Serviced Loan,
each other Mortgage Loan in such group of Cross-Collateralized Mortgage Loans
shall also become a Specially Serviced Loan.
"Startup Day": In the case of the Upper-Tier REMIC and Lower-Tier
REMIC, the day designated as such pursuant to Section 2.06(a) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan or
Loan Combination, on any date of determination, the principal balance as of the
Cut-off Date of such Mortgage Loan or Loan Combination (or in the case of a
Replacement Mortgage Loan, the outstanding principal balance as of the related
date of substitution and after application of all scheduled payments of
principal and interest due on or before the related Due Date in the month of
substitution, whether or not received), as reduced on each Distribution Date (to
not less than zero) by (i) all payments (or P&I Advances in lieu thereof) of,
and all other collections allocated as provided in Section 1.02 to, principal of
or with respect to such Mortgage Loan or Loan Combination that are distributed
to Certificateholders or the [_____] B Loan Noteholder on such Distribution Date
or applied to any other payments required under this Agreement on or prior to
such date of determination, and (ii) any principal forgiven by the Special
Servicer and other principal losses realized in respect of such Mortgage Loan or
Loan Combination during the related Collection Period.
A Mortgage Loan or any related 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 Liquidation Proceeds, if any, are to be (or, if no
such Liquidation Proceeds are received, would have been) distributed to
Certificateholders. The Stated Principal Balance of any Mortgage Loan or Loan
Combination with respect to which the Master Servicer or Special Servicer has
made a Final Recovery Determination is zero.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
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 3.01(c).
"Substitution Shortfall Amount": In connection with the substitution
of one or more Replacement Mortgage Loans for one or more Removed Mortgage
Loans, the amount, if any, by which the Repurchase Price or aggregate Repurchase
Price, as the case may be, for such Removed Mortgage Loan(s) exceeds the initial
Stated Principal Balance or aggregate initial Stated Principal Balance, as the
case may be, of such Replacement Mortgage Loan(s).
"Tax Returns": The federal income tax returns on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed by
the Trustee on behalf of each of the Upper-Tier REMIC, the Lower-Tier REMIC and
the Loan REMIC due to its classification as a REMIC
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under the REMIC Provisions and the federal income tax return to be filed by the
Trustee on behalf of the Grantor Trust due to its classification as a grantor
trust under subpart E, Part I of subchapter J of the Code, together with any and
all other information, reports or returns that may be required to be furnished
to the Certificateholders or filed with the IRS or any other governmental taxing
authority under any applicable provisions of federal law or Applicable State and
Local Tax Law.
"Terminated Party": As defined in Section 7.01(c).
"Terminating Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.01.
"Third Party Appraiser": As defined in Section 3.18(e) of this
Agreement.
"Total Loan Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA
Total Loan Report" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"Transfer": Any direct or indirect transfer or other form of
assignment of any Ownership Interest in a [Class R] or [Class LR] Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Trust" or "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) any Assignments of Leases, Rents and Profits and any
security agreements (to the extent of the Trust Fund's interest therein); (vi)
any indemnities or guaranties given as additional security for any Mortgage
Loans (to the extent of the Trust Fund's interest therein); (vii) all assets
deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts,
and Reserve Accounts (to the extent of the Trust Fund's interest therein),
(viii) Loss of Value Reserve Fund amounts on deposit in the Collection Account
attributable to the Mortgage Loans as identified on the Trust Ledger, the Loan
Combination Collection Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of the [_____] B Loan Noteholder
therein), the Distribution Accounts, any Excess Liquidation Proceeds Account (to
the extent of the Trust Fund's interest therein and specifically excluding any
interest of the [_____] B Loan Noteholder therein), the Interest Reserve
Account, any REO Account (to the extent of the Trust Fund's interest therein and
specifically excluding any interest of the [_____] B Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity
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agreements relating to the Mortgaged Properties; (x) all insurance policies with
respect to the Mortgage Loans and the Mortgaged Properties (to the extent of the
Trust Fund's interest therein); (xi) the rights and remedies under the Mortgage
Loan Purchase Agreements relating to document delivery requirements with respect
to the Mortgage Loans and the representations and warranties of the Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests, the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
and (xiii) 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).
"Trust Ledger": Amounts deposited in any Collection Account
attributable to the Mortgage Loans, which are maintained pursuant to Section
3.05(a) and held on behalf of the Trustee on behalf of the Certificateholders.
"Trust REMICs": The Lower-Tier REMIC and the Upper-Tier REMIC.
"Trustee": [________], a [________], in its capacity as Trustee, or
its successor in interest, or any successor Trustee appointed as herein
provided.
"Trustee Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) the Trustee Fee Rate multiplied by (ii) the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the immediately preceding Collection Period
(without giving effect to payments of principal on such Mortgage Loan on such
Due Date). The Trustee Fee shall be calculated in accordance with the provisions
of Section 1.02(a).
"Trustee Fee Rate": A rate equal to [__]% per annum.
"Underwriters": [________] or their respective successors in
interest.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to Section 3.06(b) or Section
3.06(c), as applicable, but that has not been recovered from the related
Borrower or otherwise from collections on or the proceeds of the Mortgage Loan
or the Loan Combination or REO Property in respect of which the Advance was
made.
"Unscheduled Payments": With respect to a Mortgage Loan and a
Collection Period, all Net Liquidation Proceeds, Net Condemnation Proceeds and
Net Insurance Proceeds payable under such Mortgage Loan, the Repurchase Price of
any Mortgage Loan that is repurchased or purchased pursuant to Sections 2.03(d),
3.18 or 9.01, the Substitution Shortfall Amount with respect to any substitution
pursuant to Section 2.03(f) and any other payments under or with respect to such
Mortgage Loan not scheduled to be made, including Principal Prepayments received
by the Master Servicer (but excluding Prepayment Premiums or Yield Maintenance
Charges, if any) during such Collection Period.
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"Updated Appraisal": An Appraisal of a Mortgaged Property or REO
Property, as the case may be, conducted subsequent to any appraisal performed on
or prior to the Cut-off Date and in accordance with Appraisal Institute
standards, the costs of which shall be paid as a Property Advance by the Master
Servicer or, on an emergency basis in accordance with Section 3.24(b), the
Special Servicer, as applicable. Updated Appraisals shall be conducted by an MAI
appraiser selected by the Special Servicer.
"Updated Valuation": With respect to a Mortgage Loan having a Stated
Principal Balance of $2,000,000 or higher, an Updated Appraisal. With respect to
a Mortgage Loan having a Stated Principal Balance of less than $2,000,000, an
updated Small Loan Appraisal Estimate.
"Upper-Tier Distribution Account": The segregated trust account or
sub-account created and maintained by the Trustee pursuant to Section 3.05(g),
which shall be entitled "[________], as Trustee, in trust for Holders of
Deutsche Mortgage & Asset Receiving Corporation, COMM 200[_]-[_] Commercial
Mortgage Pass-Through Certificates, Upper-Tier Distribution Account" and which
must be an Eligible Account or a subaccount of an Eligible Account.
"Upper-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Lower-Tier Regular Interests and amounts held from time to
time in the Upper-Tier Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation, partnership (except to the extent provided in applicable Treasury
Regulations), or other entity created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust, and one or
more such U.S. Persons have the authority to control all substantial decisions
of such trust (or, to the extent provided in applicable Treasury Regulations,
certain trusts in existence on August 20, 1996 which have elected to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificateholder or Class of
Certificateholders. At all times during the term of this Agreement, the
percentage of Voting Rights assigned to each Class shall be: (a) [98]% to be
allocated among the Certificateholders of the respective Classes of Principal
Balance Certificates in proportion to the Certificate Balances of their
Certificates, (b) [2]% to be allocated among the Certificateholders of the
[Class X] Certificates (allocated to the [Class X-C] and [Class X-P]
Certificates on a pro rata basis based on their respective outstanding Notional
Amounts at the time of determination), and (c) [0]%, in the case of the [Class
R] and [Class LR] Certificates. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests in such Class evidenced by their
respective Certificates.
"Watch List": For any Determination Date, a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Servicer Watch List"
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available as of the Closing Date on the CMSA Website, or in such other form for
the presentation of such information and containing such additional information
as may from time to time be promulgated as recommended 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 "Servicer Watch List" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to
any Distribution Date, a per annum rate equal to the fraction (expressed as a
percentage) the numerator of which is the sum for all Mortgage Loans of the
product of (i) the Net Mortgage Pass-Through Rate for each such Mortgage Loan as
of the immediately preceding Distribution Date and (ii) the Stated Principal
Balance of each such Mortgage Loan, and the denominator of which is the sum of
the Stated Principal Balances of all such Mortgage Loans as of the immediately
preceding Distribution Date;
"Withheld Amount": With respect to each Distribution Date occurring
in (i) January of each calendar year that is not a leap year and (ii) February
of each calendar year, unless such Distribution Date is the final Distribution
Date, an amount equal to one day's interest at the Mortgage Rate as of the Due
Date (less the Servicing Fee Rate) on the respective Stated Principal Balance of
(X) each Mortgage Loan that does not accrue interest on the basis of a 360-day
year of 12 30-day months; and (Y) the [________] Mortgage Loan as of the Due
Date in the month preceding the month in which such Distribution Date occurs, to
the extent that a Monthly Payment or a P&I Advance is made in respect thereof.
The Withheld Amount for each applicable Distribution Date for the [________]
Loan will be equal to 1/30th of the interest accrued in respect of the
immediately preceding Due Date. The Withheld Amount for each applicable
Distribution Date for each Mortgage Loan that does not accrue interest on a
30/360 basis will be equal to 1/31 of the interest accrued in respect of the
immediately preceding Due Date, to the extent a Monthly Payment or P&I Advance
is made in respect thereof.
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan or, with respect to Property Advances, the Loan Combination, the
amount of any Advance made with respect to such Mortgage Loan or Loan
Combination on or before the date such Mortgage Loan or Loan Combination becomes
(or, but for the making of three monthly payments under its modified terms,
would then constitute) a Corrected Mortgage Loan, together with (to the extent
accrued and unpaid) interest on such Advances, to the extent that (i) such
Advance is not reimbursed to the Person who made such Advance on or before the
date, if any, on which such Mortgage Loan or Loan Combination, as the case may
be, becomes a Corrected Mortgage Loan and (ii) the amount of such Advance
becomes an obligation of the related Borrower to pay such amount under the terms
of the modified Loan Documents.
"Workout Fee": An amount equal to 1.0% of each collection of
interest and principal (including scheduled payments, prepayments (provided that
a repurchase or substitution by the Mortgage Loan Seller of a Mortgage Loan due
to a Material Defect or a Material Breach shall not be considered a prepayment
for purposes of this definition), Balloon Payments and payments at maturity)
received on a Specially Serviced Loan that becomes a Corrected Mortgage Loan for
so long as it remains a Corrected Mortgage Loan, pursuant to Section 3.12(c).
For the avoidance of doubt, the Mortgage Loan Seller will be required to pay a
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Workout Fee in connection with a repurchase or substitution to the extent the
Special Servicer was entitled to such a fee and such fee was unpaid immediately
prior to such repurchase or substitution or was previously paid by the Trust and
was not reimbursed by the related Borrower immediately prior to such repurchase
or substitution.
"Yield Maintenance Charge": With respect to any Mortgage Loan or
Loan Combination, the yield maintenance charge set forth in the related 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, the following provisions shall apply:
(a) All calculations of interest with respect to the Mortgage Loans
and [_____] B Loan (other than the Actual/360 Mortgage Loans) and of Advances in
respect thereof provided for herein shall be made on the basis of a 360-day year
consisting of twelve 30-day months. All calculations of interest with respect to
the Actual/360 Mortgage Loans and of Advances provided in respect thereof
provided for herein shall be made as set forth in such Mortgage Loans and, if
applicable, [_____] B Loan, with respect to the calculation of the related
Mortgage Rate. The Servicing Fee and the Trustee Fee for each Mortgage Loan or
Loan Combination, as applicable, shall accrue on the same basis as interest
accrues on such Mortgage Loan or Loan Combination, as applicable.
(b) Any Mortgage Loan or Loan Combination payment is deemed to be
received on the date such payment is actually received by the Master Servicer or
the Trustee; provided, however, that for purposes of calculating distributions
on the Certificates, Principal Prepayments with respect to any Mortgage Loan,
Loan Combination are deemed to be received on the date they are applied in
accordance with Section 3.01(b) to reduce the Stated Principal Balance of such
Mortgage Loan or Loan Combination on which interest accrues.
(c) Except as otherwise provided in the related Loan Documents or
Co-Lender Agreement, any amounts received in respect of a Mortgage Loan or Loan
Combination as to which a default has occurred and is continuing in excess of
Monthly Payments shall be applied to Default Interest and other amounts due on
such Mortgage Loan or Loan Combination prior to the application to late fees.
(d) Allocations of payments between a Mortgage Loan and the related
[_____] B Loan in the Loan Combination shall be made in accordance with the
related Co-Lender Agreement.
(e) If an expense under this Agreement relates in the reasonable
judgment of the Master Servicer, the Special Servicer, the Trustee or the Paying
Agent, as applicable, primarily to the administration of the Trust Fund, any
REMIC or the Grantor Trust or to any determination respecting the amount,
payment or avoidance of any tax under the REMIC Provisions or the actual payment
of any REMIC tax or expense, or Grantor Trust tax or expense or this Agreement
states that any expense is solely "an expense of the Trust Fund" or words of
similar import, then such expense shall not be allocated to, deducted or
reimbursed from, or
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otherwise charged against the [_____] B Loan Noteholder and such [_____] B Loan
Noteholder shall not suffer any adverse consequences as a result of the payment
of such expense.
(f) All amounts collected on any Mortgage Loan or Loan Combination
in the form of payments from the related Borrower, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds shall be applied to amounts due
and owing under the related Note and Mortgage (including, without limitation,
for principal and accrued and unpaid interest) in accordance with the express
provisions of the related Note and Mortgage (and, with respect to the Loan
Combination, the related Co-Lender Agreement) and, in the absence of such
express provisions, shall be applied: first, as a recovery of principal then due
and owing, in an amount equal to the Workout-Delayed Reimbursement Amounts or
Nonrecoverable Advances, in each case, that were paid from collections on the
Mortgage Loans or the Loan Combination, as applicable, and resulted in principal
distributed to the Certificateholders being reduced as a result of clause (ii)
in the definition of "Principal Distribution Amount," "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal Distribution Amount"; second, as
a recovery of accrued and unpaid interest on such Mortgage Loan or Loan
Combination, as applicable, at the related Mortgage Rate in effect from time to
time to but not including the Due Date in the related Collection Period of
receipt; third, as a recovery of any remaining principal of such Mortgage Loan
or Loan Combination including by reason of acceleration of the Mortgage Loan or
the Loan Combination following a default thereunder (or, if any Liquidation
Proceeds are received upon the liquidation of such Mortgage Loan or the Loan
Combination, as a recovery of principal to the extent of its entire remaining
Stated Principal Balance) or if the related Co-Lender Agreement, if any, so
requires; fourth, in accordance with the Servicing Standard, as a recovery of
any Penalty Charges, Prepayment Premiums and Yield Maintenance Charges; and
fifth, as a recovery of any other amounts then due and owing under such Mortgage
Loan or Loan Combination, as applicable. Notwithstanding the preceding, such
provisions shall not be deemed to affect the priority of distributions of
payments set forth in the related Co-Lender Agreement. To the extent that such
amounts are paid by a party other than a Borrower, unless otherwise specified in
this Agreement, 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
Proceeds, Condemnation Proceeds or Liquidation Proceeds) and then paid by the
Borrower under the related Mortgage Loan and Loan Combination, as applicable, in
accordance with the second preceding sentence. Amounts collected on any REO Loan
shall be deemed to be applied as provided in Section 1.02(g).
(g) Workout-Delayed Reimbursement Amounts and Nonrecoverable
Advances with respect to an REO Loan, in each case, that were paid from
collections on the Mortgage Loans or the Loan Combination, as applicable, and
resulted in principal distributed to the Certificateholders being reduced as a
result of clause (ii) in the definition of "Principal Distribution Amount" shall
be deemed outstanding until recovered. Collections in respect of each REO Loan
(exclusive of the amounts to be applied to the payment of, or to be reimbursed
to the Master 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, to principal, in an amount equal to the Workout-Delayed
Reimbursement Amounts and Nonrecoverable Advances with respect to such REO Loan,
in each case, that were paid from collections on the Mortgage Loans or the Loan
Combination, as applicable, and resulted in principal distributed to the
Certificateholders being reduced as a result of clause (ii) in the definition of
"Principal
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Distribution Amount"; second, as a recovery of accrued and unpaid interest on
such REO Loan at the related Mortgage Rate in effect from time to time to, but
not including, the Due Date in the related Collection Period of receipt; third,
as a recovery of any remaining principal of such REO Loan to the extent of its
entire Stated Principal Balance; and fourth, in accordance with the Servicing
Standard, as a recovery of any other amounts due and owing in respect of such
REO Loan, including, without limitation, (i) Penalty Charges, (ii) Yield
Maintenance Charges and (iii) any other amounts, in that order. With respect to
the Loan Combination, the foregoing shall be subject to the terms of the related
Co-Lender Agreement.
Section 1.03 Certain Constructions. For purposes of this Agreement,
references to the most or next most subordinate Class of Certificates
outstanding at any time shall mean the most or next most subordinate Class of
Certificates then outstanding as among the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class A-J], [Class B], [Class C], [Class D], [Class E], [Class F], [Class G],
[Class H], [Class J], [Class K], [Class L], [Class M], [Class N], [Class O] and
[Class P] Certificates. For such purposes, the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B] and [Class A-1A]
Certificates collectively shall be considered to be one Class. For purposes of
this Agreement, each Class of Certificates, other than the [Class LR] and [Class
R] Certificates, shall be deemed to be outstanding only to the extent its
respective Certificate Balance has not been reduced to zero. For purposes of
this Agreement, the [Class R] and [Class LR] Certificates shall be outstanding
so long as the Trust Fund has not been terminated pursuant to Section 9.01 or
any other Class of Certificates remains outstanding. For purposes of this
Agreement, each of the [Class X-C] and [Class X-P] Certificates shall be deemed
to be outstanding until its respective Notional Balance has been reduced to
zero.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans; Assignment of Mortgage
Loan Purchase Agreements. (a) The Depositor, concurrently with the execution and
delivery hereof, does hereby establish a trust designated as "COMM 200[_]-[_]
Mortgage Trust," appoint the Trustee as trustee of the Trust Fund and sell,
transfer, assign, set over and otherwise convey to the Trustee without recourse
(except to the extent herein provided) all the right, title and interest of the
Depositor in and to the Mortgage Loans, including all rights to payment in
respect thereof, except as set forth below, and any security interest thereunder
(whether in real or personal property and whether tangible or intangible) in
favor of the Depositor, and a security interest in all Reserve Accounts,
Lock-Box Accounts, Cash Collateral Accounts and all other assets to the extent
included or to be included in the Trust Fund for the benefit of the
Certificateholders and the [_____] B Loan Noteholder. Such transfer and
assignment includes all interest and principal due on or with respect to the
Mortgage Loans after the Cut-off Date and in a case of a Mortgage Loan included
in the Loan Combination, is subject to the related Co-Lender Agreement. In
connection with such transfer and assignment, the Depositor shall make a cash
deposit to the Collection Account in an amount equal to the Interest Deposit
Amount. The Depositor, concurrently with the execution and delivery hereof, does
also hereby transfer, assign, set over and otherwise convey to the Trustee
without recourse (except to the extent provided herein) all
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the right, title and interest of the Depositor in, to and under the Mortgage
Loan Purchase Agreements as provided therein (excluding the representations,
warranties and covenants in favor of the Depositor set forth in clauses (viii)
and (ix) of Section 4(b) of each Mortgage Loan Purchaser Agreement and the
Depositor's rights and remedies with respect to a breach thereof, and excluding
the Depositor's rights and remedies under the Indemnification Agreements) to the
extent related to any Mortgage Loan. The Depositor shall cause the Reserve
Accounts, Cash Collateral Accounts and Lock-Box Accounts relating to the
Mortgage Loans to be transferred to and held in the name of the Master Servicer
on behalf of the Trustee as successor to the Mortgage Loan Seller.
In connection with such transfer and assignment, the Depositor does
hereby deliver to, and deposit with, the Custodian, with copies to the Master
Servicer and the Special Servicer, the following documents or instruments with
respect to each Mortgage Loan, and the [_____] B Loan (which except for the Note
referred to in clause (i) below, relate to the Loan Combination) so assigned
(provided, however, the documents specified in items (xix) and (xx) shall be
delivered only to the Master Servicer):
(i) (A) the original Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the Originator, without recourse,
either in blank or to the order of the Trustee in the following form: "Pay
to the order of Xxxxx Fargo Bank, N.A., as Trustee for the registered
holders of COMM 200[_]-[_] Commercial Mortgage Pass-Through Certificates,
without recourse"; and (B) in the case of the [_____] B Loan, a copy of
the executed Note for such [_____] B Loan;
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the Mortgage Loan or
Loan Combination to the most recent assignee of record thereof prior to
the Trustee, if any, in each case with evidence of recording indicated
thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the Originator, either in blank or in favor of the
Trustee (in such capacity);
(iv) (A) an original or copy of any related security agreement (if
such item is a document separate from the Mortgage) and, if applicable,
the originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related Mortgage
Loan or Loan Combination to the most recent assignee of record thereof
prior to the Trustee, if any; and (B) an original assignment of any
related security agreement (if such item is a document separate from the
related Mortgage) executed by the most recent assignee of record thereof
prior to the Trustee or, if none, by the Originator, either in blank or in
favor of the Trustee (in such capacity), which assignment may be included
as part of the corresponding assignment of Mortgage referred to in clause
(iii) above;
(v) (A) stamped or certified copies of any UCC financing statements
and continuation statements which were filed in order to perfect (and
maintain the perfection of) any security interest held by the Originator
of the Mortgage Loan (and each assignee
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of record prior to the Trustee) in and to the personalty of the Borrower
at the Mortgaged Property (in each case with evidence of filing or
recording thereon) and which were in the possession of the Mortgage Loan
Seller (or its agent) at the time the Mortgage Files were delivered to the
Custodian, together with original UCC-2 or UCC-3 assignments of financing
statements showing a complete chain of assignment from the secured party
named in such UCC-1 financing statement to the most recent assignee of
record thereof prior to the Trustee, if any, and (B) if any such security
interest is perfected and the earlier UCC financing statements and
continuation statements were in the possession of the Mortgage Loan
Seller, an assignment of UCC financing statement by the most recent
assignee of record prior to the Trustee or, if none, by the Originator,
evidencing the transfer of such security interest, either in blank or in
favor of the Trustee;
(vi) the original or a copy of the Loan Agreement relating to such
Mortgage Loan, if any;
(vii) the original or a copy of the lender's title insurance policy
issued in connection with the origination of the Mortgage Loan, together
with all endorsements or riders (or copies thereof) that were issued with
or subsequent to the issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgaged Property, or a "marked up"
commitment to insure marked as binding and countersigned by the related
insurer or its authorized agent (which may be a pro forma or specimen
title insurance policy which has been accepted or approved as binding in
writing by the related title insurance company), or an agreement to
provide the same pursuant to binding escrow instructions executed by an
authorized representative of the title company;
(viii) (A) the original or a copy of the related Assignment of
Leases, Rents and Profits (if such item is a document separate from the
Mortgage) and, if applicable, 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
thereof prior to the Trustee, if any, in each case with evidence of
recording thereon; and (B) an original assignment of any related
Assignment of Leases, Rents and Profits (a "Reassignment of Assignment of
Leases, Rents and Profits") (if such item is a document separate from the
Mortgage), in recordable form, executed by the most recent assignee of
record thereof prior to the Trustee or, if none, by the Originator, either
in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above;
(ix) copies of the original environmental indemnity agreements and
environmental insurance policies pertaining to the Mortgaged Properties
required in connection with origination of the Mortgage Loans, if any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Properties and with respect to the Mortgage Loans sold by
[_____] such copies shall be provided in the Servicing File;
(xi) if the Borrower has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
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(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of contracts
and the assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash Collateral Account
Agreement is separate from the Mortgage or Loan Agreement, a copy thereof;
with respect to the Reserve Accounts, Cash Collateral Accounts and
Lock-Box Accounts, if any, a copy of the UCC-1 financing statements, if
any, submitted for filing with respect to the Mortgage Loan Seller's
security interest in the Reserve Accounts, Cash Collateral Accounts and
Lock-Box Accounts and all funds contained therein (and UCC-3 assignments
of financing statements assigning such UCC-1 financing statements to the
Trustee on behalf of the Certificateholders and with respect to the Loan
Combination on behalf of Certificateholders and the [_____] B Loan
Noteholder);
(xiv) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon
if appropriate, in those instances where the terms or provisions of the
Mortgage, the Note or any related security document have been modified or
the Mortgage Loan or Loan Combination has been assumed;
(xv) the original or a copy of any guaranty of the obligations of
the Borrower under the Mortgage Loan or Loan Combination together with, as
applicable, (A) the original or copies of any intervening assignments of
such guaranty showing a complete chain of assignment from the Originator
of the Mortgage Loan to the most recent assignee thereof prior to the
Trustee and (B) an original assignment of such guaranty executed by the
most recent assignee thereof prior to the Trustee or, if none, by the
Originator;
(xvi) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the related Borrower if
the Mortgage, Note or other document or instrument referred to above was
signed on behalf of the Borrower pursuant to such power of attorney;
(xvii) with respect to the Loan Combination, a copy of the related
Co-Lender Agreement;
(xviii) with respect hospitality properties, a copy of the franchise
agreement, if any, an original or copy of the comfort letter, if any, and
any transfer documents with respect to any such comfort letter;
(xix) the original (or copy, if the original is held by the Master
Servicer pursuant to Section 2.01(d)) of any letter of credit for the
benefit of the lender securing such Mortgage Loan; and
(xx) the appropriate assignment or amendment documentation related
to the assignment to the Trust of any letter of credit securing such
Mortgage Loan (or copy thereof, if the original is held by the Master
Servicer pursuant to Section 2.01(d)) which entitles the Master Servicer
on behalf of the Trust to draw thereon.
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With respect to the Loan Combination, except for the Note referred
to in clause (i) of the preceding paragraph, only a single original set of the
Loan Documents specified above is required to be delivered. With respect to any
group of Cross-Collateralized Mortgage Loans, if there exists only one original
or certified copy of any document referred to in Sections 2.01(a)(i) through
2.01(a)(xx) covering all of the Mortgage Loans in such group of
Cross-Collateralized Mortgage Loans, then the inclusion of such original or
certified copy in the Mortgage File for any of the Mortgage Loans constituting a
part of such group of Cross-Collateralized Mortgage Loans shall be deemed the
inclusion of such original or certified copy in the Mortgage File for each such
Mortgage Loan.
On or prior to the Closing Date, the Mortgage Loan Seller will
retain a third party vendor reasonably satisfactory to the Controlling Class
Representative (which may be the Custodian) to complete the assignment and
recordation of the related Loan Documents in the name of the Trustee on behalf
of the Certificateholders and with respect to the Loan Combination, the [_____]
B Loan Noteholder. On or promptly following the Closing Date, the Mortgage Loan
Seller will cause such third party vendor, to the extent possession of recorded
copies of each Mortgage and the documents described in Sections 2.01(a)(iii),
(v), (viii), (xiii) and (xiv) have been delivered to it, at the expense of the
Mortgage Loan Seller, (1) to prepare and record (a) each Assignment of Mortgage
referred to in Section 2.01(a)(iii) which has not yet been submitted for
recording and (b) each Reassignment of Assignment of Leases, Rents and Profits
referred to in Section 2.01(a)(viii)(B) (if not otherwise included in the
related Assignment of Mortgage) which has not yet been submitted for
recordation; and (2) to prepare and file each UCC assignment of financing
statement referred to in Section 2.01(a)(v) or (xiii) which has not yet been
submitted for filing or recording. The Mortgage Loan Seller will direct the
related third party vendor to promptly prepare and submit (and in no event later
than 30 Business Days following the receipt of the related documents in the case
of clause 1(a) above and 60 days following the receipt of the applicable
documents in the case of clauses 1(b) and 2 above) for recording or filing, as
the case may be, in the appropriate public recording or filing office, each such
document. In the event that any such document is lost or returned unrecorded
because of a defect therein, the Mortgage Loan Seller, at the expense of such
Mortgage Loan Seller (as set forth in the related Mortgage Loan Purchase
Agreement), will promptly prepare a substitute document for signature by the
Depositor or itself, as applicable, and thereafter the Mortgage Loan Seller will
cause each such document to be duly recorded or filed. The Mortgage Loan Seller
will, promptly upon receipt of the original recorded or filed copy (and in no
event later than five Business Days following such receipt) deliver such
original to the Custodian (in the case of each UCC financing statement or UCC
assignment of financing statement, with evidence of filing or recording
thereon). Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains the original
Mortgage, Assignment of Mortgage or Reassignment of Assignment of Leases, Rents
and Profits, if applicable, after any has been recorded, the obligations
hereunder of the Depositor shall be deemed to have been satisfied upon delivery
to the Custodian of a copy of such Mortgage, Assignment of Mortgage or
Reassignment of Assignment of Leases, Rents and Profits, if applicable,
certified by the public recording office to be a true and complete copy of the
recorded original thereof. Notwithstanding the foregoing, there shall be no
requirement to record any assignment to the Trustee or to file any UCC-3
assignment of financing statement in those jurisdictions where, in the written
opinion of local counsel (which opinion shall not be an expense of the Trust
Fund or the [_____] B Loan Noteholder) acceptable to the Depositor and
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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 Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Sub-Servicer or the Depositor.
If the Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of the related
lender's title insurance policy referred to in Section 2.01(a)(vii) solely
because such policy has not yet been issued, the delivery requirements of this
Section 2.01 will be deemed to be satisfied as to such missing item, and such
missing item will be deemed to have been included in the related Mortgage File
by delivery of a binder marked as binding and countersigned by the title insurer
or its authorized agent (which may be a pro forma or specimen title insurance
policy which has been accepted or approved as binding in writing by the related
title insurance company) or an acknowledged closing instruction or escrow
letter. Copies of recorded or filed Assignments of Mortgage, Reassignments of
Assignment of Leases, Rents and Profits and UCC assignments of financing
statements shall be held by the Custodian.
Subject to the third preceding paragraph, all original documents
relating to the Mortgage Loans which are not delivered to the Custodian are and
shall be held by the Depositor, the Trustee or the Master Servicer (or a
Sub-Servicer on its behalf), as the case may be, in trust for the benefit of the
Certificateholders and, insofar as they also relate to the [_____] B Loan, on
behalf of and for the benefit of the [_____] B Loan Noteholder. In the event
that any such original document, or in the case of the [_____] B Loan, the
original Note, is required pursuant to the terms of this Section to be a part of
a Mortgage File in order to effectuate the purposes of this Agreement, such
document shall be delivered promptly to the Custodian.
(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 Seller pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with or
cause to be delivered to and deposited with, the Custodian, on or before the
Closing Date, the Note, for each Mortgage Loan so assigned or a copy of the Note
evidencing the related [_____] B Loan and, within 30 days following the Closing
Date, the remaining applicable documents referred to in Section 2.01(a) for each
such Mortgage Loan or the [_____] B Loan, in each case with copies to the Master
Servicer. If the Mortgage Loan Seller cannot deliver, or cause to be delivered,
as to any Mortgage Loan, the original Note, such Mortgage Loan Seller shall
deliver a copy or duplicate original of such Note, together with an affidavit
certifying that the original thereof has been lost or destroyed and an
indemnification in favor of the Trustee. The Trustee shall provide a
certification (in the form attached hereto as Exhibit P-1) on the Closing Date
that all Notes or appropriate lost note affidavits have been delivered (with any
exceptions noted). The Trustee shall provide a certification no later than 45
days after the Closing Date (in the form attached hereto as Exhibit P-2) that a
copy of the Mortgage, a copy of any related ground leases, the originals of any
related letters of credit (or copies, if the originals are held by the Master
Servicer pursuant to Section 2.01(d)) and the lender's title policy (original or
copy or marked-up title commitment marked as binding and countersigned by the
title company or its authorized agent either on its face or by an acknowledged
closing instruction or escrow letter, which may be a pro forma or specimen title
insurance policy which has been accepted or approved as binding in writing by
the related title
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insurance company) and, with respect to hospitality properties, a copy of the
franchise agreement, an original or copy of the comfort letter and any transfer
documents with respect to such comfort letter required to be delivered on the
Closing Date have been delivered (with any exceptions noted).
If the Mortgage Loan Seller or the Depositor cannot deliver, or
cause to be delivered, as to any Mortgage Loan, the original or a copy of any of
the documents and/or instruments referred to in Section 2.01(a)(ii), Section
2.01(a)(v), Section 2.01(a)(viii)(A), Section 2.01(a)(xiv) and Section
2.01(a)(xvi) and the UCC financing statements and UCC assignments of financing
statements referred to in Section 2.01(a)(xiii), with evidence of recording or
filing thereon, solely because of a delay caused by the public recording or
filing office where such document or instrument has been delivered for
recordation or filing, or because such original recorded or filed document has
been lost or returned from the recording or filing office and subsequently lost,
as the case may be, the delivery requirements of Section 2.01 shall be deemed to
have been satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that a copy
of such document or instrument (without evidence of recording or filing thereon,
but certified (which certificate may relate to multiple documents and/or
instruments) by the applicable public recording or filing office, the applicable
title insurance company or the Mortgage Loan Seller to be a true and complete
copy of the original thereof submitted for recording or filing, as the case may
be) has been delivered to the Custodian within 45 days after the Closing Date,
and either the original of such missing document or instrument, or a copy
thereof, with evidence of recording or filing, as the case may be, thereon, is
delivered to the Custodian within 180 days after the Closing Date (or within
such longer period after the Closing Date as the Trustee may consent to, which
consent shall not be unreasonably withheld so long as the Mortgage Loan Seller
has provided the Trustee with evidence of such recording or filing, as the case
may be, or has certified to the Trustee as to the occurrence of such recording
or filing, as the case may be, and is, as certified to the Trustee no less often
than quarterly, in good faith attempting to obtain from the appropriate county
recorder's or filing office such original or copy; provided that in no event
shall such extension exceed 24 months after the Closing Date).
(c) The Depositor, concurrently with the execution and delivery
hereof, does hereby sell, transfer, assign, set over and otherwise convey to the
Trustee without recourse (except to the extent herein provided) all the right,
title and interest of the Depositor in, to and under the Loan REMIC Interests
and the related Loan REMIC Declaration. The Trustee shall administer the Loan
REMIC in accordance with Section 4.04(b) hereof.
(d) Notwithstanding anything herein to the contrary, with respect to
the documents referred to in clause (xix) and clause (xx) of Section 2.01(a),
the Master Servicer shall hold the original of each such document in trust on
behalf of the Trust in order to draw on such letter of credit on behalf of the
Trust and the Mortgage Loan Seller shall be deemed to have satisfied the
delivery requirements of the related Mortgage Loan Purchase Agreement and this
Section 2.01 by delivering the original of each such document to the Master
Servicer, who shall forward a copy of the applicable document to the Trustee.
The Mortgage Loan Seller shall pay any costs of assignment or amendment of such
letter of credit (which amendment shall change the beneficiary of the letter of
credit to the Trust in care of the Master Servicer) required in order for the
Master Servicer to draw on such letter of credit on behalf of the Trust. In the
event that
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the documents specified in clause (xx) of Section 2.01(a) are missing because
the related assignment or amendment documents have not been completed, the
Mortgage Loan Seller shall take all necessary steps to enable the Master
Servicer to draw on the related letter of credit on behalf of the Trust
including, if necessary, drawing on the letter of credit in its own name
pursuant to written instructions from the Master Servicer and immediately
remitting such funds (or causing such funds to be remitted) to the Master
Servicer.
Section 2.02 Acceptance by Custodian and the Trustee. By its
execution and delivery of this Agreement, the Trustee acknowledges the
assignment to it of the Mortgage Loans in good faith without notice of adverse
claims and declares that the Custodian holds and will hold such documents and
all others delivered to it constituting the Mortgage File (to the extent the
documents constituting the Mortgage File are actually delivered to the
Custodian) for any Mortgage Loan assigned to the Trustee hereunder in trust,
upon the conditions herein set forth, for the use and benefit of all present and
future Certificateholders and [_____] B Loan Noteholder. The Custodian agrees to
review each Mortgage File within 90 days after the later of the Closing Date or
actual receipt (but no later than 120 days after the Closing Date with respect
to any Mortgage File received within 100 days after the Closing Date), to
ascertain that all documents (other than documents referred to in clause (xix)
and clause (xx) of Section 2.01(a) which shall be delivered to the Master
Servicer and the documents referred to in clauses (iii), (v)(B) and (viii)(B) of
Section 2.01(a) and the assignments of financing statements referred to in
clause (xiii) of Section 2.01(a) which shall be delivered for filing or
recording by the Mortgage Loan Seller as provided herein) referred to in Section
2.01(a) above (in the case of the documents referred to in Section 2.01(a)(iv),
(v), (vi), (vii) (in the case of any endorsement thereto), (viii), (ix) and (x)
through (xx), as identified to it in writing by the Mortgage Loan Seller) and
any original recorded documents included in the delivery of a Mortgage File have
been received, have been executed, appear to be what they purport to be, purport
to be recorded or filed (as applicable) and have not been torn in any materially
adverse manner or mutilated or otherwise defaced, and that such documents relate
to the Mortgage Loans identified in the Mortgage Loan Schedule. In so doing, the
Custodian may rely on the purported due execution and genuineness of any such
document and on the purported genuineness of any signature thereon. If at the
conclusion of such review any document or documents constituting a part of a
Mortgage File have not been executed or received, have not been recorded or
filed (if required), are unrelated to the Mortgage Loans identified in the
Mortgage Loan Schedule, appear not to be what they purport to be or have been
torn in any materially adverse manner or mutilated or otherwise defaced, the
Custodian shall promptly so notify (in the form attached hereto as Exhibit O)
the Trustee, the Controlling Class Representative, the Depositor, the Master
Servicer, the Special Servicer and the Mortgage Loan Seller by providing a
written report, setting forth for each affected Mortgage Loan, with
particularity, the nature of the defective or missing document. The Depositor
shall or shall cause the Mortgage Loan Seller to deliver an executed, recorded
or undamaged document, as applicable, or, if the failure to deliver such
document in such form has a material adverse effect on the security provided by
the related Mortgaged Property or the ability of the Trustee to timely enforce
any rights or remedies in respect of such Mortgaged Property, the Depositor
shall cause the Mortgage Loan Seller to cure, repurchase or substitute for the
related Mortgage Loan in the manner provided in Section 2.03. None of the Master
Servicer, the Special Servicer or the Trustee shall be responsible for any loss,
cost, damage or expense to the Trust Fund resulting from any failure to receive
any document constituting a portion of a
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Mortgage File noted on such a report or for any failure by the Depositor to use
its best efforts to deliver any such document.
Contemporaneously with its execution of this Agreement, the
Depositor shall cause the Mortgage Loan Seller to deliver, a power of attorney
to the Master Servicer and Special Servicer, at the direction of the Controlling
Class Representative or its assignees, to take such other action as is necessary
to effect the delivery, assignment and/or recordation of any documents and/or
instruments relating to any Mortgage Loan which have not been delivered,
assigned or recorded at the time required for enforcement by the Trust Fund.
Pursuant to the related Mortgage Loan Purchase Agreement, each of the Mortgage
Loan Seller will be required to effect (at the expense of the Mortgage Loan
Seller) the assignment and recordation of its respective Loan Documents until
the assignment and recordation of all such Loan Documents has been completed.
In reviewing any Mortgage File pursuant to the second preceding
paragraph or Section 2.01, the Master Servicer shall have no responsibility to
cause the Custodian or Trustee to, and the Custodian or Trustee will have no
responsibility to, examine any opinions or determine whether any document is
legal, valid, binding or enforceable, whether the text of any assignment or
endorsement is in proper or recordable form (except, if applicable, to determine
if the Trustee is the assignee or endorsee), whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction,
whether a blanket assignment is permitted in any applicable jurisdiction, or
whether any Person executing any document or rendering any opinion is authorized
to do so or whether any signature thereon is genuine.
The Custodian shall hold that portion of the Trust Fund delivered to
the Custodian consisting of "instruments" (as such term is defined in Section
9-102 of the Uniform Commercial Code as in effect in Minnesota on the date
hereof) in Minnesota and, except as otherwise specifically provided in this
Agreement, shall not remove such instruments from Minnesota, as applicable,
unless it receives an Opinion of Counsel (obtained and delivered at the expense
of the Person requesting the removal of such instruments from Minnesota) that in
the event the transfer of the Mortgage Loans to the Trustee is deemed not to be
a sale, after such removal, the Trustee will possess a first priority perfected
security interest in such instruments.
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Repurchase and Substitution of Mortgage Loans. (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;
(ii) The Depositor has taken all necessary 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;
(iii) This Agreement has been duly and validly executed and
delivered by the Depositor and assuming the due authorization, execution
and delivery of this Agreement
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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 in accordance with the terms of this Agreement,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally, or by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iv) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provision of its certificate of incorporation or bylaws,
or any law or regulation to which the Depositor is subject, or conflict
with, result in a breach of or constitute a default under (or an event
which with notice or lapse of time or both would constitute a default
under) any of the terms, conditions or provisions of any agreement or
instrument to which the Depositor is a party or by which it is bound, or
any law, 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;
(v) The certificate of incorporation of the Depositor provides that
the Depositor is permitted to engage in only the following activities:
(A) to acquire, own, hold, sell, transfer, assign, pledge and
otherwise deal with the following: (I) "fully-modified pass-through"
certificates ("GNMA Certificates") issued and guaranteed as to
timely payment of principal and interest by the Government National
Mortgage Association ("GNMA"), a wholly-owned corporate
instrumentality of the United States within the Department of
Housing and Urban Development organized and existing under Title III
of the National Housing Act of 1934; (II) Guaranteed Mortgage
Pass-Through Certificates ("FNMA Certificates") issued and
guaranteed as to timely payment of principal and interest by FNMA;
(III) Mortgage Participation Certificates ("FHLMC Certificates")
issued and guaranteed as to timely payment of interest and ultimate
or full payment of principal by FHLMC; (IV) any other participation
certificates, pass-through certificates or other obligations or
interests backed directly or indirectly by mortgage loans and issued
or guaranteed by GNMA, FNMA or FHLMC (collectively with the GNMA
Certificates, FNMA Certificates and FHLMC Certificates, the "Agency
Securities"); (V) mortgage-backed securities, which securities need
not be issued or guaranteed, in whole or in part, by any
governmental entity, issued by one or more private entities
(hereinafter referred to as "Private Securities"); (VI) mortgage
loans secured by first, second or more junior liens on one-to-four
family residential properties, multifamily properties that are
either rental apartment buildings or projects containing five or
more residential units or commercial properties, regardless of
whether insured or guaranteed in whole or in part by any
governmental entity, or participation interests or stripped
interests in such mortgage loans ("Mortgage Loans"); (VII)
conditional sales contracts and installment sales or loan agreements
or participation interests therein secured by manufactured housing
("Contract"); and
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(VIII) receivables of third-parties or other financial assets of
third-parties, either fixed or revolving, that by their terms
convert into cash within a finite time period ("Other Assets");
(B) to loan its funds to any person under loan agreements and
other arrangements which are secured by Agency Securities, Private
Securities, Mortgage Loans, Contracts and/or Other Assets;
(C) to authorize, issue, sell and deliver bonds or other
evidences of indebtedness that are secured by Agency Securities,
Private Securities, Mortgage Loans, Contracts and/or Other Assets;
(D) to authorize, issue, sell and deliver certificates
evidencing beneficial ownership interests in pools of Agency
Securities, Private Securities, Mortgage Loans, Contracts and/or
Other Assets; and
(E) to engage in any activity and to exercise any powers
permitted to corporations under the laws of the State of Delaware
that are incident to the foregoing and necessary or convenient to
accomplish the foregoing.
Capitalized terms defined in this clause (v) shall apply only to such clause;
(vi) There is no action, suit, proceeding or investigation pending
or threatened against the Depositor in any court or by or before any other
governmental agency or instrumentality which would materially and
adversely affect the ability of the Depositor to carry out its obligations
under this Agreement;
(vii) No consent, approval, authorization or order of, or
registration or filing with, or notice to any court or governmental agency
or body, is required for the execution, delivery and performance by the
Depositor of or compliance by the Depositor with this Agreement, or if
required, such approval has been obtained prior to the Cut-off Date; and
(viii) The Trustee, if not the owner of the related Mortgage Loan,
will have a valid and perfected security interest of first priority in
each of the Mortgage Loans and any proceeds thereof.
(b) The Depositor hereby represents and warrants with respect to
each Mortgage Loan that:
(i) Immediately prior to the transfer and assignment to the Trustee,
the Note and the Mortgage were not subject to an assignment or pledge, and
the Depositor had good title to, and was the sole owner of, the Mortgage
Loan and had full right to transfer and sell the Mortgage Loan to the
Trustee free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest;
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(ii) The Depositor is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(iii) The related Assignment of Mortgage constitutes the legal,
valid and binding assignment of such Mortgage from the Depositor to the
Trustee, and any related Reassignment of Assignment of Leases, Rents and
Profits constitutes the legal, valid and binding assignment from the
Depositor to the Trustee; and
(iv) No claims have been made by the Depositor under the lender's
title insurance policy, and the Depositor has not done anything which
would impair the coverage of such lender's title insurance policy.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall survive delivery of the
respective Mortgage Files to the Custodian until the termination of this
Agreement, and shall inure to the benefit of the Certificateholders, the [_____]
B Loan Noteholder, the Master Servicer and the Special Servicer.
(d) If any party hereto discovers that any document constituting a
part of a Mortgage File has not been delivered within the time periods provided
for in Section 2.01, has not been properly executed, is missing, does not appear
to be regular on its face or contains information that does not conform in any
material respect with the corresponding information set forth in the Mortgage
Loan Schedule (each, a "Defect"), or discovers or receives notice of a breach of
any representation or warranty of any Mortgage Loan Seller made pursuant to the
related Mortgage Loan Purchase Agreement with respect to any Mortgage Loan (a
"Breach"), such party shall give prompt written notice thereof to each of the
Rating Agencies, the Mortgage Loan Seller, the other parties hereto, and the
Controlling Class Representative. If any such Defect or Breach materially and
adversely affects the value of any Mortgage Loan, the value of the related
Mortgaged Property or the interests of the Trustee or any Certificateholders in
any Mortgage Loan hereunder, then such Defect shall constitute a "Material
Defect" or such Breach shall constitute a "Material Breach," as the case may be;
provided, however, that if any of the documents specified in Section 2.01(i),
(ii), (vii), (xi), and (xix) of the definition of "Mortgage File" are not
delivered as required in Section 2.01(a), it shall be deemed a Material Defect.
Promptly upon receiving written notice of any such Material Defect or Material
Breach with respect to a Mortgage Loan (including through a written notice given
by any party hereto, as provided above), the Mortgage Loan Seller shall, not
later than [90] days from the Mortgage Loan Seller's receipt of notice from the
Depositor, any Servicer, the Special Servicer, the Trustee or the Custodian of
such Material Defect or Material Breach, as the case may be (or, in the case of
a Material Defect or Material Breach relating to a Mortgage Loan not being a
"qualified mortgage" within the meaning of the REMIC Provisions, not later than
90 days after the Mortgage Loan Seller or any party hereto discovering such
Material Defect or Material Breach) (any such [90]-day period, the "Initial
Resolution Period"), (i) cure the same in all material respects, (ii) repurchase
the affected Mortgage Loan at the applicable Repurchase Price or in conformity
with the applicable Mortgage Loan Purchase Agreement or (iii) substitute a
Qualifying Substitute Mortgage Loan for such affected Mortgage Loan (provided
that, in no event shall such substitution occur later than the second
anniversary of the Closing Date) and pay to the Master Servicer for deposit into
its Collection Account (or, with respect to the Loan Combination, the Loan
Combination Collection Account) any Substitution Shortfall Amount in
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connection therewith; provided, however, that with respect to any Material
Defect arising from a missing document as to which the Trustee inadvertently
certified its possession of such document (x) on the Closing Date, in the form
of Exhibit P-1 or (y) no later than [45] days following the Closing Date, in the
form of Exhibit P-2, the Mortgage Loan Seller shall have (A) [15] days to cure
the Material Defect relating to the missing document in the certification of
clause (x) and (B) [30] days to cure the Material Defect relating to the missing
document in the certification of clause (y); provided, further, that if (i) such
Material Defect (other than the one relating to the immediately preceding
proviso) or Material Breach is capable of being cured but not within the Initial
Resolution Period, (ii) such Material Defect or Material Breach is not related
to any Mortgage Loan's not being a "qualified mortgage" within the meaning of
the REMIC Provisions and (iii) the Mortgage Loan Seller has commenced and is
diligently proceeding with the cure of such Material Defect or Material Breach
within the Initial Resolution Period, then the Mortgage Loan Seller shall have
an additional period equal to the applicable Resolution Extension Period to
complete such cure or, failing such cure, to repurchase the Mortgage Loan or
substitute a Qualifying Substitute Mortgage Loan. The Mortgage Loan Seller shall
have an additional [90] days (without duplication of the additional [90]-day
period set forth in the last sentence of the definition of Resolution Extension
Period) to cure such Material Defect or Material Beach; provided that, the
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such Material Defect or Material Breach and such failure to cure is solely the
result of a delay in the return of documents from the local filing or recording
authorities. Notwithstanding the foregoing, if a Mortgage Loan is not secured by
a hotel, restaurant (operated by a Borrower), healthcare facility, nursing home,
assisted living facility, self-storage facility, theatre, mobile home park or
fitness center (operated by a Borrower) property, then the failure to deliver to
the Trustee copies of the UCC financing statements with respect to such Mortgage
Loan shall not be a Material Defect.
If one or more (but not all) of the Mortgage Loans constituting a
cross-collateralized group of Mortgage Loans are to be repurchased or
substituted by the Mortgage Loan Seller as contemplated by this Section 2.03(d),
then, prior to the subject repurchase or substitution, the Mortgage Loan Seller
or its designee shall use its reasonable efforts, subject to the terms of the
related Mortgage Loan(s), to prepare and, to the extent necessary and
appropriate, have executed by the related Borrower and record, such
documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loan(s) in such cross-collateralized group of Mortgage
Loans that are to be repurchased or substituted, on the one hand, and the
remaining Mortgage Loan(s) therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly corresponding thereto;
provided that, no such termination shall be effected unless and until the
Controlling Class Representative, if one is then acting, has consented in its
sole discretion and the Trustee has received from the Mortgage Loan Seller (i)
an Opinion of Counsel to the effect that such termination would not cause an
Adverse REMIC Event to occur and (ii) written confirmation from each Rating
Agency 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 of such termination; provided, further, that the Mortgage
Loan Seller, in the case of the related Mortgage Loans, may, at its option and
within the [90]-day cure period (and any applicable extension thereof) described
above, purchase or substitute for the entire subject cross-collateralized group
of Mortgage Loans in lieu of effecting a termination of the
cross-collateralization. All costs and expenses incurred by the Trustee or
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any Person acting on its behalf pursuant to this paragraph shall be included in
the calculation of the Repurchase Price for the Mortgage Loan(s) to be
repurchased or substituted. If the cross-collateralization of any
cross-collateralized group of Mortgage Loans cannot be terminated as
contemplated by this paragraph, then the Seller shall repurchase or substitute
the entire subject cross-collateralized group of Mortgage Loans.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties with respect to
a Mortgage Loan or cross-collateralized group of Mortgage Loans, the Mortgage
Loan Seller will not be obligated to repurchase the Mortgage Loan or
cross-collateralized group of Mortgage Loans if the affected Mortgaged Property
may be released pursuant to the terms of any partial release provisions in the
related Loan Documents (and such Mortgaged Property is, in fact, released) and
the remaining Mortgaged Property(ies) satisfy the requirements, if any, set
forth in the Loan Documents and the Mortgage Loan Seller provides an Opinion of
Counsel to the effect that such release would not cause an Adverse REMIC Event
to occur.
In the event that the Mortgage Loan Seller, in connection with a
Material Defect or a Material Breach (or an allegation of a Material Defect or a
Material Breach) pertaining to a Mortgage Loan, makes a cash payment pursuant to
an agreement or a settlement between the Mortgage Loan Seller and the Special
Servicer, on behalf of the Trust (each such payment, a "Loss of Value Payment")
with respect to such Mortgage Loan, the amount of such Loss of Value Payment
shall be deposited into the Loss of Value Reserve Fund to be applied in
accordance with Section 3.06(f). If such Loss of Value Payment is made, the Loss
of Value Payment shall serve as the sole remedy available to the
Certificateholders and the Trustee on their behalf regarding any such Material
Breach or Material Defect in lieu of any obligation of the Mortgage Loan Seller
to otherwise cure such Material Breach or Material Defect or repurchase or
substitute for the affected Mortgage Loan based on such Material Breach or
Material Defect under any circumstances. This paragraph is intended to apply
only to a mutual agreement or settlement between the Mortgage Loan Seller and
the Trust, provided, however, that prior to any such agreement or settlement
nothing in this paragraph shall preclude the Mortgage Loan Seller or the Trustee
from exercising any of its rights related to a Material Defect or a Material
Breach in the manner and timing set forth in the related Mortgage Loan Purchase
Agreement or this Section 2.03 (excluding this paragraph) (including any right
to cure, repurchase or substitute for such Mortgage Loan), and provided,
further, that such Loss of Value Payment shall not be greater than the
Repurchase Price of the affected Mortgage Loan.
(e) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.03, (A) the Trustee, the Master
Servicer (with respect to any such Mortgage Loan other than a Specially Serviced
Loan) and the Special Servicer (with respect to any such Mortgage Loan that is a
Specially Serviced Loan) shall each tender to the Mortgage Loan Seller, upon
delivery (i) to each of the Master Servicer or the Special Servicer, as
applicable, of a trust receipt and (ii) to the Trustee by the Master Servicer or
the Special Servicer, as applicable, of a Request for Release and an
acknowledgement by the Master Servicer or Special Servicer, as applicable, of
its receipt of the Repurchase Price or the Substitution Shortfall Amount from
the Mortgage Loan Seller, (1) all portions of the Mortgage File and other
documents pertaining to such Mortgage Loan possessed by it, and (2) each
document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be
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endorsed or assigned without recourse in the form of endorsement or assignment
provided to the Trustee by the Mortgage Loan Seller, as the case may be, to the
Mortgage Loan Seller as shall be necessary to vest in the Mortgage Loan Seller
the legal and beneficial ownership of such Mortgage Loan to the extent such
ownership was transferred to the Trustee (provided, however, that the Master
Servicer or Special Servicer, as applicable, shall use reasonable efforts to
cooperate in furnishing necessary information to the extent in its possession to
the Mortgage Loan Seller in connection with such Mortgage Loan Seller's
preparation of such endorsement or assignment) and (B) the Trustee shall
release, or cause a release of, any escrow payments and reserve funds held by
the Trustee, or on the Trustee's behalf, in respect of such Mortgage Loan to the
Mortgage Loan Seller.
(f) The Special Servicer shall, for the benefit of the
Certificateholders and the Trustee, enforce the obligations of the Mortgage Loan
Seller under Section 6 of the applicable Mortgage Loan Purchase Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims,
shall be carried out in accordance with the Servicing Standard. The Trustee, the
Master Servicer and the Special Servicer, as the case may be, shall be
reimbursed for the reasonable costs of such enforcement: first, pursuant to
Section 3.06 (with respect to the related Mortgage Loan), out of the related
Repurchase Price or Substitution Shortfall Amount, as applicable, to the extent
that such expenses are a specific component thereof; and second, if at the
conclusion of such enforcement action it is determined that the amounts
described in clause first are insufficient, then pursuant to Section 3.06, out
of general collections on the Mortgage Loans on deposit in the Collection
Account in each case with interest thereon at the Advance Rate from the time
such expense was incurred to, but excluding, the date such expense was
reimbursed.
On each anniversary of the Closing Date, the Custodian shall prepare
and forward to the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Controlling Class Representative (as identified to the Custodian
by the Trustee) and the Mortgage Loan Seller, a document exception report
setting forth the then current status of any Defects related to the Mortgage
Files pertaining to the Mortgage Loans sold by such Mortgage Loan Seller in a
format mutually agreed upon between the Custodian and the Trustee.
As to any Qualifying Substitute Mortgage Loan, the Trustee shall
direct the Mortgage Loan Seller to deliver to the Custodian for such Qualifying
Substitute Mortgage Loan (with a copy to the Master Servicer), the related
Mortgage File with the related Note endorsed as required by Section 2.01(a)(i)
hereof. Monthly Payments due with respect to Qualifying Substitute Mortgage
Loans in or prior to the month of substitution shall not be part of the Trust
Fund and will be retained by the Master Servicer and remitted by the Master
Servicer to the Mortgage Loan Seller on the next succeeding Distribution Date.
For the month of repurchase or substitution, distributions to Certificateholders
will include the Monthly Payment(s) due on the related Removed Mortgage Loan and
received by the Master Servicer or the Special Servicer on behalf of the Trust
on or prior to the related date of repurchase or substitution, as applicable,
and such Mortgage Loan Seller shall be entitled to retain all amounts received
thereafter in respect of such Removed Mortgage Loan.
In any month in which the Mortgage Loan Seller substitutes one or
more Qualifying Substitute Mortgage Loans for one or more Removed Mortgage
Loans, the Master Servicer will determine the applicable Substitution Shortfall
Amount. The Trustee shall direct
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such Mortgage Loan Seller to deposit cash equal to such amount into the
Collection Account and/or the Loan Combination Collection Account, as
applicable, concurrently with the delivery of the Mortgage Files for such
Qualifying Substitute Mortgage Loans, without any reimbursement thereof. The
Trustee shall also direct such Mortgage Loan Seller to give written notice to
the Depositor and the Master Servicer of such deposit. The Trustee shall amend
the Mortgage Loan Schedule to reflect the removal of each Removed Mortgage Loan
and, if applicable, the substitution of the Qualifying Substitute Mortgage Loan;
and, upon such amendment, the Trustee shall deliver or cause the delivery of
such amended Mortgage Loan Schedule to the other parties hereto. Upon any such
substitution, the Qualifying Substitute Mortgage Loans shall be subject to the
terms of this Agreement in all respects.
It is understood and agreed that Section 6 of the Mortgage Loan
Purchase Agreements provides the sole remedy available to the Certificateholders
and the Trustee on behalf of the Certificateholders respecting any Breach
(including a Breach with respect to a Mortgage Loan failing to constitute a
Qualified Mortgage) or any Defect.
(g) In the event that any litigation is commenced which alleges
facts which, in the judgment of the Depositor, could constitute a breach of any
of the Depositor's representations and warranties relating to the Mortgage
Loans, the Depositor hereby reserves the right to conduct the defense of such
litigation at its expense and shall not be required to obtain any consent from
the Master Servicer, the Special Servicer or the Controlling Class
Representative.
(h) If for any reason the Mortgage Loan Seller fails to fulfill its
obligations under the related Mortgage Loan Purchase Agreement with respect to
any Mortgage Loan, the Master Servicer or the Special Servicer, as applicable,
shall use reasonable efforts in enforcing any obligation of such Mortgage Loan
Seller to cure, repurchase or substitute for such Mortgage Loan under the terms
of the related Mortgage Loan Purchase Agreement, all at the expense of such
Mortgage Loan Seller.
Section 2.04 Representations, Warranties and Covenants of the Master
Servicer, Special Servicer and Trustee. (a) The Master Servicer, as Servicer
with respect to the Mortgage Loans and the Loan Combination, hereby represents
and warrants with respect to itself to the Trustee, for its own benefit and the
benefit of the Certificateholders, and to the Depositor, the Special Servicer
and the [_____] B Loan Noteholder, as of the Closing Date, that:
(i) The Master Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware or
the State of California, (as applicable), and the Master Servicer is in
compliance with the laws of each state (within the United States of
America) in which any related Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, do not (A) violate the Master 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,
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or (C) violate any law, rule, regulation, order, judgment or decree to
which the Master 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 Master Servicer to perform its obligations under this
Agreement or its financial condition;
(iii) The Master Servicer has the full corporate power and authority
to enter into and consummate all transactions to be performed by it
contemplated by this Agreement, has duly authorized the execution,
delivery and performance by it of this Agreement, and has duly executed
and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Paying Agent, the Special Servicer and the
Depositor, constitutes a valid, legal and binding obligation of the Master
Servicer, enforceable against the Master 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 Master 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 Master Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of that 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 Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer;
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer, or compliance by the Master Servicer
with, this Agreement or the consummation of the transactions of the Master
Servicer contemplated by this Agreement, except for any consent, approval,
authorization or order which has been obtained, or which, if not obtained
would not have a materially adverse effect on the ability of the Master
Servicer to perform its obligations hereunder;
(viii) Each officer and employee of the Master Servicer that has
responsibilities concerning the servicing and administration of Mortgage
Loans or Loan Combination is covered by errors and omissions insurance and
the fidelity bond in the amounts and with the coverage required by this
Agreement.
(b) The Special Servicer, as Special Servicer, hereby represents and
warrants to and covenants with the Trustee, for its own benefit the benefit of
the Certificateholders, and to
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the Depositor, the Master Servicer and the [_____] B Loan Noteholder, 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 California,
and the Special Servicer is in compliance with the laws of each state
(within the United States of America) in which any related 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, do 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 corporate power and
authority to enter into and consummate all transactions to be performed by
it contemplated by this Agreement, has duly authorized the execution,
delivery and performance by it of this Agreement, and has duly executed
and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Paying Agent, the Master Servicer and the
Depositor, constitutes a valid, legal and binding obligation of the
Special Servicer, enforceable against the Special Servicer in accordance
with the terms hereof, subject to applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, municipal or governmental agency, which default, in
the Special Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer;
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(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 Special Servicer, or compliance by the Special Servicer
with, this Agreement or the consummation of the transactions of the
Special Servicer contemplated by this Agreement, except for any consent,
approval, authorization or order which has been obtained, or which, if not
obtained would not have a materially adverse effect on the ability of the
Special Servicer to perform its obligations hereunder;
(viii) Each officer and employee of the Special Servicer that has
responsibilities concerning the servicing and administration of Mortgage
Loans or Loan Combination is covered by errors and omissions insurance and
the fidelity bond in the amounts and with the coverage required by this
Agreement.
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive delivery of the respective
Mortgage Files to the Trustee or the Custodian on behalf of the Trustee until
the termination of this Agreement, and shall inure to the benefit of the
Trustee, the Depositor, the [_____] B Loan Noteholder and the Master Servicer or
Special Servicer, as the case may be. Upon discovery by the Depositor, the
Master Servicer, the Special Servicer or a Responsible Officer of the Trustee
(or upon written notice thereof from any Certificateholder) of a breach of any
of the representations and warranties set forth in this Section which materially
and adversely affects the interests of the Certificateholders, the Master
Servicer, Special Servicer or the Trustee in any Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other parties
hereto and the Mortgage Loan Seller.
(d) The Trustee hereby represents and warrants to the Depositor, the
Master Servicer, the Special Servicer and the [_____] B Loan Noteholder as of
the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing, and in good standing under the laws of the United States
and has full power, authority and legal right to own its properties and
conduct its business as presently conducted and to execute, deliver and
perform the terms of this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Trustee and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a legal, valid and binding
instrument enforceable against the Trustee in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights in general and by general equity principles (regardless
of whether such enforcement is considered in a proceeding in equity or at
law).
(iii) Neither the execution and delivery of this Agreement by the
Trustee nor the consummation by the Trustee of the transactions herein
contemplated to be performed by the Trustee, nor compliance by the Trustee
with the provisions hereof, will conflict with or result in a breach of,
or constitute a default under, any of the provisions of any applicable law
(subject to the appointment in accordance with such applicable law of any
co-Trustee or separate Trustee required pursuant to this Agreement),
governmental rule, regulation, judgment, decree or order binding on the
Trustee or its properties or the
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organizational documents of the Trustee or the terms of any material
agreement, instrument or indenture to which the Trustee is a party or by
which it is bound.
(iv) The Trustee is not in violation of, and the execution and
delivery of this Agreement by the Trustee and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court binding on the
Trustee or any law, order or regulation of any federal, state, municipal
or governmental agency having jurisdiction, or result in the creation or
imposition of any lien, charge or encumbrance which, in any such event,
would have consequences that would materially and adversely affect the
condition (financial or otherwise) or operation of the Trustee or its
properties or impair the ability of the Trust Fund to realize on the
Mortgage Loans;
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to any court or governmental agency or body, is
required for the execution, delivery and performance by the Trustee of or
compliance by the Trustee with this Agreement, or if required, such
approval has been obtained prior to the Cut-off Date.
Section 2.05 Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests. The Trustee acknowledges the assignment to it of
the Mortgage Loans and the delivery of the Mortgage Files to the Custodian (to
the extent the documents constituting the Mortgage Files are actually delivered
to the Custodian), subject to the provisions of Section 2.01 and Section 2.02
and, concurrently with such delivery, (i) acknowledges and hereby declares that
it holds the Mortgage Loans and the Loan REMIC Regular Interest on behalf of the
Lower-Tier REMIC and the Certificateholders; (ii) acknowledges the issuance of
the Lower-Tier Regular Interests and the [Class LR] Certificates (as provided in
clause (iii)) and hereby declares that it holds the Lower-Tier Regular Interests
on behalf of the Upper-Tier REMIC and the Holders of the Certificates (other
than the [Class LR] Certificate); and (iii) in exchange for the Lower-Tier
Regular Interests, has caused to be executed and caused to be authenticated and
delivered to or upon the order of the Depositor, or as directed by the terms of
this Agreement, the Regular Certificates, [Class R] and [Class LR] Certificates
(in respect of the residual interest in the Lower-Tier REMIC) in authorized
denominations, in each case registered in the names set forth in such order or
as so directed in this Agreement and duly authenticated by the Authenticating
Agent, which Certificates and Lower-Tier Regular Interests evidence ownership of
the entire Trust Fund.
The Trustee hereby acknowledges the assignment to it of the Loan
REMIC Residual Interest and, concurrently with such assignment, acknowledges the
issuance of the [Class LR] Certificates (in respect of the beneficial interest
in the Loan REMIC Residual Interest), which are hereby designated as undivided
beneficial interests in the portion of the Trust Fund consisting of the Loan
REMIC Residual Interest and the related portion of the Grantor Trust
Distribution Account, which portion shall be treated as part of the Grantor
Trust.
Section 2.06 Miscellaneous REMIC and Grantor Trust Provisions. (a)
The Lower-Tier Regular Interests issued hereunder are hereby designated as the
"regular interests" in the Lower-Tier REMIC within the meaning of Section
860G(a)(1) of the Code, and the [Class LR] Certificates are hereby designated as
representing the sole class of "residual interests" in the Lower-Tier REMIC
within the meaning of Section 860G(a)(2) of the Code. The Regular
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Certificates are hereby designated as "regular interests" in the Upper-Tier
REMIC within the meaning of Section 860G(a)(1) of the Code and the [Class R]
Certificates are hereby designated as the sole Class of "residual interests" in
the Upper-Tier REMIC within the meaning of Section 860G(a)(2) of the Code. The
Closing Date is hereby designated as the "Startup Day" of the Lower-Tier REMIC
and the Upper-Tier REMIC within the meaning of Section 860G(a)(9) of the Code.
The "latest possible maturity date" of the Lower-Tier Regular Interests and the
Regular Certificates for purposes of Section 860G(a)(l) of the Code is the Rated
Final Distribution Date.
(b) None of the Depositor, the Trustee, the Master Servicer or the
Special Servicer shall enter into any arrangement by which the Trust Fund will
receive a fee or other compensation for services other than as specifically
contemplated herein.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
Section 3.01 The Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of the Mortgage Loans and
the [_____] B Loan. (a) The Master Servicer and the Special Servicer, each as an
independent contractor servicer, shall service and administer the Mortgage Loans
and Loan Combination on behalf of the Trust Fund and the Trustee (as Trustee for
the Certificateholders), and, in the case of the [_____] B Loan, on behalf of
the [_____] B Loan Noteholder, in each case, in accordance with the Servicing
Standard and, with respect to the [_____] B Loan, as a collective whole with the
related Mortgage Loan, giving due regard to the junior nature of the [_____] B
Loan.
The Master Servicer's or Special Servicer's liability for actions
and omissions in its capacity as Master Servicer or Special Servicer, as the
case may be, hereunder is limited as provided herein (including, without
limitation, pursuant to Section 6.03 hereof). To the extent consistent with the
foregoing and subject to any express limitations set forth in this Agreement,
the Master Servicer and Special Servicer shall seek to maximize the timely and
complete recovery of principal and interest on the Notes; provided, however,
that nothing herein contained shall be construed as an express or implied
guarantee by the Master Servicer or Special Servicer of the collectability of
the Mortgage Loans and the [_____] B Loan. Subject only to the Servicing
Standard, the Master Servicer and Special Servicer shall have full power and
authority, acting alone or through Sub-Servicers (subject to paragraph (c) of
this Section 3.01, to the related agreement with each Sub-Servicer and to
Section 3.02), to do or cause to be done any and all things in connection with
such servicing and administration that it may deem consistent with the Servicing
Standard and, in its reasonable judgment, in the best interests of the
Certificateholders, including, without limitation, with respect to each Mortgage
Loan in the case of the [_____] B Loan, in the best interests of the
Certificateholders and the [_____] B Loan Noteholder, as a collective whole, to
prepare, execute and deliver, on behalf of the Certificateholders and [_____] B
Loan Noteholder and the Trustee or any of them: (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien on each Mortgaged Property and related collateral; (ii) any
modifications, waivers, consents or amendments to or with respect to any
documents contained in the related Mortgage File; and
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(iii) any and all instruments of satisfaction or cancellation, or of partial or
full release or discharge, and all other comparable instruments, with respect to
the Mortgage Loans and the Mortgaged Properties. Notwithstanding the foregoing,
neither the Master Servicer nor the Special Servicer shall modify, amend, waive
or otherwise consent to any change of the terms of any Mortgage Loan except
under the circumstances described in Sections 3.03, 3.09, 3.10, 3.28, 3.30,
3.31, 3.32, 3.33 and 3.34 hereof. The Master Servicer and Special Servicer shall
provide to the Borrowers related to the Mortgage Loans that it is servicing any
reports required to be provided to them thereby pursuant to the related Loan
Documents. Subject to Section 3.11, the Trustee shall, upon the receipt of a
written request of a Servicing Officer, execute and deliver to the Master
Servicer and Special Servicer any powers of attorney and other documents
prepared by the Master Servicer and Special Servicer and necessary or
appropriate (as certified in such written request) to enable the Master Servicer
and Special Servicer to carry out their servicing and administrative duties
hereunder.
(b) Unless otherwise provided in the related Note or related
Co-Lender Agreement, the Master Servicer shall apply any partial Principal
Prepayment received on a Mortgage Loan or the [_____] B Loan, as applicable, on
a date other than a Due Date to the Stated Principal Balance of such Mortgage
Loan or the [_____] B Loan, as applicable, as of the Due Date immediately
following the date of receipt of such partial Principal Prepayment. Unless
otherwise provided in the related Note or related Co-Lender Agreement, the
Master Servicer shall apply any amounts received on U.S. Treasury obligations
(which shall not be redeemed by the Master Servicer prior to the maturity
thereof) in respect of a Mortgage Loan or, [_____] B Loan, as applicable, being
defeased pursuant to its terms to the Stated Principal Balance of and interest
on such Mortgage Loan or the [_____] B Loan, as applicable, as of the Due Date
immediately following the receipt of such amounts.
(c) The Master Servicer and, with the consent of the Controlling
Class Representative, the Special Servicer, may enter into Sub-Servicing
Agreements with third parties with respect to any of its respective obligations
hereunder, provided, that (i) any such agreement requires the Sub-Servicer to
comply with all of the applicable terms and conditions of this Agreement and
shall be consistent with the provisions of this Agreement, the terms of the
respective Mortgage Loans and, [_____] B Loan and, in the case of the [_____] B
Loan, the related Co-Lender Agreement, (ii) no Sub-Servicer retained by the
Master Servicer or the Special Servicer, as applicable, shall grant any
modification, waiver or amendment to any Mortgage Loan, or the [_____] B Loan,
as applicable, or foreclose any Mortgage without the approval of the Master
Servicer or the Special Servicer, as applicable, which approval shall be given
or withheld in accordance with the procedures set forth in Sections 3.09, 3.10,
3.28, 3.30, 3.31, 3.32, 3.33 or 3.34 (as applicable) and (iii) such agreement
shall be consistent with the Servicing Standard. Any such Sub-Servicing
Agreement may permit the Sub-Servicer to delegate its duties to agents or
subcontractors so long as the related agreements or arrangements with such
agents or subcontractors are consistent with the provisions of this Section
3.01(c). Any monies received by a Sub-Servicer pursuant to a Sub-Servicing
Agreement (other than sub-servicing fees) shall be deemed to be received by the
Master Servicer on the date received by such Sub-Servicer.
Any Sub-Servicing Agreement entered into by the Master Servicer or
the Special Servicer, as applicable, shall provide that it may be assumed by the
Trustee if the Trustee has assumed the duties of the Master Servicer or the
Special Servicer, respectively, or any successor
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Master Servicer or Special Servicer, as applicable, without cost or obligation
to the assuming party, the Trust Fund, upon the assumption by such party of the
obligations, except to the extent they arose prior to the date of assumption, of
the Master Servicer or the Special Servicer, as applicable, pursuant to Section
7.02.
Any Sub-Servicing Agreement, and any other transactions or services
relating to the Mortgage Loans or the [_____] B Loan involving a Sub-Servicer,
shall be deemed to be between the Master Servicer or the Special Servicer, as
applicable, and such Sub-Servicer alone, and the Trustee, the Trust Fund and
Certificateholders and, if applicable, [_____] B Loan Noteholder shall not be
deemed parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Sub-Servicer, except as set forth in Section
3.01(d).
Further, with respect to the [__________] Loan Combination, the
related B Loan Noteholder shall have the right to appoint or serve as a primary
servicer of the Mortgage Loan, pursuant to a Sub-Servicing Agreement between
itself and the Master Servicer; provided, however, that (i) the Sub-Servicing
Agreement will give the primary servicer control over the same servicing matters
as such primary servicer has control over pursuant to Exhibit C of the
[__________] Agreement Among Noteholders (which is a Form of Sub-Servicing
Agreement) and will provide for a fee structure substantially similar to the fee
structure reflected in such Exhibit C of the [__________] Agreement Among
Noteholders; and (ii) the Sub-Servicing Agreement will provide that such
agreement will terminate upon (X) the transfer by the [__________] B Loan
Noteholder of greater than [75]% beneficial interest in the [__________] Loan;
or (Y) the occurrence of a [__________] Control Appraisal Event, subject to
reinstatement as provided in Exhibit C of the [__________] Agreement Among
Noteholders.
Notwithstanding the provisions of any Sub-Servicing Agreement and
this Section 3.01, in no event shall the Trust Fund or any B Loan bear any
termination fee required to be paid to any Sub-Servicer as a result of the
termination of nay Sub-Servicing Agreement.
(d) If the Trustee or any successor Master Servicer assumes the
obligations of the Master Servicer, or if the Trustee or any successor Special
Servicer assumes the obligations of the Special Servicer, in each case in
accordance with Section 7.02, the Trustee, successor Master Servicer or such
successor Special Servicer, as applicable, to the extent necessary to permit the
Trustee, successor Master Servicer or such successor Special Servicer, as
applicable, to carry out the provisions of Section 7.02, shall, without act or
deed on the part of the Trustee, successor Master Servicer or such successor
Special Servicer, as applicable, succeed to all of the rights and obligations of
the Master Servicer or the Special Servicer, as applicable, under any
Sub-Servicing Agreement entered into by the Master Servicer or the Special
Servicer, as applicable, pursuant to Section 3.01(c). In such event, such
successor shall be deemed to have assumed all of the Master Servicer's or the
Special Servicer's interest, as applicable, therein (but not any liabilities or
obligations in respect of acts or omissions of the Master Servicer or the
Special Servicer, as applicable, prior to such deemed assumption) and to have
replaced the Master Servicer or the Special Servicer, as applicable, as a party
to such Sub-Servicing Agreement to the same extent as if such Sub-Servicing
Agreement had been assigned to such successor, except that the Master Servicer
or the Special Servicer, as applicable, shall not thereby be relieved of any
liability or obligations under such Sub-Servicing Agreement that accrued prior
to the succession of such successor.
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If the Trustee or any successor Master Servicer or Special Servicer,
as applicable, assumes the servicing obligations of the Master Servicer or the
Special Servicer, as applicable, then upon request of such successor, the Master
Servicer or Special Servicer, as applicable, shall at its own expense (except
(i) in the event that the Special Servicer is terminated pursuant to Section
3.25(b), at the expense of the Certificateholders effecting such termination, as
applicable; or (ii) in the event that the Master Servicer or the Special
Servicer is terminated pursuant to Section 6.04(c), at the expense of the
Certificateholders, pro rata) deliver to such successor all documents and
records relating to any Sub-Servicing Agreement and the Mortgage Loans and/or,
if applicable, the [_____] B Loan then being serviced thereunder and an
accounting of amounts collected and held by it, if any, and shall otherwise use
its best efforts to effect the orderly and efficient transfer of any
Sub-Servicing Agreement to such successor. The Master Servicer shall not be
required to assume the obligations of the Special Servicer and nothing in this
paragraph shall imply otherwise.
(e) The parties hereto acknowledge that the Loan Combination is
subject to the terms and conditions of the related Co-Lender Agreement. The
parties hereto further recognize the respective rights and obligations of the
[________] B Loan Noteholder under the [________] Agreement Among Noteholders.
Notwithstanding anything herein to the contrary, the parties hereto
acknowledge and agree that the Master Servicer's and Special Servicer's
obligations and responsibilities hereunder and the Master Servicer's and Special
Servicer's authority with respect to the Loan Combination are limited by and
subject to the terms of the related Co-Lender Agreement.
Section 3.02 Liability of the Master Servicer. Notwithstanding any
Sub-Servicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Master Servicer or Special Servicer and
any Person acting as Sub-Servicer (or its agents or subcontractors) or any
reference to actions taken through any Person acting as Sub-Servicer or
otherwise, the Master Servicer or Special Servicer, as applicable, shall remain
obligated and primarily liable to the Trustee (on behalf of the
Certificateholders), the Certificateholders and, with respect to the Loan
Combination, the [_____] B Loan Noteholder, for the servicing and administering
of the Mortgage Loans and [_____] B Loan in accordance with the provisions of
this Agreement without diminution of such obligation or liability by virtue of
such Sub-Servicing Agreements or arrangements or by virtue of indemnification
from the Depositor or any other Person acting as Sub-Servicer (or its agents or
subcontractors) to the same extent and under the same terms and conditions as if
the Master Servicer or Special Servicer, as applicable, alone were servicing and
administering the Mortgage Loans and the [_____] B Loan. Each of the Master
Servicer and the Special Servicer shall be entitled to enter into an agreement
with any Sub-Servicer providing for indemnification of the Master Servicer or
Special Servicer, as applicable, by such Sub-Servicer, and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification, but no
such agreement for indemnification shall be deemed to limit or modify this
Agreement.
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Section 3.03 Collection of Mortgage Loan and [_____] B Loan
Payments. (a) The Master Servicer (with respect to the Mortgage Loans and the
[_____] B Loan that the Master Servicer is servicing, other than Specially
Serviced Loans) and the Special Servicer (with respect to Specially Serviced
Loans) shall use reasonable efforts to collect all payments called for under the
terms and provisions of the Mortgage Loans and the [_____] B Loan each is
obligated to service hereunder, and shall follow the Servicing Standard with
respect to such collection procedures; provided, however, that nothing herein
contained shall be construed as an express or implied guarantee by the Master
Servicer or the Special Servicer of the collectability of the Mortgage Loans and
the [_____] B Loan. With respect to each Performing Loan, the Master Servicer
shall use its reasonable efforts, consistent with the Servicing Standard, to
collect income statements and rent rolls from Borrowers as required by the Loan
Documents and the terms hereof. The Master Servicer shall provide at least 90
days' notice (with a copy to the Special Servicer) to the Borrowers of Balloon
Payments coming due. Consistent with the foregoing, the Master Servicer (with
respect to each Performing Loan) or the Special Servicer (with respect to
Specially Serviced Loans) may in their discretion waive any late payment charge
in connection with any delinquent Monthly Payment or Balloon Payment with
respect to any Mortgage Loan or the [_____] B Loan that it is servicing. In
addition, the Special Servicer shall be entitled to take such actions with
respect to the collection of payments on the Mortgage Loans and the [_____] B
Loan as are permitted or required under Section 3.28 hereof.
Section 3.04 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) The Special Servicer, in the case of Specially Serviced
Loans and REO Loans and, if applicable, the related [_____] B Loan that are
Specially Serviced Loans or REO Loans, and the Master Servicer, in the case of
all Performing Loans that it is servicing, shall maintain accurate records with
respect to each related Mortgaged Property reflecting the status of taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums payable with respect thereto. With respect to
each Specially Serviced Loan, the Special Servicer shall use its reasonable
efforts, consistent with the Servicing Standard, to collect income statements
and rent rolls from Borrowers as required by the Loan Documents. The Special
Servicer, in the case of Specially Serviced Loans and REO Loans, and the Master
Servicer, in the case of all Performing Loans that it is servicing, shall use
reasonable efforts consistent with the Servicing Standard to, from time to time,
(i) obtain all bills for the payment of such items (including renewal premiums),
and (ii) effect payment of all such bills with respect to such Mortgaged
Properties prior to the applicable penalty or termination date, in each case
employing for such purpose Escrow Payments as allowed under the terms of the
related Mortgage Loan or the [_____] B Loan. If a Borrower fails to make any
such payment on a timely basis or collections from the Borrower are insufficient
to pay any such item before the applicable penalty or termination date, the
Master Servicer shall advance the amount of any shortfall as a Property Advance
unless the Master Servicer determines in its good faith business judgment that
such Advance would be a Nonrecoverable Advance (provided that with respect to
advancing insurance premiums or delinquent tax assessments the Master Servicer
shall comply with the provisions of the second to last paragraph in Section
3.24(d)). The Master Servicer shall be entitled to reimbursement of Property
Advances, with interest thereon at the Advance Rate, that it makes pursuant to
this Section 3.04 from amounts received on or in respect of the related Mortgage
Loan or Loan Combination respecting which such Advance was made or if such
Advance has become a Nonrecoverable Advance, to the extent permitted by Section
3.06 of this Agreement. No costs incurred by the Master Servicer in effecting
the payment of taxes and
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assessments on the Mortgaged Properties shall, for the purpose of calculating
distributions to Certificateholders or the [_____] B Loan Noteholder, be added
to the amount owing under the related Mortgage Loans or, [_____] B Loan,
notwithstanding that the terms of such Mortgage Loans or the [_____] B Loan so
permit.
(b) The Master Servicer shall segregate and hold all funds collected
and received pursuant to any Mortgage Loan or the [_____] B Loan that it is
servicing constituting Escrow Payments separate and apart from any of its own
funds and general assets and shall establish and maintain one or more segregated
custodial accounts (the "Escrow Account") into which all Escrow Payments shall
be deposited within [two] [(2)] Business Days after receipt and maintained in
accordance with the requirements of the related Mortgage Loan or Loan
Combination, as applicable, and in accordance with the Servicing Standard. The
Master Servicer shall also deposit into the Escrow Account any amounts
representing losses on Permitted Investments pursuant to Section 3.07(b) and any
Insurance Proceeds or Liquidation Proceeds which are required to be applied to
the restoration or repair of any Mortgaged Property pursuant to the related
Mortgage Loan or Loan Combination. The Escrow Account shall be an Eligible
Account (except to the extent the related Mortgage Loan requires it to be held
in an account that is not an Eligible Account); provided, however, in the event
that the ratings of the financial institution holding such account are
downgraded to a ratings level below that of an Eligible Account (except to the
extent the related Mortgage Loan requires it to be held in an account that is
not an Eligible Account), the Master Servicer shall have [30] Business Days (or
such longer time as confirmed by a written confirmation from the Rating
Agencies, obtained at the expense of the Master Servicer, that such longer time
shall not result in a downgrade, qualification or withdrawal of the then-current
ratings assigned to any of the Certificates) to transfer such account to an
Eligible Account. The Escrow Account shall be entitled "[________] as Servicer,
in trust for [________], as Trustee in trust for Holders of Deutsche Mortgage &
Asset Receiving Corporation, COMM 200[_]-[_] Commercial Mortgage Pass-Through
Certificates and Various Borrowers and, if applicable, [_____] B Loan
Noteholder." Withdrawals from the Escrow Account may be made by the Master
Servicer only:
(i) to effect timely payments of items constituting Escrow Payments
for the related Mortgage;
(ii) to transfer funds to its Collection Account and/or the Loan
Combination Collection Account (or any sub-account thereof) to reimburse
the Master Servicer, the Special Servicer or the Trustee for any Property
Advance (with interest thereon at the Advance Rate) relating to Escrow
Payments, but only from amounts received with respect to the related
Mortgage Loan and/or Loan Combination, as applicable, which represent late
collections of Escrow Payments thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and/or
Loan Combination, as applicable, and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination
of this Agreement or pay-off of the related Mortgage Loan or Loan
Combination, as applicable;
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(v) to pay from time to time to the related Borrower any interest or
investment income earned on funds deposited in the Escrow Account if such
income is required to be paid to the related Borrower under law or by the
terms of the Mortgage Loan or Loan Combination, or otherwise to the Master
Servicer; or
(vi) to remove any funds deposited in an Escrow Account that were
not required to be deposited therein or to refund amounts to Borrowers
determined to be overages.
(c) The Master Servicer shall, as to each Mortgage Loan and the
[_____] B Loan that it is servicing, (i) maintain accurate records with respect
to the related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect thereof
and (ii) use reasonable efforts to obtain, from time to time, all bills for (or
otherwise confirm) the payment of such items (including renewal premiums) and,
for such Mortgage Loans and [_____] B Loan that require the related Borrower to
escrow for such items, shall effect payment thereof prior to the applicable
penalty or termination date. For purposes of effecting any such payment for
which it is responsible, the Master Servicer shall apply Escrow Payments as
allowed under the terms of the related Mortgage Loan and [_____] B Loan (or, if
such Mortgage Loan or the [_____] B Loan does not require the related Borrower
to escrow for the payment of real estate taxes, assessments, insurance premiums,
ground rents (if applicable) and similar items, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause the related
Borrower to comply with the requirement of the related Mortgage that the
Borrower make payments in respect of such items at the time they first become
due and, in any event, prior to the institution of foreclosure or similar
proceedings with respect to the related Mortgaged Property for nonpayment of
such items). Subject to Section 3.24, the Master Servicer shall timely make a
Property Advance with respect to the Mortgage Loans and Loan Combination that it
is servicing, if any, to cover any such item which is not so paid, including any
penalties or other charges arising from the Borrower's failure to timely pay
such items.
Section 3.05 Collection Account; Excess Liquidation Proceeds
Account; Distribution Accounts; Interest Reserve Account and Loan Combination
Collection Account. (a) The Master Servicer shall establish and maintain its
Collection Account, for the benefit of the Certificateholders and the Trustee as
the Holder of the Lower-Tier Regular Interests with respect to the Mortgage
Loans that it is servicing. Such Collection Account shall be established and
maintained as an Eligible Account. Amounts attributable to the Mortgage Loans
will be assets of the Lower-Tier REMIC. Amounts attributable to the [_____] B
Loan will not be assets of the Trust Fund.
The Master Servicer shall deposit or cause to be deposited in its
Collection Account within one Business Day following receipt the following
payments and collections received or made by or on behalf of it on or with
respect to the Mortgage Loans that it is servicing subsequent to the Cut-off
Date:
(i) all payments on account of principal on the Mortgage Loans
(other than any Mortgage Loan related to the Loan Combination), including
the principal component of all Unscheduled Payments;
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(ii) all payments on account of interest on the Mortgage Loans
(other than any Mortgage Loan related to the Loan Combination) (net of the
related Servicing Fees), including Prepayment Premiums, Default Interest,
Yield Maintenance Charges, and the interest component of all Unscheduled
Payments;
(iii) any amounts required to be deposited pursuant to Section
3.07(b), in connection with net losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(iv) all Net REO Proceeds withdrawn from the related REO Account
(other than the Loan Combination REO Account) pursuant to Section 3.17(b);
(v) any amounts received from Borrowers which represent recoveries
of Property Protection Expenses and are allocable to the Mortgage Loans
(other than any Mortgage Loan related to the Loan Combination), to the
extent not permitted to be retained by the Master Servicer as provided
herein;
(vi) all Insurance Proceeds and Liquidation Proceeds received in
respect of any Mortgage Loan (other than any Mortgage Loan related to the
Loan Combination) or any REO Property (other than REO Property related to
the Loan Combination), other than Excess Liquidation Proceeds and
Liquidation Proceeds that are received in connection with a purchase of
all the Mortgage Loans and any REO Properties in the Trust Fund and that
are to be deposited in the Lower-Tier Distribution Account pursuant to
Section 9.01, together with any amounts representing recoveries of
Nonrecoverable Advances, including any recovery of Unliquidated Advances,
in respect of the related Mortgage Loans (other than any Mortgage Loan
related to the Loan Combination); provided, however, that any Liquidation
Proceeds related to a sale pursuant to Section 3.18 hereof or pursuant to
the related Co-Lender Agreement of a Mortgage Loan included in the Loan
Combination shall be deposited directly into the Collection Account and
applied solely to pay expenses relating to that Mortgage Loan and to
Available Funds;
(vii) Penalty Charges on the Mortgage Loans (other than any Mortgage
Loan related to the Loan Combination) to the extent required to offset
interest on Advances and Additional Trust Fund Expenses pursuant to
Section 3.12(d);
(viii) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.08(b) in connection with
losses resulting from a deductible clause in a blanket or master
force-placed policy in respect of the Mortgage Loans (other than any
Mortgage Loan related to the Loan Combination);
(ix) any other amounts required by the provisions of this Agreement
(including without limitation any amounts to be transferred from the Loan
Combination Collection Account pursuant to Section 3.06(c)(i)(B) and, with
respect to the B Loans or any mezzanine indebtedness that may exist on a
future date, all amounts received pursuant to the cure and purchase rights
or reimbursement obligations set forth in the related Co-Lender Agreement
or mezzanine intercreditor agreement, as applicable) to be deposited into
the related Collection Account by the Master Servicer or Special Servicer;
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(x) any Servicer Prepayment Interest Shortfalls in respect of the
Mortgage Loans that the Master Servicer is servicing (other than any
Mortgage Loan related to a Loan Combination) pursuant to Section 4.01(i);
and
(xi) any Loss of Value Payments, as set forth in Section 3.06(f).
In the case of Excess Liquidation Proceeds, the Master Servicer
shall make appropriate ledger entries received with respect thereto, which the
Master Servicer shall hold for (i) the Trustee for the benefit of the Class or
Classes of Certificateholders and (ii) for the benefit of the [_____] B Loan
Noteholder entitled thereto. Any Excess Liquidation Proceeds shall be identified
separately from any other amounts held in each Collection Account (with amounts
attributable to each Class or Classes and the [_____] B Loan also identified
separately).
The foregoing requirements for deposits in each Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges
(subject to Section 3.12 hereof), Assumption Fees, loan modification fees, loan
service transaction fees, extension fees, demand fees, beneficiary statement
charges and similar fees need not be deposited in the Collection Account by the
Master Servicer and, to the extent permitted by applicable law, the Master
Servicer or the Special Servicer, as applicable in accordance with Section 3.12
hereof, shall be entitled to retain any such charges and fees received with
respect to the Mortgage Loans that it is servicing as additional compensation.
In the event that the Master Servicer deposits in its Collection Account any
amount not required to be deposited therein, they may at any time withdraw such
amount from its Collection Account, any provision herein to the contrary
notwithstanding.
Upon receipt of any of the amounts described in clauses (i), (ii),
(v), (vi) and (vii) above with respect to any Specially Serviced Loan which is
not an REO Loan, the Special Servicer shall remit within one Business Day after
receipt such amounts to the Master Servicer for deposit into its Collection
Account in accordance with the second paragraph of this Section 3.05, unless the
Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an REO Property (other than any REO Property related to the Loan
Combination) shall be deposited by the Special Servicer into the REO Account and
remitted to the Master Servicer for deposit into its Collection Account pursuant
to Section 3.17(b). 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 Master Servicer and shall promptly
deliver any such check to the Master Servicer by overnight courier.
(b) The Trustee shall establish and maintain the Lower-Tier
Distribution Account in its own name, in trust for the benefit of the
Certificateholders and the Trustee as the Holder of the Lower-Tier Regular
Interests. The Lower-Tier Distribution Account shall be established and
maintained as an Eligible Account or as a subaccount of an Eligible Account.
(c) The Trustee shall establish and maintain the Grantor Trust
Distribution Account with respect to the Loan REMIC Residual Interest, which
shall be an asset of the Grantor Trust and beneficially owned by the Holders of
the [Class LR] Certificates and shall not be an asset of the Lower-Tier REMIC or
the Upper-Tier REMIC. The Grantor Trust Distribution
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Account shall be established and maintained as an Eligible Account or as a
subaccount of an Eligible Account.
(d) With respect to each Distribution Date, the Master Servicer
shall deliver to the Trustee on or before the Master Servicer Remittance Date
the funds then on deposit in its Collection Account after giving effect to
withdrawals of funds pursuant to Section 3.06. Upon receipt from the Master
Servicer of such amounts held in its Collection Account, the Trustee shall
deposit in the Lower-Tier Distribution Account (i) the amount of Available Funds
to be distributed pursuant to Section 4.01 hereof on such Distribution Date,
(ii) the Withheld Amounts to be deposited into the Interest Reserve Account
pursuant to Section 3.05(f), (iii) the amount of Excess Liquidation Proceeds
allocable to any Mortgage Loan to be deposited into the Lower-Tier Distribution
Account (which the Trustee shall then deposit in the Excess Liquidation Proceeds
Account) pursuant to Section 3.06 and (iv) the Trustee Fee which shall be
retained by the Trustee), and shall deposit in the Grantor Trust Distribution
Account the amount distributable to the [Class LR] Certificateholders with
respect to the Loan REMIC Residual Interest pursuant to the Loan REMIC
Declaration.
(e) If any Loss of Value Payments are received in connection with a
Material Defect or Material Breach, as the case may be, pursuant to or as
contemplated by Section 2.03(d), the Special Servicer shall establish and
maintain one or more non-interest bearing accounts (collectively, the "Loss of
Value Reserve Fund") to be held in trust for the benefit of the
Certificateholders, for purposes of holding such Loss of Value Payments. Each
account that constitutes the Loss of Value Reserve Fund shall be an Eligible
Account or a sub-account of an Eligible Account. The Special Servicer shall,
upon receipt, deposit in the Loss of Value Reserve Fund all Loss of Value
Payments received by it. The Trustee and the Special Servicer shall account for
the Loss of Value Reserve Fund as an outside reserve fund within the meaning of
Treasury Regulations Section 1.860G-2(h) and not an asset of any REMIC.
Furthermore, for all federal tax purposes, the Trustee and the Special Servicer
shall (i) treat amounts paid out of the Loss of Value Reserve Fund through the
Collection Account to the Certificateholders as distributions by the REMICs and
(ii) treat any amounts paid out of the Loss of Value Reserve Fund through the
Collection Account to the Mortgage Loan Seller as distributions by the Trust
Fund to such Mortgage Loan Seller as beneficial owner of the Loss of Value
Reserve Fund. The Mortgage Loan Seller will be the beneficial owner of the Loss
of Value Reserve Fund for all federal income tax purposes, and shall be taxable
on all income earned thereon.
(f) The Trustee shall establish and maintain the Interest Reserve
Account in its own name, in trust for the benefit of the Certificateholders and
the Trustee as the Holder of the Lower-Tier Regular Interests. The Interest
Reserve Account shall be established and maintained as an Eligible Account or as
a subaccount of an Eligible Account.
On the Master Servicer Remittance Date occurring in (i) January of
each calendar year that is not a leap year and (ii) February of each calendar
year, unless the Master Servicer Remittance Date is the final Servicer
Remittance Date, the Trustee shall calculate the Withheld Amounts. On each
Master Servicer Remittance Date, the Trustee shall, with respect to each
Mortgage Loan that does not accrue interest on the basis of a 360-day year of
twelve 30-day months, and also with respect to the [________] Mortgage Loan
withdraw from the Lower-Tier Distribution Account and deposit in the Interest
Reserve Account an amount equal to the
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aggregate of the Withheld Amounts calculated in accordance with the previous
sentence. If the Trustee shall deposit in the Interest Reserve Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Interest Reserve Account, any provision herein to the contrary
notwithstanding. On or prior to the Master Servicer Remittance Date in March of
each calendar year, the Trustee shall transfer to the Lower-Tier Distribution
Account the aggregate of all Withheld Amounts on deposit in the Interest Reserve
Account.
(g) The Trustee shall establish and maintain the Upper-Tier
Distribution Account in its own name, in trust for the benefit of the
Certificateholders. The Upper-Tier Distribution Account shall be established and
maintained as an Eligible Account or a subaccount of an Eligible Account.
Promptly on each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account and deposit in the Upper-Tier Distribution
Account on or before such date the Lower-Tier Distribution Amount and the amount
of any Prepayment Premiums and Yield Maintenance Charges for such Distribution
Date to be distributed in respect of the Lower-Tier Regular Interests pursuant
to Section 4.01(a)(ii) and Section 4.01(c) hereof on such date.
(h) With respect to the Loan Combination, the Master Servicer shall
maintain, or cause to be maintained, the Loan Combination Collection Account in
which the Master Servicer shall deposit or cause to be deposited within one
Business Day following receipt the following payments and collections received
or made by or on behalf of it on such Loan Combination subsequent to the Cut-off
Date:
(i) all payments on account of principal on such Loan Combination,
including the principal component of Unscheduled Payments;
(ii) all payments on account of interest on such Loan Combination
(net of the related Servicing Fees), including Prepayment Premiums,
Default Interest, Yield Maintenance Charges and the interest component of
all Unscheduled Payments;
(iii) any amounts required to be deposited pursuant to Section
3.07(b), in connection with net losses realized on Permitted Investments
with respect to funds held in such Loan Combination Collection Account;
(iv) all Net REO Proceeds withdrawn from the related REO Account in
respect of such Loan Combination pursuant to Section 3.17(b);
(v) any amounts received from Borrowers which represent recoveries
of Property Protection Expenses and are allocable to such Loan
Combination, to the extent not permitted to be retained by the Master
Servicer as provided herein;
(vi) all Insurance Proceeds and Liquidation Proceeds received in
respect of such Loan Combination or any related REO Property, other than
Excess Liquidation Proceeds and Liquidation Proceeds that are received in
connection with a purchase of all the Mortgage Loans and any REO
Properties in the Trust Fund and that are to be deposited in the
Lower-Tier Distribution Account pursuant to Section 9.01, together with
any amounts representing recoveries of Nonrecoverable Advances, including
any recovery of Unliquidated Advances, in respect of such Loan
Combination; provided
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further, however, that any Liquidation Proceeds related to a sale pursuant
to Section 3.18 hereof or pursuant to the related Co-Lender Agreement of a
Mortgage Loan included in the Loan Combination shall be deposited directly
into the Collection Account and applied solely to pay expenses relating to
that Mortgage Loan and to Available Funds;
(vii) Penalty Charges on such Loan Combination to the extent
required to offset interest on Advances and Additional Trust Fund Expenses
pursuant to Section 3.12(d);
(viii) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.08(b) in connection with
losses resulting from a deductible clause in a blanket or master
force-placed policy in respect of the Mortgage Loan included in such Loan
Combination;
(ix) any other amounts required by the provisions of this Agreement
to be deposited into the Loan Combination Collection Account by the Master
Servicer or Special Servicer; and
(x) any Servicer Prepayment Interest Shortfalls in respect of the
Mortgage Loan included in such Loan Combination pursuant to Section
4.01(i).
The foregoing requirements for deposits into the Loan Combination
Collection Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, payments in the nature of late
payment charges (subject to Section 3.12 hereof), Assumption Fees, loan
modification fees, loan service transaction fees, extension fees, demand fees,
beneficiary statement charges and similar fees need not be deposited into the
Loan Combination Collection Account by the Master Servicer and, to the extent
permitted by applicable law, the Master Servicer or the Special Servicer, as
applicable in accordance with Section 3.12 hereof, shall be entitled to retain
any such charges and fees received with respect to the Loan Combination as
additional compensation. In the event that the Master Servicer deposits in the
Loan Combination Collection Account any amount not required to be deposited
therein, it may at any time withdraw such amount from such Loan Combination
Collection Account, any provision herein to the contrary notwithstanding.
The Loan Combination Collection Account shall be maintained as a
segregated account, separate and apart from any trust fund created for
mortgage-backed securities of other series and the other accounts of the Master
Servicer; provided, however, that such Loan Combination Collection Account may
be a sub-account of the Collection Account but shall, for purposes of this
Agreement, be treated as a separate account. The Loan Combination Collection
Account shall be established and maintained as an Eligible Account or as a
subaccount of an Eligible Account.
Upon receipt of any of the foregoing amounts described in clauses
(i), (ii), (v) and (vi) above with respect to the Loan Combination for so long
as it is a Specially Serviced Loan but is not an REO Loan, the Special Servicer
shall remit within one Business Day such amounts to the Master Servicer for
deposit into the Loan Combination Collection Account in accordance with the
first paragraph of this Section 3.05(h), unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement or other appropriate reason. Any
such amounts received by the Special
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Servicer with respect to an REO Property related to the Loan Combination shall
initially be deposited by the Special Servicer into the Loan Combination REO
Account and remitted to the Master Servicer for deposit into the Loan
Combination Collection Account pursuant to Section 3.17(b). 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 Master Servicer and shall promptly deliver any such check to the Master
Servicer by overnight courier.
(i) Notwithstanding anything to the contrary contained herein with
respect to each Due Date and the [_____] B Loan, within one Business Day of
receipt from the Borrower, the Master Servicer shall remit, from amounts on
deposit in the Loan Combination Collection Account in accordance with Section
3.06(c)(i)(A), to the applicable [_____] B Loan Noteholder by wire transfer in
immediately available funds to the account of such [_____] B Loan Noteholder or
an agent therefor appearing on the [_____] B Loan Noteholder Register on the
related date such amounts as are required to be remitted (or, if no such account
so appears or information relating thereto is not provided at least [five] [(5)]
Business Days prior to the date such amounts are required to be remitted, by
check sent by first-class mail to the address of such [_____] B Loan Noteholder
or its agent appearing on the [_____] B Loan Noteholder Register) the portion of
the Loan Combination Remittance Amount allocable to such [_____] B Loan
Noteholder.
(j) Prior to the Master Servicer Remittance Date relating to any
Collection Period in which Excess Liquidation Proceeds are received, the Trustee
shall establish and maintain the Excess Liquidation Proceeds Account, which may
have one or more subaccounts, to be held in its own name, in trust for the
benefit of the Certificateholders and, with respect to the Loan Combination, the
[_____] B Loan Noteholder. Each account that constitutes an Excess Liquidation
Proceeds Account shall be an Eligible Account. On the Master Servicer Remittance
Date, the Master Servicer shall withdraw from the Collection Account or, if
allocable to the Loan Combination, the Master Servicer shall withdraw from the
Loan Combination Collection Account, and remit to the Trustee (i) in the case of
the Mortgage Loans (other than the Loan Combination), for deposit in the
Lower-Tier Distribution Account (which the Trustee shall then deposit in the
Excess Liquidation Proceeds Account) and (ii) in the case of the Loan
Combination, for deposit in the Excess Liquidation Proceeds Account, all Excess
Liquidation Proceeds received during the Collection Period ending on the
Determination Date immediately prior to the Master Servicer Remittance Date
which are allocable to a Mortgage Loan or Loan Combination; provided that on the
Business Day prior to the final Distribution Date, the Trustee shall withdraw
from the Excess Liquidation Proceeds Account and deposit in the Lower-Tier
Distribution Account (after allocation to any related [_____] B Loan as provided
in Section 4.01(e)), for distribution on such Distribution Date, any and all
amounts then on deposit in the Excess Liquidation Proceeds Account attributable
to the Mortgage Loans.
(k) Funds in the Collection Account, the Loan Combination Collection
Account and the REO Account may be invested in Permitted Investments in
accordance with the provisions of Section 3.07. Funds held in the Distribution
Accounts, the Interest Reserve Account and the Excess Liquidation Proceeds
Account shall remain uninvested.
The Master Servicer shall give written notice to the Depositor, the
Trustee, the other Servicer and the Special Servicer of the location and account
number of its Collection
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Account and, if applicable, the Loan Combination Collection Account as of the
Closing Date and shall notify the Depositor, the Special Servicer and the
Trustee, as applicable, in writing prior to any subsequent change thereof. In
addition, the Master Servicer shall provide notice to each affected holder of
the [_____] B Loan of the location and account number of the relevant Loan
Combination Collection Account as well as notice in writing prior to any
subsequent change thereof. The Trustee shall give written notice to the
Depositor, the Special Servicer and the Master Servicer of the location and
account number of the Interest Reserve Account and the Distribution Accounts as
of the Closing Date and shall notify the Depositor, the Special Servicer and the
Master Servicer, as applicable, in writing prior to any subsequent change
thereof.
Section 3.06 Permitted Withdrawals from the Collection Account, the
Distribution Accounts and the Loan Combination Collection Account; Trust Ledger.
(a) [Reserved]
(b) The Master Servicer shall maintain a separate Trust Ledger with
respect to the Mortgage Loans that it is servicing on which it shall make ledger
entries as to amounts deposited (or credited) or withdrawn (or debited) with
respect thereto. On the Master Servicer Remittance Date, with respect to each
Mortgage Loan (other than any Mortgage Loan related to the Loan Combination
unless otherwise specified in clauses (i), (ii), (v), (vi), (xi), (xii), (xiii),
(xiv), (xviii), (xix) and (xxi) of this Section 3.06(b)), the Master Servicer
shall make withdrawals from amounts allocated thereto in the Collection Account
(and may debit the Trust Ledger) for the purposes listed below (the order set
forth below not constituting an order of priority for such withdrawals). Unless
otherwise specified in this subsection references to Collection Account and
Mortgage Loans shall be references to the Collection Account and Mortgage Loans
serviced by the Master Servicer, respectively; provided that with respect to any
amount that is required to be paid in this section 3.06(b) out of general
collections on the Mortgage Loans, to the extent that as of any Servicer
Remittance Date such amounts are insufficient to pay in full the intended amount
specified in this Section 3.06(b), the remainder of such amounts will be
withdrawn from the other Collection Account and paid for by the applicable other
Servicer to its intended recipient. The Master Servicer agrees to provide
information to the other Servicer from time to time as to amounts anticipated to
be paid from the other Servicer's Collection Account:
(i) on or before 1:00 P.M. (New York City time) on the Master
Servicer Remittance Date, to remit to the Trustee the amounts to be
deposited into the Lower-Tier Distribution Account (including any amount
transferred from the Loan Combination Collection Account in respect of
each Mortgage Loan that is part of the Loan Combination) (including
without limitation the aggregate of the Available Funds, Prepayment
Premiums, Yield Maintenance Charges and Excess Liquidation Proceeds) which
the Trustee shall then deposit into the Upper-Tier Distribution Account,
the Interest Reserve Account and the Excess Liquidation Proceeds Account,
pursuant to Sections 3.05(g), 3.05(f) and 3.05(j), respectively;
(ii) to pay (A) itself, unpaid Servicing Fees (subject to Section
3.12(a)); and the Special Servicer, unpaid Special Servicing Fees,
Liquidation Fees and Workout Fees in respect of each Mortgage Loan,
Specially Serviced Loan and REO Loan (exclusive of each Mortgage Loan or
REO Loan included in the Loan Combination), as applicable, the Master
Servicer's or Special Servicer's, as applicable, rights to payment of
Servicing
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Fees and Special Servicing Fees, Liquidation Fees and Workout Fees
pursuant to this clause (ii)(A) with respect to any Mortgage Loan,
Specially Serviced Loan or REO Loan (exclusive of each Mortgage Loan or
REO Loan included in the Loan Combination), as applicable, being limited
to amounts received on or in respect of such Mortgage Loan, Specially
Serviced Loan or REO Loan, as applicable (whether in the form of payments,
Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds), that
are allocable as recovery of interest thereon and (B) each month to the
Special Servicer any unpaid Special Servicing Fees, Liquidation Fees and
Workout Fees in respect of each Specially Serviced Loan or REO Loan, as
applicable, remaining unpaid out of general collections on the Mortgage
Loans, Specially Serviced Loans and REO Properties, but in the case of the
Loan Combination, only to the extent that amounts on deposit in the Loan
Combination Collection Account are insufficient therefor;
(iii) to reimburse itself or the Trustee, as applicable (in reverse
of such order with respect to any Mortgage Loan), for xxxxxxxxxxxx X&X
Advances (other than Nonrecoverable Advances, which are reimbursable
pursuant to clause (v) below, and exclusive of the Mortgage Loans or REO
Loans included in the Loan Combination), the Master Servicer's or the
Trustee's right to reimbursement pursuant to this clause (iii) being
limited to amounts received which represent Late Collections for the
applicable Mortgage Loan (exclusive of the Mortgage Loan or REO Loan
included in the Loan Combination) during the applicable period; provided,
however, that if such P&I Advance becomes a Workout-Delayed Reimbursement
Amount, then such P&I Advance shall thereafter be reimbursed from the
portion of general collections and recoveries on or in respect of all of
the Mortgage Loans and REO Properties on deposit in the Collection Account
from time to time that represent collections or recoveries of principal to
the extent provided in clause (v) below;
(iv) to reimburse itself and the Special Servicer or the Trustee, as
applicable (in reverse of such order with respect to any Mortgage Loan or
REO Property) (exclusive of the Mortgage Loans or REO Loans included in
the Loan Combination or any REO Property securing the Loan Combination),
for unreimbursed Property Advances, the Master Servicer's, the Special
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, payments received from the related
Borrower which represent reimbursements of such Property Advances,
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds and REO
Proceeds with respect to the applicable Mortgage Loan or REO Property;
provided, however, that if such Property Advance becomes a Workout-Delayed
Reimbursement Amount, then such Property Advance shall thereafter be
reimbursed from the portion of general collections and recoveries on or in
respect of the Mortgage Loans and REO Properties on deposit in the
Collection Account from time to time that represent collections or
recoveries of principal to the extent provided in clause (v) below;
(v) (1) to reimburse itself, and the Special Servicer or the
Trustee, as applicable (in reverse of such order with respect to any
Mortgage Loan or REO Property), (x) with respect to Nonrecoverable
Advances, first, out of Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds and REO Proceeds received on
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the related Mortgage Loan and related REO Properties, second, out of the
principal portion of general collections on the Mortgage Loans and REO
Properties, and then, to the extent the principal portion of general
collections is insufficient and with respect to such deficiency only,
subject to any election at its sole discretion to defer reimbursement
thereof pursuant to Section 3.06(b), out of other collections on the
Mortgage Loans and REO Properties and (y) with respect to the
Workout-Delayed Reimbursement Amounts, out of the principal portion of the
general collections on the Mortgage Loans and REO Properties, net of such
amounts being reimbursed pursuant to the preceding clause (x) above, but
in the case of either clause (x) or (y) above with respect to the Loan
Combination, only to the extent that amounts on deposit in the Loan
Combination Collection Account are insufficient therefor after taking into
account any allocation set forth in the related Co-Lender Agreement and
(2) to pay itself or the Special Servicer out of general collections on
the Mortgage Loans and REO Properties, with respect to any Mortgage Loan
or REO Property any related earned Servicing Fee, Special Servicing Fee,
Liquidation Fee or Workout Fee, as applicable, 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 Collection Account of all amounts received in connection
therewith, but in the case of the Loan Combination, only to the extent
that amounts on deposit in the Loan Combination Collection Account are
insufficient therefor;
(vi) at such time as it reimburses itself and the Special Servicer
or the Trustee, as applicable (in reverse of such order with respect to
any Mortgage Loan or REO Property), for (1) any xxxxxxxxxxxx X&X Advance
(including any such P&I Advance that constitutes a Workout-Delayed
Reimbursement Amount) made with respect to a Mortgage Loan pursuant to
clause (iii) above, to pay itself or the Trustee, as applicable, any
Advance Interest Amounts accrued and payable thereon, (2) any unreimbursed
Property Advances (including any such Advance that constitutes a
Workout-Delayed Reimbursement Amount) made with respect to a Mortgage Loan
or REO Property pursuant to clause (iv) above, to pay itself, the Special
Servicer or the Trustee, as the case may be, any Advance Interest Amounts
accrued and payable thereon or (3) any Nonrecoverable P&I Advances made
with respect to a Mortgage Loan or REO Property and any Nonrecoverable
Property Advances made with respect to a Mortgage Loan or REO Property
pursuant to clause (v) above, to pay itself, the Special Servicer or the
Trustee, as the case may be, any Advance Interest Amounts accrued and
payable thereon, in each case first from Penalty Charges as provided in
Section 3.12(d), but in the case of the Loan Combination only to the
extent that such Nonrecoverable Advance has been reimbursed and only to
the extent that amounts on deposit in the Loan Combination Collection
Account are insufficient therefor after taking into account any allocation
set forth in the related Co-Lender Agreement;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect giving rise to a repurchase
obligation of the Mortgage Loan Seller under Section 6 of the applicable
Mortgage Loan Purchase Agreement, including, without limitation, any
expenses arising out of the enforcement of the repurchase obligation,
together with interest thereon at the Advance Rate, each such Person's
right to
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reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan (exclusive of any Mortgage Loan included in the Loan Combination)
being limited to that portion of the Repurchase Price paid for such
Mortgage Loan that represents such expense in accordance with clause (e)
of the definition of Repurchase Price;
(viii) to pay itself all Prepayment Interest Excesses on the
Mortgage Pool (exclusive of any Mortgage Loan or the REO Loan included in
the Loan Combination) not required to be used pursuant to Section 3.19(c);
(ix) (A) to pay itself, as additional servicing compensation in
accordance with Section 3.12(a), (1) interest and investment income earned
in respect of amounts relating to the Trust Fund held in its Collection
Account as provided in Section 3.07(b) (but only to the extent of the net
investment earnings with respect to the Collection Account for any period
from any Distribution Date to the immediately succeeding Servicer
Remittance Date) and (2) Penalty Charges on the Mortgage Loans (other than
Specially Serviced Loans) (exclusive of any Mortgage Loan or REO Loan
included in the Loan Combination), (but only to the extent collected from
the related Borrower 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 in accordance with Section 3.12
and/or Additional Trust Fund Expenses); and (B) to pay the Special
Servicer, as additional servicing compensation in accordance with Section
3.12(c), Penalty Charges on Specially Serviced Loans (exclusive of any
Mortgage Loan or the REO Loan included in the Loan Combination) (but only
to the extent collected from the related Borrower and to the extent that
all amounts then due and payable with respect to the related Specially
Serviced Loan have been paid and are not needed to pay interest on
Advances, all in accordance with Section 3.12);
(x) [Reserved];
(xi) 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), and in the case of the Loan Combination only
to the extent that such amounts on deposit in the Loan Combination
Collection Account are insufficient therefor after taking into account any
allocation set forth in the related Co-Lender Agreement;
(xii) to pay for the cost of the Opinions of Counsel contemplated by
Sections 3.10(e), 3.10(f), 3.17(a), 3.17(b) and 10.07 (and in the case of
the Loan Combination only to the extent that such amounts on deposit in
the Loan Combination Collection Account are insufficient therefor after
taking into account any allocation set forth in the related Co-Lender
Agreement but exclusive of amounts relating solely to the related B Loan);
(xiii) 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 Master Servicer, the Special Servicer or
the Trustee is liable therefor pursuant to this Agreement, except to the
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extent such amounts relate solely to the Loan Combination, in which case,
such amounts will be reimbursed first from the Loan Combination Collection
Account(s) in accordance with Section 3.06(c) and then out of general
collections on the Mortgage Loans;
(xiv) to reimburse the Trustee out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund, except to the extent such amounts
relate solely to the Loan Combination, in which case, such amounts will be
reimbursed first, from the Loan Combination Collection Account(s) in
accordance with Section 3.06(c) and then, out of general collections on
the Mortgage Loans;
(xv) to pay any Person permitted to purchase a Mortgage Loan under
Section 3.18 with respect to each Mortgage Loan (exclusive of any Mortgage
Loan included in the Loan Combination), 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;
(xvi) [Reserved];
(xvii) [Reserved]
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, any amount specifically
required to be paid to such Person at the expense of the Trust Fund under
any provision of this Agreement to which reference is not made in any
other clause of this Section 3.06(b) (and in the case of the Loan
Combination only to the extent that such amounts on deposit in the Loan
Combination Collection Account are insufficient therefor after taking into
account any allocation set forth in the related Co-Lender Agreement), it
being acknowledged that this clause (xviii) shall not be construed to
modify any limitation or requirement otherwise set forth in this Agreement
as to the time at which any Person is entitled to payment or reimbursement
of any amount or as to the funds from which any such payment or
reimbursement is permitted to be made;
(xix) to withdraw from the Collection Account any sums deposited
therein in error and pay such sums to the Persons entitled thereto
(including any amounts relating to a Mortgage Loan that is part of the
Loan Combination);
(xx) [Reserved];
(xxi) to pay from time to time to itself in accordance with Section
3.07(b) any interest or investment income earned on funds deposited in its
Collection Account;
(xxii) [Reserved];
(xxiii) to transfer Excess Liquidation Proceeds allocable to
Mortgage Loans to the Lower-Tier Distribution Account for deposit by the
Trustee into the Excess Liquidation Proceeds Account in accordance with
Section 3.05(j);
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(xxiv) to pay itself, the Special Servicer or the Mortgage Loan
Seller, as the case may be, with respect to each Mortgage Loan, if any,
previously purchased or substituted (i.e., replaced) by such Person
pursuant to or as contemplated by this Agreement, all amounts received on
such Mortgage Loan subsequent to the date of purchase or substitution,
and, in the case of a substitution, with respect to the related Qualifying
Substitute Mortgage Loan(s), all Monthly Payments due thereon during or
prior to the month of substitution, in accordance with the third paragraph
of Section 2.03(f); and
(xxv) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall pay to the Special Servicer from its
Collection Account amounts permitted to be paid to it therefrom promptly upon
receipt of a certificate of a Servicing Officer of the Special Servicer
describing the item and amount to which the Special Servicer is entitled. The
Master Servicer may rely conclusively on any such certificate and shall have no
duty to re-calculate the amounts stated therein. The Special Servicer shall keep
and maintain separate accounting for each Specially Serviced Loan and REO Loan
and the related [_____] B Loan, on a loan-by-loan and property-by-property
basis, for the purpose of justifying any request for withdrawal from the
Collection Account.
The Master Servicer shall keep and maintain separate accounting
records, on a Mortgage Loan by Mortgage Loan basis, reflecting amounts allocable
to each Mortgage Loan, and on a property-by-property basis when appropriate, for
the purpose of justifying any withdrawal, debit or credit from its Collection
Account or the Trust Ledger.
The Master Servicer shall pay to the Trustee, the other Servicer or
the Special Servicer from the Collection Account amounts permitted to be paid to
the Trustee, the other Servicer or the Special Servicer therefrom, promptly upon
receipt of a certificate of a Responsible Officer of the Trustee or a
certificate of a Servicing Officer, as applicable, describing the item and
amount to which such Person is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to recalculate the
amounts stated therein.
The Trustee, the Special Servicer, the Master Servicer shall in all
cases have a right prior to the Certificateholders to any funds on deposit in
the Collection Account from time to time for the reimbursement or payment of the
Servicing Compensation (including investment income), Trustee Fees, Special
Servicing Compensation, Advances, Advance Interest Amounts, their respective
indemnification payments (if any) pursuant to Section 6.03, Section 8.05 or
Section 10.12, their respective expenses hereunder to the extent such fees and
expenses are to be reimbursed or paid from amounts on deposit in the Collection
Account pursuant to this Agreement. In addition, the Trustee, the Special
Servicer and the Master Servicer shall in all cases have a right prior to the
Certificateholders to any funds on deposit in the Collection Account from time
to time for the reimbursement or payment of any federal, state or local taxes
imposed on the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC.
Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections on the
Mortgage Loans (or with respect to Property
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Advances, the Loan Combination) deposited in both Collection Accounts (or the
Loan Combination Collection Account) as applicable, and available for
distribution on the next Distribution Date, the Master Servicer, the Special
Servicer or the Trustee, each at its own option and in its sole discretion, as
applicable, instead of obtaining reimbursement for the remaining amount of such
Nonrecoverable Advance pursuant to Section 3.06(b) or Section 3.06(c)
immediately, may elect to refrain from obtaining such reimbursement for such
portion of the Nonrecoverable Advance during the Collection Period ending on the
then-current Determination Date for successive one-month periods for a total
period not to exceed 12 months (provided, however, that any deferment over six
months will require the consent of the Controlling Class Representative). If the
Master Servicer (or the Special Servicer or the Trustee) makes such an election
at its sole option and in its sole discretion to defer reimbursement with
respect to all or a portion of a Nonrecoverable Advance (together with interest
thereon), then such Nonrecoverable Advance (together with interest thereon) or
portion thereof shall continue to be fully reimbursable in the subsequent
Collection Period (subject, again, to the same sole discretion to elect to
defer; it is acknowledged that, in such a subsequent period, such Nonrecoverable
Advance shall again be payable first from principal collections as described
above prior to payment from other collections). In connection with a potential
election by the Master Servicer (or the Special Servicer or the Trustee) to
refrain from the reimbursement of a particular Nonrecoverable Advance or portion
thereof during the one-month Collection Period ending on the related
Determination Date for any Distribution Date, the Master Servicer (or the
Special Servicer or the Trustee) shall further be authorized to wait for
principal collections on the Mortgage Loans and [_____] B Loan to be received
before making its determination of whether to refrain from the reimbursement of
a particular Nonrecoverable Advance or portion thereof) until the end of such
Collection Period; provided, however, if, at any time the Master Servicer, the
Special Servicer or the Trustee, as applicable, elects not to refrain from
obtaining such reimbursement or otherwise determines that the reimbursement of a
Nonrecoverable Advance during a Collection Period will exceed the full amount of
the principal portion of general collections deposited in the Collection
Accounts or, with respect to the Loan Combination, the full amount of the
principal portion deposited in the Loan Combination Collection Account, as
applicable, for such Distribution Date, then the Master Servicer, the Special
Servicer or the Trustee, as applicable, shall use its reasonable efforts to give
the Rating Agencies 15 days' notice of such determination, unless extraordinary
circumstances make such notice impractical.
The foregoing shall not, however, be construed to limit any
liability that may otherwise be imposed on such Person for any failure by such
Person to comply with the conditions to making such an election under this
Section 3.06(b) or to comply with the terms of this Section 3.06(b) and the
other provisions of this Agreement that apply once such an election, if any, has
been made. If the Master Servicer, the Special Servicer or the Trustee, as
applicable, determines, in its sole discretion, that its ability to fully
recover the Nonrecoverable Advances has been compromised, then the Master
Servicer, the Special Servicer or the Trustee, as applicable, shall be entitled
to immediate reimbursement of Nonrecoverable Advances with interest thereon at
the Advance Rate from all amounts in the Collection Accounts for such
Distribution Date. Any such election by any such party to refrain from
reimbursing itself or obtaining reimbursement for any Nonrecoverable Advance or
portion thereof with respect to any one or more Collection Periods shall not
limit the accrual of interest at the Advance Rate on such Nonrecoverable Advance
for the period prior to the actual reimbursement of such Nonrecoverable Advance.
The Master Servicer's, the Special Servicer's or the Trustee's, as
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applicable, agreement to defer reimbursement of such Nonrecoverable Advances as
set forth above is an accommodation to the Certificateholders and, as
applicable, the [_____] B Loan Noteholder and shall not be construed as an
obligation on the part of the Master Servicer, the Special Servicer or the
Trustee, as applicable, or a right of the Certificateholders or the [_____] B
Loan Noteholder. Nothing herein shall be deemed to create in the
Certificateholders and the [_____] B Loan Noteholder a right to prior payment of
distributions over the Master Servicer's, the Special Servicer's or the
Trustee's, as applicable, right to reimbursement for Advances (deferred or
otherwise). In all events, the decision to defer reimbursement or to seek
immediate reimbursement of Nonrecoverable Advances shall be deemed to be in
accordance with the Servicing Standard and neither the Master Servicer, the
Special Servicer, the Trustee nor the other parties to this Agreement shall have
any liability to one another or to any of the Certificateholders or any of the
[_____] B Loan Noteholder for any such election that such party makes as
contemplated by this Section 3.06(b) or for any losses, damages or other adverse
economic or other effects that may arise from such an election.
None of the Master Servicer or the Trustee shall be permitted to
reverse any other Person's determination that an Advance is a Nonrecoverable
Advance.
If the Master Servicer, the Special Servicer or the Trustee, as
applicable, is reimbursed out of general collections for any unreimbursed
Advances that are determined to be Nonrecoverable Advances (together with any
interest accrued and payable thereon), then (for purposes of calculating
distributions on the Certificates) such reimbursement and payment of interest
shall be deemed to have been made: first, out of the Principal Distribution
Amount, which, but for its application to reimburse a Nonrecoverable Advance
and/or to pay interest thereon, would be included in Available Funds for any
subsequent Distribution Date, and second, out of other amounts which, but for
their application to reimburse a Nonrecoverable Advance and/or to pay interest
thereon, would be included in Available Funds for any subsequent Distribution
Date.
If and to the extent that any payment is deemed to be applied as
contemplated in the paragraph above to reimburse a Nonrecoverable Advance or to
pay interest thereon, then the Principal Distribution Amount for such
Distribution Date shall be reduced, to not less than zero, by the amount of such
reimbursement. If and to the extent (i) any Advance is determined to be a
Nonrecoverable Advance, (ii) such Advance and/or interest thereon is reimbursed
out of the Principal Distribution Amount as contemplated above and (iii) the
particular item for which such Advance was originally made is subsequently
collected out of payments or other collections in respect of the related
Mortgage Loan, then the Principal Distribution Amount for the Distribution Date
that corresponds to the Collection Period in which such item was recovered shall
be increased by an amount equal to the lesser of (A) the amount of such item and
(B) any previous reduction in the Principal Distribution Amount for a prior
Distribution Date as contemplated in the paragraph above resulting from the
reimbursement of the subject Advance and/or the payment of interest thereon.
To the extent a Nonrecoverable Advance with respect to a Mortgage
Loan is required to be reimbursed from the principal portion of the general
collections on the Mortgage Loans, such reimbursement shall be made first, from
the principal collections available on the Mortgage Loans included in the same
Loan Group as such Mortgage Loan and if the principal collections in such Loan
Group are not sufficient to make such reimbursement in full, then from
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the principal collections available in the other Loan Group (after giving effect
to any reimbursement of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts related to such other Loan Group). To the extent the
Principal Distribution Amount for a Distribution Date is increased due to
subsequent recovery of an Advance previously determined to be Nonrecoverable,
such increase shall be allocated first to the principal collections in the Loan
Group with respect to which the Mortgage Loan as to which the related
Nonrecoverable Advance was made does not belong, and then to the Loan Group with
respect to which the Mortgage Loan as to which the related Nonrecoverable
Advance was made does belong.
To the extent a Workout-Delayed Reimbursement Amount with respect to
a Mortgage Loan is required to be reimbursed from the principal portion of the
general collections on the Mortgage Loans, such reimbursement shall be made
first, from the principal collections available on the Mortgage Loans included
in the same Loan Group as such Mortgage Loan and, if the principal collections
in such Loan Group are not sufficient to make such reimbursement in full, then
from the principal collections available in the other Loan Group (after giving
effect to any reimbursement of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts related to such other Loan Group). To the extent the
Principal Distribution Amount for a Distribution Date is increased as set forth
in preceding paragraph, such increase shall be allocated first to the principal
collections in the Loan Group with respect to which the Mortgage Loan as to
which the related Workout-Delayed Reimbursement Amount was reimbursed does not
belong, and then to the Loan Group with respect to which the Mortgage Loan as to
which the related Workout-Delayed Reimbursement Amount was reimbursed does
belong.
(c) The Master Servicer may (and, with respect to clause (i),
shall), from time to time, make withdrawals from the Loan Combination Collection
Account, for any of the following purposes (the order set forth below not
constituting an order of priority for such withdrawals); provided that all
references in this Section 3.06(c) to remittances to a Collection Account shall
mean the Collection Account maintained by the Master Servicer; and provided,
further, that with respect to any amount that is required to be paid in this
section 3.06(c) out of general collections on the Mortgage Loans from the
Collection Account, to the extent that such amounts are insufficient to pay in
full the intended amount specified in this Section 3.06(c), the remainder of
such amounts will be withdrawn from the other Collection Account and paid for by
the applicable other Servicer to its intended recipient:
(i) to make remittances each month as and when required in an
aggregate amount of immediately available funds equal to the allocable
portion of the Loan Combination Remittance Amount to (A) the [_____] B
Loan Noteholder in accordance with Section 3.05(i) and (B) the Collection
Account for the benefit of the Trust in accordance with Section 4.06(b),
in each case in accordance with the related Co-Lender Agreement (provided
that Liquidation Proceeds relating to the repurchase of the [_____] B Loan
by the related seller thereof shall be remitted solely to the holder of
such [_____] B Loan, as the case may be, and Liquidation Proceeds relating
to the repurchase of a Mortgage Loan related to the Loan Combination by
the Mortgage Loan Seller shall be remitted solely to the Collection
Account; provided, however, that any Liquidation Proceeds related to a
sale pursuant to Section 3.18 hereof or pursuant to the related Co-Lender
Agreement of a Mortgage Loan included in the Loan Combination shall be
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deposited directly into the Collection Account and applied solely to pay
expenses relating to that Mortgage Loan and to Available Funds;
(ii) (A) to pay itself unpaid Servicing Fees and the Special
Servicer unpaid Special Servicing Fees, Liquidation Fees and Workout Fees
in respect of such Loan Combination and related REO Loan, as applicable,
the Master Servicer's or Special Servicer's, as applicable, rights to
payment of Servicing Fees pursuant to this clause (ii)(A) with respect to
such Loan Combination or related REO Loan, as applicable, being limited to
amounts received on or in respect of such Loan Combination (whether in the
form of payments, Liquidation Proceeds, Insurance Proceeds or Condemnation
Proceeds), or such REO Loan (whether in the form of REO Proceeds,
Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds), that
are allocable as recovery of interest thereon and (B) each month to the
Special Servicer any unpaid Special Servicing Fees, Liquidation Fees and
Workout Fees in respect of such Loan Combination or REO Loan, as
applicable, remaining unpaid out of general collections in the Collection
Account as provided in Section 3.06(b)(ii);
(iii) to reimburse itself or the Trustee for xxxxxxxxxxxx X&X
Advances with respect to the applicable Mortgage Loan, the Master
Servicer's and the Trustee's right to reimbursement pursuant to this
clause (iii) being limited to amounts received in the Loan Combination
Collection Account which represent Late Collections received in respect of
such Mortgage Loan or the [_____] B Loan, as applicable (as allocable
thereto pursuant to the related Loan Documents and the related Co-Lender
Agreement), during the applicable period; provided, however, that to the
extent such amounts are insufficient to repay such P&I Advances on any
Mortgage Loan as to which there is a related B Loan, such P&I Advances may
be reimbursed from collections on the Loan Combination allocable to such B
Loan; provided, further, however, that if such P&I Advance on the
applicable Mortgage Loan becomes a Workout-Delayed Reimbursement Amount,
then such P&I Advance shall thereafter be reimbursed from the portion of
general collections and recoveries on or in respect of the Mortgage Loans
and REO Properties on deposit in the Collection Account from time to time
that represent collections or recoveries of principal to the extent
provided in Section 3.06(b)(v) above;
(iv) to reimburse itself, the Trustee or the Special Servicer, as
applicable (in reverse of such order with respect to such Loan Combination
or REO Property), for unreimbursed Property Advances with respect to such
Loan Combination or related REO Property, the Master Servicer's, the
Trustee's or the Special Servicer's respective rights to receive payment
pursuant to this clause (iv) being limited to, as applicable, related
payments by the applicable Borrower with respect to such Property Advance,
Liquidation Proceeds, Insurance Proceeds and Condemnation Proceeds and REO
Proceeds with respect to such Loan Combination; provided, however, that if
such Property Advance becomes a Workout-Delayed Reimbursement Amount, then
such Property Advance shall thereafter be reimbursed from the portion of
general collections and recoveries on or in respect of the Mortgage Loans
and REO Properties on deposit in the Collection Account from time to time
that represent collections or recoveries of principal to the extent
provided in clause (v) below, provided that the Master Servicer shall
collect the Workout-Delayed Reimbursement Amount first, from collections
on, and proceeds of the
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applicable B Loan, if any, and second, to the extent such Workout-Delayed
Reimbursement Amount remains unreimbursed, from the related Mortgage Loan;
(v) (A) to reimburse itself, the Special Servicer, the Trustee (in
reverse of such order with respect to such Loan Combination or related REO
Property), as applicable (x) with respect to Nonrecoverable Advances,
first, out of Liquidation Proceeds, Insurance Proceeds, Condemnation
Proceeds and REO Proceeds received on the Loan Combination and related REO
Properties, and second, out of general collections in the Collection
Account as provided in Section 3.06(b) and (y) with respect to the Workout
Delayed Reimbursement Amounts, first, out of the principal portion of the
general collections on the Loan Combination and REO Properties, net of
such amounts being reimbursed pursuant to the subclause first in the
preceding clause (x) above and second out of general collections in the
Collection Account as provided in Section 3.06(b); provided that in the
case of both clause (x) and clause (y) of this clause (v), such
reimbursements shall be made first, from collections on, and proceeds of
the applicable B Loan, if any, and then from collections on, and proceeds
of the related Mortgage Loan or (B) to pay itself or the Special Servicer
out of general collections on such Loan Combination and related REO
Properties, with respect to any Mortgage Loan or Mortgage Loans or REO
Property any related earned Servicing Fee, Special Servicing Fee,
Liquidation Fee or Workout Fee, as applicable, that remained unpaid in
accordance with clause (ii) above following a Final Recovery Determination
made with respect to such Loan Combination or related REO Property and the
deposit into the Loan Combination Collection Account of all amounts
received in connection therewith, such party's rights to reimbursement
pursuant to this clause (v) with respect to any such Nonrecoverable
Advance that is a P&I Advance, Servicing Fees, Special Servicing Fees,
Liquidation Fees or Workout Fees, as applicable, being limited (except to
the extent set forth in Section 3.06(b)) to amounts on deposit in the Loan
Combination Collection Account that were received in respect of the
particular Mortgage Loan (as allocable thereto pursuant to the related
Loan Documents and the related Co-Lender Agreement) in the Loan
Combination as to which such Nonrecoverable Advance, Servicing Fees,
Special Servicing Fees, Liquidation Fees or Workout Fees, as applicable,
were incurred (provided, however, that to the extent such amounts are
insufficient to repay such Advances on any Mortgage Loan as to which there
is a related B Loan, such P&I Advances may be reimbursed from collections
on the Loan Combination allocable to such B Loan);
(vi) at such time as it reimburses itself, the Special Servicer, the
Trustee, as applicable, first, from Penalty Charges pursuant to Section
3.12(d), then, from collections on, and proceeds of the applicable B Loan,
if any, and then, from collections on, and proceeds of the Mortgage Loan,
for (A) any xxxxxxxxxxxx X&X Advance with respect to the applicable
Mortgage Loan (including any such Advance that constitutes a
Workout-Delayed Reimbursement Amount) or any unreimbursed principal and/or
interest advance with respect to the related [_____] B Loan pursuant to
clause (iii) above, to pay itself or the Trustee, as applicable, any
Advance Interest Amounts accrued and payable thereon, (B) any unreimbursed
Property Advances (including any such Advance that constitutes a
Workout-Delayed Reimbursement Amount) pursuant to clause (iv) above, to
pay itself, the Special Servicer or the Trustee, as the case may be, any
Advance Interest Amounts
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accrued and payable thereon or (C) any Nonrecoverable Advances pursuant to
clause (v) above, to pay itself, the Special Servicer, or the Trustee any
Advance Interest Amounts accrued and payable thereon, such party's rights
to reimbursement pursuant to this clause (vi) with respect to any such
interest on P&I Advances being limited to amounts on deposit in the Loan
Combination Collection Account that were received in respect of the
particular Mortgage Loan (as allocable thereto pursuant to the related
Loan Documents and the related Co-Lender Agreement) in the Loan
Combination as to which such advance relates (provided, however, that any
Mortgage Loan as to which there is a related B Loan, such interest on P&I
Advances may be reimbursed from collections on the Loan Combination
allocable to such B Loan);
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, as applicable, for any unreimbursed expenses reasonably
incurred by such Person in respect of any Breach or Defect with respect to
the Mortgage Loan giving rise to a repurchase obligation of the Mortgage
Loan Seller under Section 6 of the applicable Mortgage Loan Purchase
Agreement, including, without limitation, any expenses arising out of the
enforcement of the repurchase obligation, together with interest thereon
at the Advance Rate, each such Person's right to reimbursement pursuant to
this clause (vii) with respect to such Loan Combination being limited to
that portion of the Repurchase Price paid for the related Mortgage Loan
that represents such expense in accordance with clause (e) of the
definition of Repurchase Price;
(viii) to pay itself all Prepayment Interest Excesses on any related
Mortgage Loan included in the Loan Combination not required to be used
pursuant to Section 3.19(c);
(ix) (A) to pay itself, as additional servicing compensation in
accordance with Section 3.12(a), (1) interest and investment income earned
in respect of amounts relating to such Loan Combination held in the Loan
Combination Collection Account as provided in Section 3.07(b) (but only to
the extent of the net investment earnings with respect to such Loan
Combination Collection Account for any period from any Distribution Date
to the immediately succeeding Servicer Remittance Date) and (2) the pro
rata portion of any Penalty Charges, as allocated in the related Co-Lender
Agreement, on the related Mortgage Loan (other than Specially Serviced
Loans) but only to the extent collected from the related Borrower and to
the extent that all amounts then due and payable with respect to the Loan
Combination have been paid and are not needed to pay interest on Advances
and/or Additional Trust Fund Expenses in accordance with Section 3.12 and
the related Co-Lender Agreement; and (B) to pay the Special Servicer, as
additional servicing compensation in accordance with the second paragraph
of Section 3.12, the pro rata portion of any Penalty Charges, as allocated
in the related Co-Lender Agreement, on the related Mortgage Loan, and to
pay to the [_____] B Loan the pro rata portion of any Penalty Charges
allocable to the related [_____] B Loan, as allocated in the related
Co-Lender Agreement, during the period it is a Specially Serviced Loan
(but only to the extent collected from the related Borrower and to the
extent that all amounts then due and payable with respect to the related
Specially Serviced Loan have been paid and are not needed to pay interest
on Advances in accordance with Section 3.12 and/or Additional Trust Fund
Expenses and in accordance with the related Co-Lender Agreement);
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(x) to recoup any amounts deposited in such Loan Combination
Collection Account in error;
(xi) 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 Sections 6.03(a) or 6.03(b), to the extent that such amounts
relate to such Loan Combination;
(xii) to pay for the cost of the Opinions of Counsel contemplated by
Sections 3.10(e), 3.10(f), 3.17(a), 3.17(b) and 10.07 to the extent
payable out of the Trust Fund as they relate to such Loan Combination;
(xiii) to pay out of general collections on such Loan Combination
and related REO Property 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, in each case to the extent that neither the Master Servicer,
the Special Servicer nor the Trustee is liable therefor pursuant to this
Agreement and only to the extent that such amounts relate to the related
Mortgage Loan or to the [_____] B Loan;
(xiv) to reimburse the Trustee out of general collections on such
Loan Combination and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund related to such Loan Combination;
(xv) to pay any Person permitted to purchase a Mortgage Loan under
Section 3.18 with respect to the Mortgage Loan included in such Loan
Combination, 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;
(xvi) to deposit in the Interest Reserve Account the amounts with
respect to the Mortgage Loan included in such Loan Combination required to
be deposited in the Interest Reserve Account pursuant to Section 3.05(f);
(xvii) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, to the extent that such
amounts relate to the Mortgage Loan included in such Loan Combination, any
amount specifically required to be paid to such Person at the expense of
the Trust Fund under any provision of this Agreement to which reference is
not made in any other clause of this Section 3.06(c), it being
acknowledged that this clause (xvii) shall not be construed to modify any
limitation or requirement otherwise set forth in this Agreement as to the
time at which any Person is entitled to payment or reimbursement of any
amount or as to the funds from which any such payment or reimbursement is
permitted to be made;
(xviii) to pay the Mortgage Loan Seller with respect to the Mortgage
Loan included in such Loan Combination, if any, previously purchased or
substituted (i.e., replaced) by such Person pursuant to or as contemplated
by this Agreement, all amounts received on such Mortgage Loan subsequent
to the date of purchase or substitution, and,
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in the case of a substitution, with respect to the related Qualifying
Substitute Mortgage Loan(s), all Monthly Payments due thereon during or
prior to the month of substitution, in accordance with the third paragraph
of Section 2.03(f); and
(xix) to clear and terminate such Loan Combination Collection
Account at the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan by loan and property-by-property basis when appropriate, for
the purpose of justifying any withdrawal from the Loan Combination Collection
Account. All withdrawals with respect to the Loan Combination shall be made
first from the Loan Combination Collection Account and then, from the Collection
Account to the extent permitted by Section 3.06(b).
The Master Servicer shall pay to the Special Servicer from the Loan
Combination Collection Account amounts permitted to be paid to it therefrom
promptly upon receipt of a certificate of a Servicing Officer of such Special
Servicer describing the item and amount to which the Special Servicer is
entitled. The Master Servicer may rely conclusively on any such certificate and
shall have no duty to re-calculate the amounts stated therein. The Special
Servicer shall keep and maintain separate accounting for each Specially Serviced
Loan included in the Loan Combination and related REO Loan, on a loan-by-loan
and property-by-property basis, for the purpose of justifying any request for
withdrawal from the Loan Combination Collection Account.
(d) On the Master Servicer Remittance Date, all income and gain
realized from investment of funds to which the Master Servicer or the Special
Servicer is entitled pursuant to Section 3.07(b) shall be subject to withdrawal
by the Master Servicer or the Special Servicer, as applicable.
(e) If any Loss of Value Payments are deposited into the Loss of
Value Reserve Fund with respect to any Mortgage Loan or any related REO
Property, then the Special Servicer shall, promptly when needed, transfer such
Loss of Value Payments (up to the remaining portion thereof) from the Loss of
Value Reserve Fund to the Master Servicer for deposit into its Collection
Account for the following purposes:
(i) to reimburse the Master Servicer, the Special Servicer or the
Trustee, in accordance with Section 3.06(b), for any Nonrecoverable
Advance made by such party with respect to such Mortgage Loan or any
related REO Property (together with interest thereon);
(ii) to pay, in accordance with Section 3.06(b), or to reimburse the
Trust for the prior payment of, any expense relating to such Mortgage Loan
or any related REO Property that constitutes or, if not paid out of such
Loss of Value Payments, would constitute an Additional Trust Fund Expense;
(iii) to offset any Realized Loss (as calculated without regard to
the application of such Loss of Value Payments) incurred with respect to
such Mortgage Loan or any related successor REO Loan;
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(iv) following the occurrence of a liquidation event with respect to
such Mortgage Loan or any related REO Property and any related transfers
from the Loss of Value Reserve Fund with respect to the items contemplated
by the immediately preceding clauses (i)-(iii) as to such Mortgage Loan,
to cover the items contemplated by the immediately preceding clauses
(i)-(iii) in respect of any other Mortgage Loan or REO Loan; and
(v) On the final Distribution Date after all distributions have been
made as set forth in clause (i) through (iv) above, to the Mortgage Loan
Seller, its pro rata share, based on the amount that it contributed, net
of any amount contributed by such Mortgage Loan Seller that was used
pursuant to clauses (i)-(iii) to offset any Realized Losses, Additional
Trust Fund Expenses or any Nonrecoverable Advances incurred with respect
to the Mortgage Loan related to such contribution.
Any Loss of Value Payments transferred to the Collection Account
pursuant to clauses (i)-(iii) of the prior paragraph shall, except for purposes
of Sections 3.12(c) and (d), be deemed to constitute Liquidation Proceeds
received by the Trust in respect of the related Mortgage Loan or any successor
REO Loan with respect thereto for which such Loss of Value Payments were
received; and any Loss of Value Payments transferred to the Collection Account
pursuant to clause (iv) of the prior paragraph shall, except for purposes of
Sections 3.12(c) and (d), be deemed to constitute Liquidation Proceeds received
by the Trust in respect of the Mortgage Loan or REO Loan for which such Loss of
Value Payments are being transferred to the Collection Account to cover an item
contemplated by clauses (i)-(iv) of the prior paragraph.
Section 3.07 Investment of Funds in the Collection Account, the Loan
Combination Collection Account, REO Account, the Lock-Box Accounts, the Cash
Collateral Accounts and the Reserve Accounts. (a) The Master Servicer (or with
respect to any REO Account, the Special Servicer) may direct any depository
institution maintaining its Collection Account, the Loan Combination Collection
Account, any Borrower Accounts (as defined below and subject to the second
succeeding sentence) and any REO Account (each, for purposes of this Section
3.07, an "Investment Account"), to invest the funds in such Investment Account
in one or more Permitted Investments that bear interest or are sold at a
discount, and that mature, unless payable on demand, no later than the Business
Day preceding the date on which such funds are required to be withdrawn from
such Investment Account pursuant to this Agreement. Any investment of funds on
deposit in an Investment Account by the Master Servicer or the Special Servicer
shall be documented in writing and shall provide evidence that such investment
is a Permitted Investment which matures at or prior to the time required hereby
or is payable on demand. In the case of any Escrow Account, Lock-Box Account,
Cash Collateral Account or Reserve Account (the "Borrower Accounts"), the Master
Servicer shall act upon the written request of the related Borrower or Manager
to the extent that the Master Servicer is required to do so under the terms of
the respective Loan Documents, provided that in the absence of appropriate
written instructions from the related Borrower or Manager meeting the
requirements of this Section 3.07, the Master Servicer shall have no obligation
to, but will be entitled to, direct the investment of funds in such accounts in
Permitted Investments. 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) or in the name of a
nominee of the Trustee. The Trustee shall have sole control (except with respect
to
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investment direction which shall be in the control of the Master Servicer or the
Special Servicer, with respect to any REO Accounts, as an independent contractor
to the Trust Fund) over each such investment and any certificate or other
instrument evidencing any such investment shall be delivered directly to the
Trustee or its agent (which shall initially be the Master Servicer), together
with any document of transfer, if any, necessary to transfer title to such
investment to the Trustee or its nominee. The Trustee shall have no
responsibility or liability with respect to the investment directions of the
Master Servicer, the Special Servicer, any Borrower or Manager or any losses
resulting therefrom, whether from Permitted Investments or otherwise. The Master
Servicer shall have no responsibility or liability with respect to the
investment directions of the Special Servicer, any Borrower or Manager or any
losses resulting therefrom, whether from Permitted Investments or otherwise. In
the event amounts on deposit in an Investment Account are at any time invested
in a Permitted Investment payable on demand, the Master Servicer (or the Special
Servicer) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer (or the Special Servicer) that such
Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the related Investment Account.
(b) All income and gain realized from investment of funds deposited
in any Investment Account shall be for the benefit of the Master Servicer
(except with respect to the investment of funds deposited in (i) any Borrower
Account, which shall be for the benefit of the related Borrower to the extent
required under the Mortgage Loan or applicable law or (ii) any REO Account,
which shall be for the benefit of the Special Servicer) and, if held in its
Collection Account, the Loan Combination Collection Account or REO Account shall
be subject to withdrawal by the Master Servicer or the Special Servicer, as
applicable, in accordance with Section 3.06 or Section 3.17(b), as applicable.
The Master Servicer, or with respect to any REO Account, the Special Servicer,
shall deposit from its own funds into its Collection Account, the Loan
Combination Collection Account or any REO Account, as applicable, the amount of
any loss incurred in respect of any such Permitted Investment immediately upon
realization of such loss; provided, however, that the Master Servicer or Special
Servicer, as applicable, may reduce the amount of such payment to the extent it
forgoes any investment income in such Investment Account otherwise payable to
it. The Master Servicer shall also deposit from its own funds in any Borrower
Account immediately upon realization of such loss the amount of any loss
incurred in respect of Permitted Investments, except to the extent that amounts
are invested at the direction of or for the benefit of the Borrower under the
terms of the Mortgage Loan, Loan Combination or applicable law.
(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 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,
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including the institution and prosecution of appropriate proceedings. In the
event the Trustee takes any such action, (i) the Master Servicer, if such
Permitted Investment was for the benefit of the Master Servicer, or (ii) the
Special Servicer, if such Permitted Investment was for the benefit of the
Special Servicer, shall pay or reimburse the Trustee for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee in connection therewith.
Section 3.08 Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage. (a) In the case of each Mortgage Loan or Loan
Combination, as applicable (but excluding any REO Loan) the Master Servicer
shall use reasonable efforts consistent with the Servicing Standard to cause the
related Borrower, with respect to the Mortgage Loans or Loan Combination that it
is servicing, to maintain (including identifying the extent to which such
Borrower is maintaining insurance coverage and, if such Borrower does not so
maintain, the Master Servicer will itself cause to be maintained with Qualified
Insurers) for the related Mortgaged Property (x) except where the Loan Documents
permit a Borrower to rely on self-insurance provided by a tenant, a fire and
casualty extended coverage insurance policy, which does not provide for
reduction due to depreciation, in an amount that is at least equal to the lesser
of (i) the full replacement cost of improvements securing such Mortgage Loan or
Loan Combination, as applicable, or (ii) the Stated Principal Balance of such
Mortgage Loan or Loan Combination, as applicable, but, in any event, in an
amount sufficient to avoid the application of any co-insurance clause and (y)
all other insurance coverage (including, but not limited to, coverage for acts
of terrorism) as is required, subject to applicable law, under the related Loan
Documents; provided, however, that:
(i) the Master Servicer shall not be required to maintain any
earthquake or environmental insurance policy on any Mortgaged Property
unless (x) such insurance policy was in effect at the time of the
origination of the related Mortgage Loan or Loan Combination, as
applicable, or (y) was required by the related Loan Documents and is
available at commercially reasonable rates (and if the Master Servicer
does not cause the Borrower to maintain or itself maintain such earthquake
or environmental insurance policy on any Mortgaged Property, the Special
Servicer shall have the right, but not the duty, to obtain (in accordance
with the Servicing Standard), at the Trust's expense, earthquake or
environmental insurance on any REO Property so long as such insurance is
available at commercially reasonable rates), provided that the Master
Servicer shall require the related Borrower to maintain such insurance in
the amount, in the case of clause (x), maintained at origination, and in
the case of clause (y), required by such Mortgage Loan or Loan
Combination, in each case, to the extent such amounts are available at
commercially reasonable rates;
(ii) if and to the extent that any Mortgage Loan Document grants the
lender thereunder any discretion (by way of consent, approval or
otherwise) as to the insurance provider from whom the related Borrower is
to obtain the requisite insurance coverage, the Master Servicer shall (to
the extent consistent with the Servicing Standard) require the related
Borrower to obtain the requisite insurance coverage from Qualified
Insurers;
(iii) no Servicer shall have any obligation beyond using its
reasonable efforts consistent with the Servicing Standard to cause any
Borrower to maintain the insurance required to be maintained under the
Loan Documents; provided, however, that this clause
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shall not limit the Master Servicer's obligation to obtain and maintain a
force-placed insurance policy, as provided herein;
(iv) except as provided below, (including under clause (vii) below),
in no event shall the Master Servicer be required to cause the Borrower to
maintain, or itself obtain, insurance coverage that the Master Servicer
has determined is either (A) not available at any rate or (B) not
available at commercially reasonable rates and the related hazards are not
at the time commonly insured against for properties similar to the related
Mortgaged Property and located in or around the region in which the
related Mortgaged Property is located (in each case, as determined by the
Master Servicer in accordance with the Servicing Standard, not less
frequently than annually (but need not be made more frequently) at the
approximate date on which the Master Servicer receives notice of the
renewal, replacement or cancellation of coverage, and the Master Servicer
will be entitled to rely on insurance consultants, retained at its own
expense, in making such determination);
(v) the reasonable efforts of the Master Servicer to cause a
Borrower to maintain insurance shall be conducted in a manner that takes
into account the insurance that would then be available to the Master
Servicer on a force-placed basis;
(vi) to the extent that the Master Servicer itself is required to
maintain insurance that the Borrower does not maintain, the Master
Servicer will not be required to maintain insurance other than what is
available to the Master Servicer on a force-placed basis at commercially
reasonable rates, and only to the extent the Trustee as lender has an
insurable interest thereon; and
(vii) any explicit terrorism insurance requirements contained in the
related Loan Documents shall be enforced by the Master Servicer in
accordance with the Servicing Standard, unless the Special Servicer and
the Directing Certificateholder have consented to a waiver (including a
waiver to permit the Master Servicer to accept insurance that does not
comply with specific requirements contained in the Loan Documents) in
writing of that provision in accordance with the Servicing Standard;
provided, however, that any determination by the Master Servicer that a
particular type of insurance is not available at commercially reasonable rates
shall be subject to the approval of the Special Servicer and the Directing
Certificateholder; provided, further, that the Master Servicer will not be
permitted to obtain insurance on a force-placed basis with respect to terrorism
insurance without the consent of the Special Servicer and the Directing
Certificateholder and provided, further, that while an approval provided for
under Section 3.08 is pending, the Master Servicer will not be in default or
liable for any loss.
Notwithstanding the limitation set forth in clause (iv) above, the
Master Servicer must, prior to availing itself of any limitation described in
that clause with respect to any Mortgage Loan or Loan Combination, as
applicable, obtain the approval or disapproval of the Special Servicer and the
Directing Certificateholder (and, in connection therewith, the Special Servicer
will be required to comply with any applicable provisions of Sections 3.26 and
3.30, 3.31, 3.32, 3.33 or 3.34, as applicable). The Master Servicer will be
entitled to rely on the determination of the Special Servicer made in connection
with such approval or disapproval.
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The Special Servicer shall decide with the consent of the Directing
Certificateholder whether to withhold or grant such approval in accordance with
the Servicing Standard. If any such approval has not been expressly denied
within 10 Business Days (or with respect to the Loan Combination, such period of
time as provided in Sections 3.31, 3.32 or 3.34, if any) of the Special
Servicer's and the Directing Certificateholder's receipt from the Master
Servicer of the Master Servicer's determination and analysis and all information
reasonably requested by the Special Servicer or the Directing Certificateholder
and reasonably available to the Master Servicer in order to make an informed
decision, such approval shall be deemed to have been granted.
The Master Servicer shall notify the Special Servicer, the Trustee
and the Directing Certificateholder if the Master Servicer determines in
accordance with the Servicing Standard that a Borrower has failed to maintain
insurance required under the Loan Documents and such failure materially and
adversely affects the interests of the Certificateholders or if the Borrower has
notified the Master Servicer in writing that the Borrower does not intend to
maintain such insurance and that the Master Servicer has determined in
accordance with the Servicing Standard that such failure materially and
adversely affects the interests of the Certificateholders.
Subject to Section 3.17(a), with respect to each REO Property (other
than any related REO Property), the Special Servicer shall use reasonable
efforts, consistent with the Servicing Standard, to maintain (subject to the
right of the Special Servicer to direct the Master Servicer to make a Property
Advance for the costs associated with coverage that the Special Servicer
determines to maintain, in which case the Master Servicer shall make such
Property Advance) with Qualified Insurers, (a) a fire and casualty extended
coverage insurance policy, which does not provide for reduction due to
depreciation, in an amount that is at least equal to the lesser of the full
replacement value of the Mortgaged Property or the Stated Principal Balance of
the Mortgage Loan or the Loan Combination, as applicable (or such greater amount
of coverage required by the related Loan Documents (unless such amount is not
available or the Directing Certificateholder has consented to a lower amount)),
but, in any event, in an amount sufficient to avoid the application of any
co-insurance clause, (b) a comprehensive general liability insurance policy with
coverage comparable to that which would be required under prudent lending
requirements and in an amount not less than $1.0 million per occurrence, and (c)
to the extent consistent with the Servicing Standard, a business interruption or
rental loss insurance covering revenues or rents for a period of at least 12
months; provided, however, that the Special Servicer shall not be required in
any event to maintain or obtain insurance coverage described in this paragraph
beyond what is reasonably available at a cost customarily acceptable and
consistent with the Servicing Standard. With respect to each Specially Serviced
Loan (other than an REO Loan) the Special Servicer shall, in accordance with the
Servicing Standard, be responsible for pursuing any enforcement action against
the related Borrower with respect to such Borrower's failure to maintain the
insurance described in the first paragraph of this Section 3.08(a); provided,
that if such Borrower fails to maintain such insurance, the Special Servicer may
direct the Master Servicer to cause such coverage to be maintained in accordance
with and subject to the other provisions of this Section 3.08, to the extent
that the identified coverage is available under the Master Servicer's existing
force-placed policy.
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All such insurance policies maintained as described above shall
contain (if they insure against loss to property) a "standard" mortgagee clause,
with loss payable to the Master Servicer (on behalf of the Trustee on behalf of
Certificateholders and, with respect to the Loan Combination the [_____] B Loan
Noteholder), or shall name the Trustee as the insured, with loss payable to the
Special Servicer on behalf of the Trustee (on behalf of Certificateholders and,
with respect to the Loan Combination, the [_____] B Loan Noteholder) (in the
case of insurance maintained in respect of an REO Property). Any amounts
collected by the Master Servicer or Special Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or REO Property or amounts to be released to the related
Borrower, in each case in accordance with the Servicing Standard) shall be
deposited in the Collection Account (or, in the case of the Loan Combination, in
the Loan Combination Collection Account), subject to withdrawal pursuant to
Section 3.06, in the case of amounts received in respect of a Mortgage Loan or
Loan Combination, or in the applicable REO Account of the Special Servicer,
subject to withdrawal pursuant to Section 3.17, in the case of amounts received
in respect of an REO Property. Any cost incurred by the Master Servicer or the
Special Servicer in maintaining any such insurance shall not, for purposes
hereof, including calculating monthly distributions to Certificateholders or the
[_____] B Loan Noteholder, be added to the Stated Principal Balance of the
related Mortgage Loan or the Loan Combination, notwithstanding that the terms of
such Mortgage Loan or Loan Combination so permit; provided, however, that this
sentence shall not limit the rights of the Master Servicer or Special Servicer
on behalf of the Trust Fund to enforce any obligations of the related Borrower
under such Mortgage Loan or Loan Combination. Any costs incurred by the Master
Servicer in maintaining any such insurance policies in respect of the Mortgage
Loans or Specially Serviced Loans (other than REO Properties) (i) if the
Borrower defaults on its obligation to do so, shall be advanced by the Master
Servicer as a Property Advance and will be charged to the related Borrower and
(ii) shall not, for purposes of calculating monthly distributions to
Certificateholders, be added to the Stated 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 Fund
(and in the case of the Loan Combination, first, of the related B Loan
Noteholder, if any, up to the related B Loan's Stated Principal Balance and
second, to the extent such cost remains unpaid, the related Mortgage Loan)
payable out of the related REO Account (or Loan Combination REO Account, as
applicable) or, if the amount on deposit therein is insufficient therefore,
advanced by the Master Servicer as a Property Advance.
(b) If either (x) the Master Servicer or Special Servicer obtains
and maintains, or causes to be obtained and maintained, a blanket policy or
master force-placed policy insuring against hazard losses on all of the Mortgage
Loans, Loan Combination or REO Properties (other than the related REO
Properties), as applicable, as to which it is the Master Servicer or Special
Servicer, as the case may be, then, to the extent such policy (i) is obtained
from a Qualified Insurer, and (ii) provides protection equivalent to the
individual policies otherwise required or (y) the Special Servicer has long-term
unsecured debt obligations that are rated not lower than "A2" by [Xxxxx'x] and
"A" by [S&P], and the Special Servicer self-insures for its obligation to
maintain the individual policies otherwise required, then the Master Servicer or
the Special Servicer shall conclusively be deemed to have satisfied its
obligation to cause hazard insurance to be maintained on the related Mortgaged
Properties or REO Properties, as applicable. Such a blanket or master
force-placed policy may contain a deductible clause (not in excess of a
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customary amount), in which case the Master Servicer or Special Servicer, as the
case may be, that maintains such policy shall, if there shall not have been
maintained on any Mortgaged Property or REO Property thereunder a hazard
insurance policy complying with the requirements of Section 3.08(a), and there
shall have been one or more losses that would have been covered by such an
individual policy, promptly deposit into the Collection Account (or, in the case
of the Loan Combination, in the Loan Combination Collection Account), from its
own funds, the amount not otherwise payable under the blanket or master
force-placed policy in connection with such loss or losses because of such
deductible clause to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan or the Loan Combination,
as applicable (or, in the absence of any such deductible limitation, the
deductible limitation for an individual policy which is consistent with the
Servicing Standard). The Master Servicer and Special Servicer shall prepare and
present, on behalf of itself, the Trustee, Certificateholders and, if applicable
the [_____] B Loan Noteholder, claims under any such blanket or master
force-placed policy maintained by it in a timely fashion in accordance with the
terms of such policy. If the Master Servicer or Special Servicer, as applicable,
causes any Mortgaged Property or REO Property to be covered by such
"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 as a Property
Advance.
(c) With respect to each Mortgage Loan (other than any Specially
Serviced Loan) or Loan Combination, as applicable, that is subject to an
Environmental Insurance Policy, if the Master Servicer has actual knowledge of
any event giving rise to a claim under an Environmental Insurance Policy, the
Master Servicer shall notify the Special Servicer to such effect and the Master
Servicer shall take reasonable actions as are in accordance with the Servicing
Standard and the terms and conditions of such Environmental Insurance Policy to
make a claim thereunder and achieve the payment of all amounts to which the
Trust is entitled thereunder. With respect to each Specially Serviced Loan and
REO Property that is subject to an Environmental Insurance Policy, if the
Special Servicer has actual knowledge of any event giving rise to a claim under
an Environmental Insurance Policy, such Special Servicer shall take reasonable
actions as are in accordance with the Servicing Standard and the terms and
conditions of such Environmental Insurance Policy to make a claim thereunder and
achieve the payment of all amounts to which the Trust, on behalf of the
Certificateholders and, if applicable, the [_____] B Loan Noteholder (giving due
regard to the junior nature of the related B Loan, if any), is entitled
thereunder. Any legal fees or other out-of-pocket costs incurred in accordance
with the Servicing Standard in connection with any claim under an Environmental
Insurance Policy described above (whether by the Master Servicer or Special
Servicer) shall be paid by, and reimbursable to, the Master Servicer as a
Property Advance.
(d) The Master Servicer and Special Servicer shall at all times
during the term of this Agreement (or, in the case of the Special Servicer, at
all times during the term of this Agreement during which Specially Serviced
Loans and/or REO Properties as to which it is the Special Servicer exist as part
of the Trust Fund) keep in force with a Qualified Insurer, a fidelity bond in
such form and amount as are consistent with the Servicing Standard. The Master
Servicer or Special Servicer shall be deemed to have complied with the foregoing
provision if an Affiliate thereof has such fidelity bond coverage and, by the
terms of such fidelity bond, the coverage afforded thereunder extends to the
Master Servicer or Special Servicer, as the case may
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be. Such fidelity bond shall provide that it may not be canceled without ten
days' prior written notice to the Trustee. So long as the long-term unsecured
debt obligations of the Master Servicer (or its corporate parent if such
insurance is guaranteed by its parent) or the Special Servicer, as applicable,
are rated not lower than "A2" by [Xxxxx'x] and "A" by [S&P], the Master Servicer
or the Special Servicer, as applicable, may self-insure with respect to the
fidelity bond coverage required as described above, in which case it shall not
be required to maintain an insurance policy with respect to such coverage.
The Master Servicer and Special Servicer shall at all times during
the term of this Agreement (or, in the case of the Special Servicer, at all
times during the term of this Agreement during which Specially Serviced Loans
and/or REO Properties exist as part of the Trust Fund) also keep in force with a
Qualified Insurer a policy or policies of insurance covering loss occasioned by
the errors and omissions of its officers and employees in connection with their
servicing obligations hereunder, which policy or policies shall be in such form
and amount as are consistent with the Servicing Standard. The Master Servicer or
Special Servicer shall be deemed to have complied with the foregoing provisions
if an Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to the Master Servicer or
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide that it may not be canceled without ten days' prior written notice to
the Trustee. So long as the long-term unsecured debt obligations of the Master
Servicer (or its corporate parent if such insurance is guaranteed by its parent)
or the Special Servicer, as applicable, are rated not lower than "A" by [S&P]
and "A2" by [Xxxxx'x], the Master Servicer or the Special Servicer, as
applicable, may self-insure with respect to the errors and omissions coverage
required as described above, in which case it shall not be required to maintain
an insurance policy with respect to such coverage.
Section 3.09 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions. (a) If any Mortgage Loan or Loan Combination
contains a provision in the nature of a "due-on-sale" clause (including, without
limitation, sales or transfers of Mortgaged Properties (in full or part) or the
sale, transfer, pledge or hypothecation of direct or indirect interests in the
Borrower or its owners), which by its terms:
(i) provides that such Mortgage Loan or Loan Combination will (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,
(ii) provides that such Mortgage Loan or Loan Combination may not be
assumed without the consent of the related mortgagee in connection with
any such sale or other transfer, or
(iii) provides that such Mortgage Loan or Loan Combination may be
assumed or transferred without the consent of the mortgagee, provided
certain conditions set forth in the Loan Documents are satisfied,
then, for so long as such Mortgage Loan is included in the Trust Fund, subject
to the rights of the Directing Certificateholder, the Master Servicer (with
respect to Performing Loans that it is servicing) or the Special Servicer (with
respect to Specially Serviced Loans), as applicable, on behalf of the Trust Fund
shall not be required to enforce any such due-on-sale clauses and in
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connection therewith shall not be required to (x) accelerate payments thereon or
(y) withhold its consent to such an assumption if (1) such provision is not
exercisable under applicable law or the enforcement of such provision is
reasonably likely to result in meritorious legal action by the Borrower or (2)
the Master Servicer or the Special Servicer, as applicable, determines, in
accordance with the Servicing Standard, that granting such consent would be
likely to result in a greater recovery, on a present value basis (discounting at
the related Mortgage Rate), than would enforcement of such clause. If the Master
Servicer or the Special Servicer, as applicable, determines that (A) granting
such consent would be likely to result in a greater recovery, (B) such provision
is not legally enforceable, or (C) that the conditions described in clause (iii)
above relating to the assumption or transfer of Mortgage Loan or Loan
Combination have been satisfied, the Master Servicer (with respect to Performing
Loans) or the Special Servicer (with respect to Specially Serviced Loans), as
applicable, is authorized to take or enter into an assumption agreement from or
with the Person to whom the related Mortgaged Property has been or is about to
be conveyed, and to release the original Borrower from liability upon the
Mortgage Loan and substitute the new Borrower as obligor thereon, provided, that
(a) the credit status of the prospective new Borrower is in compliance with the
Master Servicer's or Special Servicer's, as applicable, regular commercial
mortgage origination or Servicing Standard and criteria and the terms of the
related Mortgage and (b) the Master Servicer or, with respect to a Specially
Serviced Loan, the Special Servicer, has received written confirmation that such
assumption or substitution would not, in and of itself, cause a downgrade,
qualification or withdrawal of the then-current ratings assigned to the
Certificates from (i) [S&P] with respect to Mortgage Loans that (A) represent
more than 5% of the then-current aggregate Stated Principal Balance of the
Mortgage Loans (taking into account for the purposes of this calculation, in the
case of any such Mortgage Loan with respect to which the related Borrower or its
Affiliate is a Borrower with respect to one or more other Mortgage Loans, such
other Mortgage Loans), (B) have a Stated Principal Balance that is more than
[$35,000,000] or (C) are among the ten largest Mortgage Loans in the Trust Fund
(based on Stated Principal Balance), or (ii) [Xxxxx'x] with respect to any
Mortgage Loan (together with any Mortgage Loans cross-collateralized with such
Mortgage Loan) that represents one of the ten largest Mortgage Loans in the
Trust Fund (based on Stated Principal Balance). In connection with each such
assumption or substitution entered into by the Special Servicer, the Special
Servicer shall give prior notice thereof to the Master Servicer. The Master
Servicer or the Special Servicer, as applicable, shall notify the Trustee and
the Directing Certificateholder that any such assumption or substitution
agreement has been completed by forwarding to the Custodian (with a copy to the
Master Servicer, if applicable, and the Directing Certificateholder) the
original copy of such agreement, which copies shall be added to the related
Mortgage File and shall, for all purposes, be considered a part of such Mortgage
File to the same extent as all other documents and instruments constituting a
part thereof. To the extent not precluded by the Mortgage Loan documents, the
Master Servicer or the Special Servicer shall not approve an assumption or
substitution without requiring the related Borrower to pay any fees owed to the
Rating Agencies associated with the approval of such assumption or substitution.
However, in the event that the related Borrower is required but fails to pay
such fees, such fees shall be an expense of the Trust Fund and, in the case of
the Loan Combination, such expense shall be allocated in accordance with the
related Co-Lender Agreement or, in absence of such allocation, (i) first to the
related B Loan (up to the full Stated Principal Balance thereof), if any, and,
then, (ii) to the holders of the related Mortgage Loan. The Special Servicer
shall have the right to consent to any assumption of a Mortgage Loan or Loan
Combination that is not a Specially Serviced Loan and to any determination by
the Master Servicer that in the case of a
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Mortgage Loan or Loan Combination described in clause (a)(iii) above, that the
conditions to transfer or assumption of such Mortgage Loan or Loan Combination
have been satisfied; provided that the Special Servicer shall obtain the consent
of the Directing Certificateholder to any such assumption or substitution of a
Mortgage Loan or Loan Combination, to the extent described in Sections 3.30,
3.31, 3.32, 3.33 or 3.34 hereof, as applicable.
(b) If any Mortgage Loan or Loan Combination contains a provision in
the nature of a "due-on-encumbrance" clause (including, without limitation, any
mezzanine financing of the Borrower or the Mortgaged Property or any sale or
transfer of preferred equity in the Borrower or its owners), which by its terms:
(i) provides that such Mortgage Loan or Loan Combination shall (or
may at the mortgagee's option) become due and payable upon the creation of
any lien or other encumbrance on the related Mortgaged Property,
(ii) requires the consent of the related mortgagee to the creation
of any such lien or other encumbrance on the related Mortgaged Property,
or
(iii) provides that such Mortgaged Property may be further
encumbered without the consent of the mortgagee, provided certain
conditions set forth in the Loan Documents are satisfied,
then the Master Servicer (with respect to Performing Loans that it is servicing)
or Special Servicer (with respect to Specially Serviced Loans), as applicable,
on behalf of the Trust Fund shall not be required to enforce such
due-on-encumbrance clauses and in connection therewith, will not be required to
(i) accelerate the payments on the related Mortgage Loan or Loan Combination or
(ii) withhold its consent to such lien or encumbrance, if the Master Servicer or
the Special Servicer, as applicable, (x) determines, in accordance with the
Servicing Standard that such enforcement would not be in the best interests of
the Trust Fund or the holder of the related [_____] B Loan, if applicable
(giving due regard to the junior nature of the related B Loan, if any), or that
in the case of a Mortgage Loan or Loan Combination described in clause (b)(iii)
above that the conditions to further encumbrance have been satisfied and (y) as
to any Mortgage Loan or Loan Combination, receives prior written confirmation
from [S&P] and [Xxxxx'x] that granting such consent would not, in and of itself,
cause a downgrade, qualification or withdrawal of any of the then-current
ratings assigned to the Certificates, if applicable; provided, that in the case
of [S&P], such confirmation shall only be required with respect to any Mortgage
Loan that (1) represents [2]% or more of the Stated Principal Balance of all of
the Mortgage Loans held by the Trust Fund (or [5]% if the aggregate Stated
Principal Balance of all of the Mortgage Loans held by the Trust Fund is less
than $[100 million]), (2) has a Stated Principal Balance greater than $[20
million], (3) is one of the ten largest Mortgage Loans based on Stated Principal
Balance, (4) has a loan-to-value ratio (which includes additional debt of the
related Borrower, if any) that is greater than or equal to [85]% or (5) has a
Debt Service Coverage Ratio (which includes additional debt of the related
Borrower, if any) that is less than 1.20x or, in the case of [Xxxxx'x], such
confirmation shall only be required with respect to any Mortgage Loan which
(together with any Mortgage Loans cross-collateralized with such Mortgage Loans)
represents one of the ten largest Mortgage Loans in the Trust Fund (based on
Stated Principal Balance). To the extent not precluded by the Mortgage Loan
documents, the Master Servicer (with respect to Performing Loans) or the Special
Servicer (with
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respect to Specially Serviced Loans) shall not approve an assumption or
substitution without requiring the related Borrower to pay any fees owed to the
Rating Agencies associated with the approval of such lien or encumbrance.
However, in the event that the related Borrower is required but fails to pay
such fees, such fees shall be an expense of the Trust Fund and, in the case of
the Loan Combination, such expense shall be allocated (i) first to the related B
Loan (up to the full Stated Principal Balance thereof), if any, and, then, (ii)
to the holders of the related Mortgage Loan. The Special Servicer shall have the
right to consent to any waiver of a due-on-encumbrance clause with respect to
any Mortgage Loan or Loan Combination that is not a Specially Serviced Loan and
to any determination by the Master Servicer that the conditions to further
encumbrance of a Mortgage Loan or Loan Combination described in clause (b)(iii)
above have been satisfied; provided that the Special Servicer shall obtain the
consent of the Directing Certificateholder to any such waiver of a
due-on-encumbrance clause, to the extent described in Sections 3.30, 3.31, 3.32,
3.33 or 3.34 hereof, as applicable.
(c) If the Special Servicer, in accordance with the Servicing
Standard, (a) notifies the Master Servicer of its determination with respect to
any Mortgage Loan or Loan Combination (which by its terms permits transfer,
assumption or further encumbrance without lender consent, provided certain
conditions are satisfied) that the conditions required under the related Loan
Documents have not been satisfied or (b) the Special Servicer or Directing
Certificateholder objects in writing to the Master Servicer's determination that
such conditions have been satisfied, then the Master Servicer shall not permit
transfer, assumption or further encumbrance of such Mortgage Loan or Loan
Combination.
(d) Nothing in this Section 3.09 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 lien or other encumbrance with respect to such Mortgaged
Property.
(e) In connection with the taking of, or the failure to take, any
action pursuant to this Section 3.09, neither the Master Servicer nor the
Special Servicer shall agree to modify, waive or amend, and no assumption or
substitution agreement entered into pursuant to Section 3.09(a) shall contain
any terms that are different from, any term of any Mortgage Loan or Loan
Combination or the related Note, other than pursuant to Section 3.30, 3.31,
3.32, 3.33 or 3.34 hereof, as applicable.
(f) With respect to any Mortgage Loan or Loan Combination which
permits release of Mortgaged Properties through defeasance and subject to
Section 3.30(m):
(i) If such Mortgage Loan or Loan Combination requires that the
Master Servicer (on behalf of the Trustee) purchase the required
government securities, then the Master Servicer shall purchase such
obligations, at the related Borrower's expense, in accordance with the
terms of such Mortgage Loan; provided, that the Master Servicer shall not
accept the amounts paid by the related Borrower to effect defeasance until
acceptable government securities have been identified.
(ii) To the extent not inconsistent with such Mortgage Loan or Loan
Combination, the Master Servicer shall require the related Borrower to
provide an Opinion of Counsel (which shall be an expense of the related
Borrower) to the effect that
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the Trustee has a first priority perfected security interest in the
defeasance collateral (including the government securities) and the
assignment of the defeasance collateral is valid and enforceable; such
opinion, together with any other certificates or documents to be required
in connection with such defeasance shall be in form and substance
acceptable to each Rating Agency.
(iii) To the extent not inconsistent with such Mortgage Loan or Loan
Combination, the Master Servicer shall require a certificate at the
related Borrower's expense from an Independent certified public accountant
certifying to the effect that the government securities will provide cash
flows sufficient to meet all payments of interest and principal (including
payments at maturity) on such Mortgage Loan or Loan Combination in
compliance with the requirements of the terms of the related Loan
Documents.
(iv) Prior to permitting the release of any Mortgaged Properties
and, if applicable, assumption of the Mortgage Loan or Loan Combination by
a successor borrower, to the extent not inconsistent with the related
Mortgage Loan or Loan Combination, the Master Servicer shall obtain, at
the related Borrower's expense, written confirmation from each Rating
Agency that such release and assumption, if applicable, would not, in and
of itself, result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates; provided, however, that
(A) the Master Servicer shall not be required to obtain such written
confirmation from [Xxxxx'x] unless such Mortgage Loan (together with any
Mortgage Loans cross-collateralized with such Mortgage Loan) at the time
of such defeasance is (x) one of the ten largest Mortgage Loans by Stated
Principal Balance, (y) a Mortgage Loan with a Stated Principal Balance
greater than $[20,000,000] or (z) a Mortgage Loan that represents [5]% or
more of the Stated Principal Balance of all Mortgage Loans and (B) the
Master Servicer shall not be required to obtain such written confirmation
from [S&P] with respect to any Mortgage Loan that has a Stated Principal
Balance that is equal to or less than $[20,000,000] or [5]% of the
aggregate Stated Principal Balance of all of the Mortgage Loans (whichever
is less), so long as such Mortgage Loan is not one of the ten largest
Mortgage Loans by Stated Principal Balance, if the Master Servicer
delivers to the Trustee and [S&P] a letter or a certificate in the form of
Exhibit Q attached hereto.
(v) Prior to permitting release of any Mortgaged Property, if the
related Mortgage Loan so requires or permits, and provides for the related
Borrower to pay the cost thereof, the Master Servicer shall require an
Opinion of Counsel of the related Borrower to the effect that such release
will not cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding,
cause a tax to be imposed on the Trust Fund under the REMIC Provisions or
cause the Grantor Trust to fail to qualify as a grantor trust under
subpart E, Part I of subchapter J of the Code for federal income tax
purposes.
(vi) No defeasance shall occur prior to the second anniversary of
the Startup Day of the Lower-Tier REMIC.
(vii) The Trustee shall at the expense of the related Borrower (to
the extent permitted by the related Loan Documents) hold the U.S.
government obligations as
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pledgee for the benefit of the Certificateholders and, if applicable, the
[_____] B Loan Noteholder, and apply payments of principal and interest
received on the government obligations to the Collection Account in
respect of the defeased Mortgage Loan according to the payment schedule
existing immediately prior to the defeasance.
(viii) The Master Servicer shall, in accordance with the Servicing
Standard, enforce provisions in the Mortgage Loans that it is servicing
requiring Borrowers to pay all reasonable expenses associated with a
defeasance.
(ix) To the extent not inconsistent with such Mortgage Loan, or to
the extent the related Loan Documents provide the lender with discretion,
the Master Servicer shall require the Borrower to establish a single
purpose entity to act as a successor borrower.
Section 3.10 Appraisals; Realization Upon Defaulted Mortgage Loans.
(a) Contemporaneously with the earliest of (i) the effective date of any (A)
modification of the Maturity Date, a Mortgage Rate, principal balance or
amortization terms of any Mortgage Loan or Loan Combination or any other term of
a Mortgage Loan or Loan Combination, (B) extension of the Maturity Date of a
Mortgage Loan or Loan Combination as described below in Section 3.30, 3.31,
3.32, 3.33 or 3.34, as applicable, or (C) consent to the release of any
Mortgaged Property from the lien of the related Mortgage other than pursuant to
the terms of the related Mortgage Loan or Loan Combination, (ii) the occurrence
of an Appraisal Reduction Event, (iii) a default in the payment of a Balloon
Payment for which an extension is not granted pursuant to Section 3.26(g), or
(iv) the date on which the Special Servicer, consistent with the Servicing
Standard, requests an Updated Valuation, the Special Servicer shall obtain an
Updated Valuation or Small Loan Appraisal Estimate (or a letter update for an
existing appraisal which is less than two years old), the cost of which shall
constitute a Property Advance; provided, however, that the Special Servicer
shall not be required to obtain an Updated Valuation pursuant to clauses (i)
through (iv) above with respect to any Mortgaged Property for which there exists
an appraisal or Small Loan Appraisal Estimate which is less than twelve months
old. For so long as such Mortgage Loan or Loan Combination is a Specially
Serviced Loan, the Special Servicer shall obtain letter updates to each Updated
Valuation annually and prior to the Special Servicer granting extensions beyond
one year or any subsequent extension after granting a one year extension with
respect to the same Mortgage Loan or Loan Combination. The Special Servicer will
be required to update, on an annual basis, each Small Loan Appraisal Estimate or
Updated Appraisal for so long as the related Mortgage Loan or Loan Combination
remains a Specially Serviced Loan. The Special Servicer shall send all such
letter updates and Updated Valuations to the Master Servicer, the Rating
Agencies, the Controlling Class Representative and the Directing
Certificateholder.
The Special Servicer shall monitor each Specially Serviced Loan,
evaluate whether the causes of the default can be corrected over a reasonable
period without significant impairment of the value of the related Mortgaged
Property, initiate corrective action in cooperation with the Borrower if, in the
Special Servicer's judgment, cure is likely, and take such other actions
(including without limitation, negotiating and accepting a discounted payoff of
a Mortgage Loan or Loan Combination) as are consistent with the Servicing
Standard. If, in the Special Servicer's judgment, such corrective action has
been unsuccessful, no satisfactory arrangement can be made for collection of
delinquent payments, and the Specially Serviced Loan has not been released from
the Trust Fund pursuant to any provision hereof, and except as
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otherwise specifically provided in Sections 3.09(a) and 3.09(b), the Special
Servicer may, to the extent consistent with the Asset Status Report (and with
the consent of the Directing Certificateholder) and with the Servicing Standard,
accelerate such Specially Serviced Loan and commence a foreclosure or other
acquisition with respect to the related Mortgaged Property or Properties,
provided, that the Special Servicer determines that such acceleration and
foreclosure are more likely to produce a greater recovery to Certificateholders
and, if applicable, [_____] B Loan Noteholder on a present value basis
(discounting at the related Mortgage Rate) than would a waiver of such default
or an extension or modification in accordance with the provisions of Section
3.30, 3.31, 3.32, 3.33 or 3.34 hereof, as applicable. The Master Servicer shall
or, on an emergency basis, in accordance with Section 3.24(b), the Special
Servicer may, pay the costs and expenses in any such proceedings as a Property
Advance unless the Master Servicer or Special Servicer, as applicable,
determines, in its good faith judgment, that such Property Advance would
constitute a Nonrecoverable Advance; provided, however, if the Special Servicer
determines that such payment would be in best interests of the
Certificateholders (and, in the case of Loan Combination, [_________] B Loan
Noteholder), the Special Servicer shall direct the Master Servicer to make such
payment from its Collection Account (or, if applicable, the Loan Combination
Collection Account). The Trustee shall be entitled to conclusively rely upon any
determination of the Master Servicer that a Property Advance, if made, would
constitute a Nonrecoverable Advance. If the Master Servicer does not make such
Property Advance in violation of the second preceding sentence, the Trustee
shall make such Property Advance, unless the Trustee determines that such
Property Advance would be a Nonrecoverable Advance. The Master Servicer and the
Trustee, as applicable, shall be entitled to reimbursement of Property Advances
(with interest at the Advance Rate) made pursuant to this paragraph to the
extent permitted by Section 3.06.
(b) If the Special Servicer elects to proceed with a non-judicial
foreclosure in accordance with the laws of the state where the Mortgaged
Property is located, the Special Servicer shall not be required to pursue a
deficiency judgment against the related Borrower or any other liable party if
the laws of the state do not permit such a deficiency judgment after a
non-judicial foreclosure or if the Special Servicer determines, in its best
judgment, that the likely recovery if a deficiency judgment is obtained will not
be sufficient to warrant the cost, time, expense and/or exposure of pursuing the
deficiency judgment and such determination is evidenced by an Officer's
Certificate delivered to the Trustee.
(c) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee (which shall not include the
Special Servicer) or a separate Trustee or co-Trustee on behalf of the Trustee
as holder of the Lower-Tier Regular Interests and the Certificateholders and, if
applicable, the [_____] B Loan Noteholder. Notwithstanding any such acquisition
of title and cancellation of the related Mortgage Loan or Loan Combination, as
applicable, such Mortgage Loan or Loan Combination, as applicable, shall (except
for purposes of Section 9.01) be considered to be an REO Loan until such time as
the related REO Property shall be sold by the Trust Fund and shall be reduced
only by collections net of expenses. Consistent with the foregoing, for purposes
of all calculations hereunder, so long as such Mortgage Loan or the [_____] B
Loan, as applicable, shall be considered to be an outstanding Mortgage Loan or
the [_____] B Loan, as applicable:
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(i) it shall be assumed that, notwithstanding that the indebtedness
evidenced by the related Note shall have been discharged, such Note and,
for purposes of determining the Stated Principal Balance thereof, the
related amortization schedule in effect at the time of any such
acquisition of title shall remain in effect; and
(ii) subject to Section 1.02(b), Net REO Proceeds received in any
month shall be applied to amounts that would have been payable under the
related Note(s) in accordance with the terms of such Note(s). In the
absence of such terms, Net REO Proceeds shall be deemed to have been
received first, in payment of the accrued interest that remained unpaid on
the date that the related REO Property was acquired by the Trust Fund;
second, in respect of the delinquent principal installments that remained
unpaid on such date; and thereafter, Net REO Proceeds received in any
month shall be applied to the payment of installments of principal and
accrued interest on such Mortgage Loan or the [_____] B Loan, as
applicable, deemed to be due and payable in accordance with the terms of
such Note(s) and such amortization schedule until such principal has been
paid in full and then to other amounts due under such Mortgage Loan or the
[_____] B Loan, as applicable. If such Net REO Proceeds exceed the Monthly
Payment then payable, the excess shall be treated as a Principal
Prepayment received in respect of such Mortgage Loan or the [_____] B
Loan, as applicable.
(d) Notwithstanding any provision herein to the contrary, the
Special Servicer shall not acquire for the benefit of the Trust Fund any
personal property pursuant to this Section 3.10 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(l) of the Code) so acquired by the Special
Servicer for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an
Opinion of Counsel (which opinion shall be an expense of the Loan REMIC or
the Lower-Tier REMIC), as applicable, to the effect that the holding of
such personal property by the Loan REMIC or the Lower-Tier REMIC will not
cause the imposition of a tax on the Loan REMIC, the Lower-Tier REMIC or
the Upper-Tier REMIC under the REMIC Provisions or 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 Certificate is outstanding.
(e) Notwithstanding any provision to the contrary in this Agreement,
the Special Servicer shall not, on behalf of the Trust Fund, obtain title to any
direct or indirect partnership interest or other equity interest in any Borrower
pledged pursuant to any pledge agreement unless the Special Servicer shall have
requested and received an Opinion of Counsel (which opinion shall be an expense
of the Trust Fund; provided that with respect to the Loan Combination, such
expenses shall be allocated first to the related B Loan and second, to the
extent such expense remains unpaid, to the related Mortgage Loan) to the effect
that the holding of such partnership interest or other equity interest by the
Trust Fund will not cause the imposition of a tax on the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC under the REMIC Provisions or 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 Certificate is outstanding.
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(f) Notwithstanding any provision to the contrary contained in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, obtain title to any direct or indirect partnership interest in any
Borrower pledged pursuant to a pledge agreement and thereby be the beneficial
owner of a Mortgaged Property, have a receiver of rents appointed with respect
to, and shall not otherwise acquire possession of, or take any other action with
respect to, any Mortgaged Property if, as a result of any such action, the
Trustee, for the Trust Fund, the Certificateholders or the [_____] B Loan
Noteholder, if applicable, 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 the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Special Servicer has previously determined in
accordance with the Servicing Standard, based on an updated environmental
assessment report prepared by an Independent Person who regularly conducts
environmental audits, that:
(i) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, after consultation with an environmental
consultant, that it would be in the best economic interest of the Trust
Fund (and with respect to the Loan Combination, the [_____] B Loan
Noteholder) to take such actions as are necessary to bring such Mortgaged
Property in compliance therewith, and
(ii) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any currently effective federal, state
or local law or regulation, or that, if any such Hazardous Materials are
present for which such action could be required, after consultation with
an environmental consultant, it would be in the best economic interest of
the Trust Fund to take such actions with respect to the affected Mortgaged
Property.
In the event that the environmental assessment first obtained by the
Special Servicer with respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable environmental laws
or that Hazardous Materials may be present but does not definitively establish
such fact, the Special Servicer shall cause such further environmental tests to
be conducted by an Independent Person who regularly conducts such tests as the
Special Servicer shall deem prudent to protect the interests of
Certificateholders and, if applicable, the [_____] B Loan Noteholder. Any such
tests shall be deemed part of the environmental assessment obtained by the
Special Servicer for purposes of this Section 3.10.
(g) The environmental assessment contemplated by Section 3.10(g)
shall be prepared within three months (or as soon thereafter as practicable) of
the determination that such assessment is required by any Independent Person who
regularly conducts environmental audits for purchasers of commercial property
where the Mortgaged Property is located, as determined by the Special Servicer
in a manner consistent with the Servicing Standard. Upon the written direction
of the Special Servicer and delivery by the Special Servicer to the Master
Servicer of pertinent back-up information the Master Servicer shall advance the
cost of preparation of such environmental assessments as a Property Advance
unless the Master Servicer determines, in its good faith judgment, that such
Property Advance would be a Nonrecoverable Advance. The
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Master Servicer shall be entitled to reimbursement of Property Advances (with
interest at the Advance Rate) made pursuant to the preceding sentence to the
extent permitted by Section 3.06.
(h) If the Special Servicer determines pursuant to Section
3.10(f)(i) that a Mortgaged Property is not in compliance with applicable
environmental laws but that it is in the best economic interest of the Trust
Fund (and with respect to the Loan Combination, the [_____] B Loan Noteholder)
to take such actions as are necessary to bring such Mortgaged Property in
compliance therewith, or if the Special Servicer determines pursuant to Section
3.10(f)(ii) that the circumstances referred to therein relating to Hazardous
Materials are present but that it is in the best economic interest of the Trust
Fund (and with respect to the Loan Combination, the [_____] B Loan Noteholder)
to take such action with respect to the containment, clean-up or remediation of
Hazardous Materials affecting such Mortgaged Property as is required by law or
regulation, the Special Servicer shall take such action as it deems to be in the
best economic interest of the Trust Fund (and with respect to the Loan
Combination, the [_____] B Loan Noteholder), but only if the Trustee has mailed
notice to the Holders of the Regular Certificates and the [_____] B Loan
Noteholder of such proposed action, which notice shall be prepared by the
Special Servicer, and only if the Trustee does not receive, within 30 days of
such notification, instructions from the Holders of Regular Certificates
entitled to a majority of the Voting Rights and, with respect to Loan
Combination, the [_____] B Loan Noteholder directing the Special Servicer not to
take such action. Notwithstanding the foregoing, if the Special Servicer
reasonably determines that it is likely that within such 30-day period
irreparable environmental harm to such Mortgaged Property would result from the
presence of such Hazardous Materials and provides a prior written statement to
the Trustee setting forth the basis for such determination, then the Special
Servicer may take such action to remedy such condition as may be consistent with
the Servicing Standard. None of the Trustee, the Master Servicer or the Special
Servicer shall be obligated to take any action or not take any action pursuant
to this Section 3.10(i) at the direction of the Certificateholders or with
respect to the Loan Combination, at the direction of the Certificateholders and
the [_____] B Loan Noteholder unless the Certificateholders and, with respect to
the [_____] B Loan, the [_____] B Loan Noteholder agree to indemnify the
Trustee, the Master Servicer and the Special Servicer with respect to such
action or inaction. The Master Servicer shall, or, on an emergency basis, in
accordance with Section 3.24(b), the Special Servicer may, advance the cost of
any such compliance, containment, clean-up or remediation as a Property Advance
unless the Master Servicer or the Special Servicer, as applicable, determines,
in its good faith judgment, that such Advance would constitute a Nonrecoverable
Advance.
(i) The Special Servicer shall notify the Master Servicer of any
Mortgaged Property which is abandoned or foreclosed that requires reporting to
the IRS and shall provide the Master Servicer with all information regarding
forgiveness of indebtedness and required to be reported with respect to any
Mortgage Loan or Loan Combination which is abandoned or foreclosed and the
Master Servicer shall report to the IRS and the related Borrower, in the manner
required by applicable law, such information and the Master Servicer shall
report, via Form 1099C, all forgiveness of indebtedness to the extent such
information has been provided to the Master Servicer by the Special Servicer.
The Master Servicer shall deliver a copy of any such report to the Trustee.
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(j) The costs of any Updated Valuation obtained pursuant to this
Section 3.10 shall be paid by the Master Servicer or, on an emergency basis, in
accordance with Section 3.24(b), may be paid by the Special Servicer, as
applicable, as a Property Advance and shall be reimbursable from the Collection
Accounts or, with respect to the Loan Combination, first, from the Loan
Combination Collection Account and second, to the extent amounts in the Loan
Combination Collection Account are insufficient therefore, from the Collection
Accounts in accordance with Section 3.06(b).
Section 3.11 Trustee to Cooperate; Release of Mortgage Files. Upon
the payment in full of any Mortgage Loan or Loan Combination, or the receipt by
the Master Servicer of a notification that payment in full has been escrowed in
a manner customary for such purposes, the Master Servicer shall immediately
notify the Trustee or the Custodian by a certification (which certification
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Collection Account or the Loan Combination Collection Account, as
applicable, pursuant to Section 3.05 have been or will be so deposited) of a
Servicing Officer and shall request delivery to it of the related Mortgage File.
Any expense incurred in connection with any instrument of satisfaction or deed
of reconveyance that is not paid by the related Borrower shall be chargeable to
the Trust Fund. Each Master Servicer agrees to use reasonable efforts in
accordance with the Servicing Standard to enforce any provision in the relevant
Loan Documents that require the Borrower to pay such amounts.
From time to time upon request of the Master Servicer or Special
Servicer and delivery to the Trustee and the Custodian of a Request for Release,
the Custodian shall promptly release the Mortgage File (or any portion thereof)
designated in such Request for Release to the Master Servicer or Special
Servicer, as applicable. Upon return of the foregoing to the Custodian, or in
the event of a liquidation or conversion of the Mortgage Loan or the Loan
Combination into an REO Property, or in the event of a substitution of a
Mortgage Loan pursuant to Section 2.03, or receipt by the Trustee and the
Custodian of a certificate of a Servicing Officer stating that such Mortgaged
Property was liquidated and that all amounts received or to be received in
connection with such liquidation which are required to be deposited into the
Collection Account or the Loan Combination Collection Account, as applicable,
have been so deposited, or that such Mortgage Loan or Loan Combination has
become an REO Property, or that the Master Servicer has received a Qualifying
Substitute Mortgage Loan and the applicable Substitution Shortfall Amount, the
Custodian shall deliver a copy of the Request for Release to the Master Servicer
or Special Servicer, as applicable.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
Trustee's sale or other documents prepared by the Special Servicer, its agents
or attorneys, necessary to the foreclosure or Trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Borrower on the Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Note or Mortgage or
otherwise available at law or in equity. Each such certification shall include a
request that such pleadings or documents be executed by the Trustee and a
statement as to the reason such documents or pleadings are required, and that
the execution and delivery thereof by the Trustee will not
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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 3.12 Servicing Fees, Trustee Fees and Special Servicing
Compensation. (a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to the Servicing Fee with respect to each Mortgage
Loan that it is servicing. The Master Servicer's rights to the Servicing Fee may
not be transferred in whole or in part except in connection with the transfer of
all of the Master Servicer's responsibilities and obligations under this
Agreement. In addition, the Master Servicer shall be entitled to receive, as
additional Servicing Compensation, to the extent permitted by applicable law and
the related Mortgage Loans and [_____] B Loan that it is servicing and the
related Co-Lender Agreement, (i) all investment income earned on amounts on
deposit in its Collection Account (and with respect to the Loan Combination, the
Loan Combination Collection Account) and certain Reserve Accounts (to the extent
consistent with the related Loan Documents), (ii) any late payment charges and
any Net Default Interest collected by the Master Servicer during a Collection
Period on any Performing Loan, in each case, remaining after application thereof
during such Collection Period to pay the Advance Interest Amount relating to
such Performing Loan and any unreimbursed Additional Trust Fund Expenses
relating to such Performing Loan incurred during or prior to such Collection
Period and, in the case of the Loan Combination, to the extent allocated to the
related Mortgage Loan in the related Co-Lender Agreement, and as further
described in Section 3.12(d), (iii) any amounts collected for checks returned
for insufficient funds (with respect to any Performing Loan or Specially
Serviced Loan), loan service transaction fees, demand fees, beneficiary
statement charges or similar items (but not including Prepayment or Yield
Maintenance Charges) and (iv) to the extent permitted by applicable law and the
related Loan Documents 50% of any Assumption Fees, due-on-sale fees,
due-on-encumbrance fees, loan modification fees, extension fees and any similar
items relating to any Performing Loan (including any related application fees)
for as long as such Mortgage Loan or the [_____] B Loan is not a Specially
Serviced Loan but excluding any Prepayment Premiums or Yield Maintenance
Charges, in each case to the extent received and not required to be deposited or
retained in the Collection Account or Loan Combination Collection Account, in
each case pursuant to Section 3.05; provided, however, that (A) the Master
Servicer shall not be entitled to apply or retain as additional compensation,
any late payment charges with respect to any Mortgage Loan or the [_____] B Loan
with respect to which a monetary default or monetary event of default thereunder
has occurred and is continuing unless and until such monetary default or
monetary event of default has been cured and all delinquent amounts (including
any Default Interest not waived) due with respect to such Mortgage Loan or the
[_____] B Loan have been paid and (B) with respect to the Loan Combination, the
related Net Default Interest and late payment charges shall be allocated (after
netting out Property Advances and other Trust Expenses described herein) in
accordance with the terms of this Agreement and the related Co-Lender Agreement;
provided that such Penalty Charges shall be applied to pay the Advance Interest
Amount and Additional Trust Fund Expenses to the extent required by Section
3.12(d). The Master Servicer shall also be entitled pursuant to, and to the
extent provided in, Sections 3.06(b)(viii) or 3.07(b), as applicable, to
withdraw from its Collection Account and to receive from any Borrower Accounts
(to the extent not payable to the related Borrower under the Mortgage Loan or
applicable law), Net Prepayment Interest Excess, if any, that accrue on the
Mortgage Loans that it is servicing and any interest or other income earned on
deposits therein.
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Notwithstanding anything herein to the contrary, the Master Servicer
(and its successors and assigns) shall also be entitled to the Excess Servicing
Strip with respect to the Mortgage Loans that it is servicing and may at its
option assign or pledge to any third party or retain for itself the Excess
Servicing Strip; provided, however, that in the event of any resignation or
termination of the Master Servicer, all or any portion of the Excess Servicing
Strip 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
Master Servicer (and primary servicer with respect to the Mortgage Loans or Loan
Combination being primarily serviced by the Master Servicer) (which successor
may include the Trustee) that meets the requirements of Section 6.4 and that
requires market rate servicing compensation that accrues at a per annum rate in
excess of [__]% ([__] basis points). The Master Servicer (or its successor
hereunder, if any) shall pay the Excess Servicing Strip to the holder of the
Excess Servicing Strip at such time and to the extent the Master Servicer is
entitled to receive payment of its Master Servicing Fees hereunder,
notwithstanding any resignation or termination of the Master Servicer hereunder
(subject to reduction pursuant to the preceding sentence).
In the event that the Master Servicer is terminated or resigns as
Servicer, it (and its successors and assigns) will be entitled to retain the
Excess Servicing Strip, except to the extent that any portion of such Excess
Servicing Strip is needed (as determined by the Trustee in its discretion) to
compensate any replacement Servicer for assuming the duties of the Master
Servicer under this Agreement.
As compensation for its activities hereunder on each Distribution
Date, the Trustee shall be entitled with respect to each Mortgage Loan to the
Trustee Fee, which shall be payable from amounts on deposit in the Lower-Tier
Distribution Account. The Trustee shall pay the routine fees of the Certificate
Registrar, the Paying Agent and the Authenticating Agent. The Trustee's rights
to the Trustee Fee may not be transferred in whole or in part except in
connection with the transfer of all of its responsibilities and obligations
under this Agreement.
Except as otherwise provided herein, the Master Servicer shall pay
all expenses incurred by it in connection with its servicing activities
hereunder, including all fees of any Sub-Servicers retained by it. Except as
otherwise provided herein, the Trustee shall pay all expenses incurred by it in
connection with its activities hereunder.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled with respect to each Specially Serviced Loan and REO
Loan to the Special Servicing Compensation, which shall be payable from amounts
on deposit in the Collection Account as set forth in Section 3.06. The Special
Servicer's rights to 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. In addition,
the Special Servicer shall be entitled to receive, as Special Servicing
Compensation, to the extent permitted by applicable law and the related Loan
Documents, (i) any late payment charges and any Net Default Interest collected
by the Master Servicer during a Collection Period on any Specially Serviced Loan
remaining after application thereof during such Collection Period (and in the
case of the Loan Combination, as set forth in the related Co-Lender Agreement
and Section 3.12(d) herein) to pay the Advance Interest Amount relating to such
Specially Serviced Loan and any unreimbursed Additional Trust Fund Expenses
incurred during or prior to such Collection Period (but not NSF check fees and
the like, which shall be paid to the Master Servicer) as further
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described below in this subsection (b), (ii) 50% of any Assumption Fees,
due-on-sale fees, due-on-encumbrance fees, loan modification fees, extension
fees, and other similar fees relating to any Performing Loan, excluding any
Prepayment Premiums or Yield Maintenance Charges, (iii) any interest or other
income earned on deposits in the REO Accounts, and (iv) 100% of any Assumption
Fees, due-on-sale fees, due-on-encumbrance fees, loan modification fees,
extension fees, loan service transaction fees, demand fees, beneficiary
statement charges and other similar fees relating to any Specially Serviced Loan
or REO Loan; provided, however, that the Special Servicer shall not be entitled
to apply or retain as additional compensation, any late payment charges with
respect to any Specially Serviced Loan with respect to which a monetary default
or monetary event of default thereunder has occurred and is continuing unless
and until such monetary default or monetary event of default has been cured and
all delinquent amounts (including any Default Interest not waived) due with
respect to such Mortgage Loan have been paid.
Except as otherwise provided herein, the Special Servicer shall pay
all expenses incurred by it in connection with its servicing activities
hereunder, including all fees of any Sub-Servicers retained by it.
(c) In addition, a Workout Fee will be payable to the Special
Servicer with respect to each Mortgage Loan or the [_____] B Loan that ceases to
be a Specially Serviced Loan pursuant to the definition thereof. As to each such
Mortgage Loan or the [_____] B Loan, the Workout Fee will be payable out of each
collection of interest and principal (including scheduled payments, prepayments,
Balloon Payments and payments at maturity) received on such Mortgage Loan or the
[_____] B Loan for so long as it remains a Corrected Mortgage Loan. The Workout
Fee with respect to any such Mortgage Loan or the [_____] B Loan will cease to
be payable if such loan again becomes a Specially Serviced Loan or if the
related Mortgaged Property becomes an REO Property; provided that a new Workout
Fee will become payable if and when such Mortgage Loan or the [_____] B Loan
again ceases to be a Specially Serviced Loan. If the Special Servicer is
terminated (other than for cause) or resigns with respect to any or all of its
servicing duties, it shall retain the right to receive any and all Workout Fees
payable with respect to the Mortgage Loans or the Loan Combination that cease to
be a Specially Serviced Loan during the period that it had responsibility for
servicing this Specially Serviced Loan and that had ceased being Specially
Serviced Loans (or for any Specially Serviced Loan that had not yet become a
Corrected Mortgage Loan because as of the time that the Special Servicer is
terminated the borrower has not made three consecutive monthly debt service
payments and subsequently the Specially Serviced Loan becomes a Corrected
Mortgage Loan) at the time of such termination or resignation (and the successor
Special Servicer shall not be entitled to any portion of such Workout Fees), in
each case until the Workout Fee for any such loan ceases to be payable in
accordance with the preceding sentence.
A Liquidation Fee will be payable to the Special Servicer with
respect to each Mortgage Loan repurchased by the Mortgage Loan Seller after the
applicable time period (including any applicable extension thereof) in Section
2.03(d) or Specially Serviced Loan as to which the Special Servicer obtains a
full, partial or discounted payoff from the related Borrower and, except as
otherwise described below, with respect to any Specially Serviced Loan or REO
Property as to which the Special Servicer recovered any Liquidation Proceeds. As
to each such Mortgage Loan repurchased by the Mortgage Loan Seller after the
applicable time period
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(including any applicable extension thereof) in Section 2.03(d) or Specially
Serviced Loan and REO Property, the Liquidation Fee will be payable from the
related payment or proceeds. Notwithstanding anything to the contrary described
above, no Liquidation Fee will be payable based on, or out of, Liquidation
Proceeds received in connection with (i) the purchase of any Defaulted Mortgage
Loan by the Special Servicer or the Controlling Class Representative, (ii) the
purchase of all of the Mortgage Loans and REO Properties by the Master Servicer,
the Special Servicer or the Controlling Class Representative in connection with
the termination of the Trust Fund or the purchase of all of the Mortgage Loans
and all property acquired in respect of any Mortgage Loan by the Sole
Certificateholder pursuant to Section 9.01, (iii) a repurchase of a Mortgage
Loan by the Mortgage Loan Seller pursuant to Section 2.03(d) prior to the
expiration of the time periods (including any applicable extension thereof) set
forth therein, (iv) in the case of the [________] Mortgage Loan, the purchase of
the related Mortgage Loan by the holder of the related B Loan pursuant to the
related Co-Lender Agreement, except to the extent the related Co-Lender
Agreement requires the purchaser to pay such fee; (v) in the case of any
existing mezzanine indebtedness or any mezzanine indebtedness that may exist on
a future date, the purchase of the related Mortgage Loan by a mezzanine lender,
to the extent permitted by the related mezzanine intercreditor agreement, unless
the related mezzanine intercreditor agreement or other related agreements
require the purchaser to pay such Liquidation Fee or similar fee, or (vi) a Loss
of Value Payment by the Mortgage Loan Seller. With respect to any future
mezzanine debt, to the extent not prohibited by the Mortgage Loan Documents, the
Master Servicer or Special Servicer, as applicable, shall require that the
related mezzanine intercreditor agreement provide that in the event of a
purchase of a Mortgage Loan by the related mezzanine lender on a date that is
more than 90 days following the date that the related option becomes
exercisable, such mezzanine lender shall be required to pay a Liquidation Fee
equal to the amount that the Special Servicer would otherwise be entitled to
under this Agreement with respect to a liquidation of such Mortgage Loan
(provided, however, that such Liquidation Fee shall in all circumstances be
payable by the related mezzanine lender and shall not, under any circumstance,
by payable out of the Trust). If, however, Liquidation Proceeds are received
with respect to any Specially Serviced Loan as to which 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. 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 Liquidation Proceeds received on any Mortgage Loan
or any Specially Serviced Loan. In the event that (i) the Special Servicer has
been terminated, and (ii) either prior or subsequent to such termination, either
(A) a Specially Serviced Loan was liquidated or modified pursuant to an action
plan submitted by the initial Special Servicer and approved (or deemed approved)
by the Directing Certificateholder, or (B) a Specially Serviced Loan being
monitored by the Special Servicer subsequently became a Corrected Mortgage Loan,
then in either such event the Special Servicer shall be paid the related Workout
Fee or Liquidation Fee, as applicable.
The Special Servicer will also be entitled to additional fees in the
form of Penalty Charges on Specially Serviced Loans it is responsible for
servicing hereunder that accrued during such time as such Mortgage Loan or the
[_____] B Loan was a Specially Serviced Loan, but only to the extent actually
paid by the related Borrower and to the extent that all amounts then due and
payable with respect to the related Mortgage Loan or the [_____] B Loan
(including interest on Advances) have been paid and are not needed to first, (x)
reimburse the
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Trust Fund for Additional Trust Fund Expenses paid in connection therewith
during or prior to the Collection Period in which such Penalty Charges were
collected and (y) reimburse Advance Interest Amounts paid to the Master
Servicer, Trustee or Special Servicer, as applicable, that accrued with respect
to the related Mortgage Loan or the [_____] B Loan during the Collection Period
in which such Penalty Charges were collected; provided, that with respect to the
[_____] B Loan, Penalty Charges with respect to such [_____] B Loan shall be
paid to the holder of such [_____] B Loan as allocated in the related Co-Lender
Agreement. 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 Collection Account
or if the Loan Combination is involved, the Loan Combination Collection Account
or the applicable REO Account or as a Property Advance, and the Special Servicer
shall not be entitled to reimbursement therefor except as expressly provided in
this Agreement.
(d) In determining the compensation of the Master Servicer or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan
(other than with respect to the Loan Combination, with regard to which Penalty
Charges shall be allocated as set forth in the related Co-Lender Agreement)
during the related Collection Period shall be applied (as between Default
Interest and late payment changes, in the priority set forth in the definition
of "Advance Interest Amount") to reimburse (i) the Master Servicer, the Special
Servicer or the Trustee for interest on Advances with respect to such Mortgage
Loan that accrued in the period that such Penalty Charges were collected, (ii)
the Trust Fund for all interest on Advances with respect to such Mortgage Loan
or Loan Combination previously paid to the Master Servicer, the Special Servicer
or the Trustee pursuant to Section 3.06(b)(vi) and (iii) the Trust Fund for any
Additional Trust Fund Expenses with respect to such Mortgage Loan paid in the
Collection Period that such Penalty Charges were collected and not previously
paid out of Penalty Charges, and any Penalty Charges remaining thereafter shall
be distributed pro rata to the Master Servicer and the Special Servicer based
upon the amount of Penalty Charges the Master Servicer or the Special Servicer
would otherwise have been entitled to receive during such period with respect to
such Mortgage Loan without any such application.
(e) [Reserved.]
(f) The Master Servicer, the Special Servicer and the Trustee shall
be entitled to reimbursement from the Trust Fund (and, in the case of the Loan
Combination, subject to the related Co-Lender Agreement, from the related B Loan
Noteholder) for the costs and expenses incurred by them in the performance of
their duties under this Agreement which are "unanticipated expenses incurred by
the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(iii). Such expenses shall include, by way of example and not by
way of limitation, environmental assessments, Updated Appraisals and appraisals
in connection with foreclosure, the fees and expenses of any administrative or
judicial proceeding and expenses expressly identified as reimbursable in Section
3.06(b)(xviii). All such costs and expenses shall be treated as costs and
expenses of the Loan REMIC and otherwise of the Lower-Tier REMIC,
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and if not attributable to a specific Mortgage Loan or Loan Combination, shall
be allocated to the Lower-Tier REMIC (but not the Loan REMIC) and, if
applicable, the Loan Combination.
(g) No provision of this Agreement or of the Certificates shall
require the Master Servicer, the Special Servicer or the Trustee to expend or
risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder or thereunder, or in the exercise
of any of their rights or powers, if, in the good faith business judgment of the
Master Servicer, Special Servicer or Trustee, as the case may be, repayment of
such funds would not be ultimately recoverable from late payments, Net Insurance
Proceeds, Net Liquidation Proceeds and other collections on or in respect of the
Mortgage Loans, or from adequate indemnity from other assets comprising the
Trust Fund against such risk or liability.
If the Master Servicer, the Special Servicer or the Trustee receives
a request or inquiry from a Borrower, any Certificateholder or any other Person
the response to which would, in the Master Servicer's, the Special Servicer's or
the Trustee's good faith business judgment require the assistance of Independent
legal counsel or other consultant to the Master Servicer, the Special Servicer
or the Trustee, the cost of which would not be an expense of the Trust Fund or
the [_____] B Loan Noteholder hereunder, then the Master Servicer, the Special
Servicer or the Trustee, as the case may be, shall not be required to take any
action in response to such request or inquiry unless such Borrower, such
Certificateholder, or such other Person, as applicable, makes arrangements for
the payment of the Master Servicer's, the Special Servicer's or the Trustee's
expenses associated with such counsel (including, without limitation, posting an
advance payment for such expenses) satisfactory to the Master Servicer, the
Special Servicer or the Trustee, as the case may be, in its sole discretion.
Unless such arrangements have been made, the Master Servicer, the Special
Servicer or the Trustee, as the case may be, shall have no liability to any
Person for the failure to respond to such request or inquiry.
Section 3.13 Reports to the Trustee; Collection Account Statements.
(a) The Master Servicer shall deliver to the Trustee no later than 10:00 a.m.
(New York City time) one Business Day prior to the Master Servicer Remittance
Date prior to each Distribution Date, the CMSA Loan Periodic Update File with
respect to all of the Mortgage Loans that it is servicing for the related
Distribution Date (which shall include, without limitation, the amount of
Available Funds with respect to all of the Mortgage Loans and with respect to
each Loan Group) including information therein that states the anticipated P&I
Advances for the related Distribution Date. The Master Servicer's
responsibilities under this Section 3.13(a) with respect to REO Loans shall be
subject to the satisfaction of the Special Servicer's obligations under Section
3.26.
(b) For so long as the Master Servicer makes deposits into or
credits to and withdrawals or debits from its Collection Account or the Loan
Combination Collection Account, not later than [15] days after each Distribution
Date, the Master Servicer shall forward to the Trustee a statement prepared by
the Master Servicer setting forth the status of each of its Collection Account
and the Loan Combination Collection Account as of the close of business on the
last Business Day of the prior month and showing the aggregate amount of
deposits into and withdrawals from its Collection Account and the Loan
Combination Collection Account of each category of deposit (or credit) specified
in Section 3.05 and each category of withdrawal (or debit) specified in Section
3.06 for the related Collection Period, in each case for the Mortgage Loans. The
Trustee and its agents and attorneys may at any time during normal business
hours,
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upon reasonable notice, inspect and copy the books, records and accounts of the
Master Servicer solely relating to the Mortgage Loans and the performance of its
duties hereunder.
(c) Beginning in November 2005, no later than 4:00 p.m. (New York
City time) on the Master Servicer Remittance Date, the Master Servicer shall
deliver or cause to be delivered to the Trustee the following reports (in
electronic form) with respect to the Mortgage Loans that it is servicing (and,
if applicable, the related REO Properties), providing the required information
as of the immediately preceding Determination Date: (i) to the extent the Master
Servicer has received the most recent CMSA Special Servicer Loan File from the
Special Servicer at the time required, the most recent Delinquent Loan Status
Report, Historical Liquidation Report, Historical Loan Modification and
Corrected Mortgage Loan Report, CMSA Loan Setup File (with respect to the first
Distribution Date) and REO Status Report received from such Special Servicer,
(ii) the most recent CMSA Property File, CMSA Financial File, Comparative
Financial Status Report and the Loan Level Reserve/LOC Report (in each case
incorporating the data required to be included in the CMSA Special Servicer Loan
File), (iii) the Watch List with information that is current as of such
Determination Date and (iv) the Advance Recovery Report.
The information that pertains to Specially Serviced Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Master Servicer at least four Business
Days prior to the Master Servicer Remittance Date in the form required by
Section 3.13(f) or shall be provided by means of such reports so delivered by
the Special Servicer to the Master Servicer in the form so required. In the
absence of manifest error, the Master Servicer shall be entitled to conclusively
rely upon, without investigation or inquiry, the information and reports
delivered to it by the Special Servicer, and the Trustee shall be entitled to
conclusively rely upon the Master Servicer's reports and the Special Servicer's
reports without any duty or obligation to recompute, verify or recalculate any
of the amounts and other information stated therein.
(d) The Master Servicer shall deliver or cause to be delivered to
the Trustee, the Underwriters and to any Rating Agency, the following materials,
in each case to the extent that such materials or the information on which they
are based have been received by the Master Servicer and in each case with
respect to the Mortgage Loans that the Master Servicer is servicing:
(i) At least annually, on or before June 30 of each year, beginning
with [________], with respect to each Mortgage Loan and REO Loan (to the
extent prepared by and received from the Special Servicer (in written
format or in electronic media) in the case of any Specially Serviced Loan
or REO Loan), an Operating Statement Analysis Report for the related
Mortgaged Property or REO Property as of the end of the preceding calendar
year (initially, year-end 2005), together with copies of the related
operating statements and rent rolls (but only to the extent the related
Borrower is required by the Mortgage to deliver, or otherwise agrees to
provide such information and, with respect to operating statements and
rent rolls for Specially Serviced Loans and REO Properties, only to the
extent requested by the Special Servicer) for the current trailing 12
months, if available, or year-to-date. The Master Servicer (or the Special
Servicer in the case of Specially Serviced Loans and REO Properties) shall
use their best reasonable efforts to obtain said annual and other periodic
operating statements and related rent rolls,
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which efforts shall include a letter sent to the related Borrower
(followed up with telephone calls), requesting such annual and other
periodic operating statements and related rent rolls until they are
received to the extent such action is consistent with applicable law and
the terms of the Mortgage Loans. Upon receipt of such annual and other
periodic operating statements (including year-to-date statements) and
related rent rolls and the Master Servicer shall promptly update the
Operating Statement Analysis Report.
(ii) Within 45 days after receipt by the Master Servicer (or within
60 days of receipt by the Special Servicer in the case of a Specially
Serviced Loan or REO Property) of any annual year-end operating statements
with respect to any Mortgaged Property or REO Property (to the extent
prepared by and received from the Special Servicer in the case of any
Specially Serviced Loan or REO Property), an NOI Adjustment Worksheet for
such Mortgaged Property (with the annual year-end operating statements
attached thereto as an exhibit). The Master Servicer will use the
"Normalized" column from the NOI Adjustment Worksheet to update the full
year-end data on any Operating Statement Analysis Report and will use any
operating statements received with respect to any Mortgaged Property
(other than any Mortgaged Property which is REO Property or constitutes
security for a Specially Serviced Loan) to update the Operating Statement
Analysis Report for such Mortgaged Property.
The Master Servicer shall maintain one Operating Statement Analysis
Report for each Mortgaged Property and REO Property (to the extent prepared by
and received from the Special Servicer in the case of any REO Property or any
Mortgaged Property constituting security for a Specially Serviced Loan) relating
to a Mortgage Loan that it is servicing. The Operating Statement Analysis Report
for each Mortgaged Property (other than any such Mortgaged Property which is an
REO Property or constitutes security for a Specially Serviced Loan) is to be
updated with trailing 12-month information, as available (commencing with the
quarter ending December 31, 2005), or year-to-date information until 12-month
trailing information is available by the Master Servicer and such updated report
shall be delivered to the Trustee in the calendar month following receipt by the
Master Servicer of such updated trailing or year-to-date operating statements
and related rent rolls for such Mortgaged Property.
The Special Servicer will be required pursuant to Section 3.13(g) to
deliver to the Master Servicer the information required of it pursuant to this
Section 3.13(d) with respect to Specially Serviced Loans and REO Loans
commencing in November 2005, in addition to within 45 days after its receipt of
any operating statement and related rent rolls for any related Mortgaged
Property or REO Property.
(e) In connection with their servicing of the Mortgage Loans, the
Master Servicer and the Special Servicer shall provide to each other and to the
Trustee, written notice of any event that comes to their knowledge with respect
to a Mortgage Loan or REO Property that the Master Servicer or the Special
Servicer, respectively, determines, in accordance with the Servicing Standard,
would have a material adverse effect on such Mortgage Loan or REO Property,
which notice shall include an explanation as to the reason for such material
adverse effect.
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(f) At least four Business Days prior to the Master Servicer
Remittance Date, the Special Servicer shall deliver, or cause to be delivered,
to the Master Servicer and, upon the request of any of the Trustee, the
Depositor, the Controlling Class or any Rating Agency, to such requesting party,
the CMSA Specially Serviced Loan File with respect to the Specially Serviced
Loans (and, if applicable, the related REO Properties), providing the required
information as of the Determination Date (or, upon the reasonable request of any
Servicer, data files in a form acceptable to the Master Servicer), which CMSA
Specially Serviced Loan File shall include data, to enable the Master Servicer
to produce the following CMSA Supplement Reports: (i) a Delinquent Loan Status
Report; (ii) an Historical Liquidation Report; (iii) an Historical Loan
Modification and corrected Mortgage Loan Report; (iv) an REO Status Report; (v)
Comparative Financial Status Reports; (vi) CMSA Loan Periodic Update File; (vii)
a CMSA Property File; (viii) a CMSA Financial File; (ix) a NOI Adjustment
Worksheet; (x) an Operating Statement Analysis Report; and (xi) the Advance
Recovery Report. Such reports or data shall be presented in writing and on a
computer readable magnetic medium or other electronic format acceptable to the
Master Servicer.
(g) The Special Servicer shall deliver or cause to be delivered to
the Master Servicer and, upon the request of any of the Trustee, the Depositor,
the Controlling Class or any Rating Agency, to such requesting party, without
charge, the following materials for Specially Serviced Loans, in each case to
the extent that such materials or the information on which they are based have
been received by the Special Servicer:
(i) At least annually, on or before June 1 of each year, commencing
with 2006, with respect to each Specially Serviced Loan and REO Loan, an
Operating Statement Analysis Report for the related Mortgaged Property or
REO Property as of the end of the preceding calendar year, together with
copies of the operating statements and rent rolls for the related
Mortgaged Property or REO Property as of the end of the preceding calendar
year (but only to the extent the related Borrower is required by the
Mortgage to deliver, or otherwise agrees to provide, such information and,
with respect to operating statements and rent rolls for Specially Serviced
Loans and REO Properties, only to the extent requested by the Special
Servicer) and for the current trailing 12 months, if available, or
year-to-date. The Special Servicer shall use its best reasonable efforts
to obtain said annual and other periodic operating statements and related
rent rolls with respect to each Mortgaged Property constituting security
for a Specially Serviced Loan and each REO Property, which efforts shall
include a letter sent to the related Borrower or other appropriate party
each quarter (followed up with telephone calls) requesting such annual and
other periodic operating statements and rent rolls until they are
received.
(ii) Within 45 days of receipt by the Special Servicer of any annual
operating statements with respect to any Mortgaged Property relating to a
Specially Serviced Loan, an NOI Adjustment Worksheet for such Mortgaged
Property or REO Property (with the annual operating statements attached
thereto as an exhibit); provided, however, that, with the consent of the
Master Servicer, the Special Servicer may instead provide data files in a
form acceptable to the Master Servicer. The Special Servicer will use the
"Normalized" column from the NOI Adjustment Worksheet to update the full
year-end data on any Operating Statement Analysis Report and will use any
operating statements
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received with respect to any Mortgaged Property which is an REO Property
or constitutes security for a Specially Serviced Loan to update the
Operating Statement Analysis Report for such Mortgaged Property.
The Special Servicer shall maintain one Operating Statement Analysis
Report for each Mortgaged Property securing a Specially Serviced Loan and REO
Property. The Operating Statement Analysis Report for each Mortgaged Property
which constitutes security for a Specially Serviced Loan or is an REO Property
is to be updated by the Special Servicer and such updated report delivered to
the Master Servicer within 45 days after receipt by the Special Servicer of
updated operating statements for each such Mortgaged Property; provided,
however, that, with the consent of the Master Servicer, the Special Servicer may
instead provide data files in a form acceptable to the Master Servicer. The
Special Servicer shall provide each such report to the Master Servicer in the
then applicable CMSA format.
(h) The Trustee shall be entitled to rely conclusively on and shall
not be responsible for the content or accuracy of any information provided to it
by the Master Servicer or the Special Servicer pursuant to this Agreement.
Section 3.14 Access to Certain Documentation. The Master Servicer
and Special Servicer shall provide to any Certificateholders and the [_____] B
Loan Noteholder that are federally insured financial institutions, the Federal
Reserve Board, the FDIC and the OTS and the supervisory agents and examiners of
such boards and such corporations, and any other governmental or regulatory body
to the jurisdiction of which any Certificateholder or the [_____] B Loan
Noteholder is subject, access to the documentation regarding the Mortgage Loans
or the Loan Combination, as applicable, that it is servicing required by
applicable regulations of the Federal Reserve Board, FDIC, OTS or any such
governmental or regulatory body, such access being afforded without charge but
only upon reasonable request and during normal business hours at the offices of
the Master Servicer or Special Servicer. In addition, upon reasonable prior
notice to the Master Servicer or the Special Servicer, as the case may be, the
Depositor or their accountants or other representatives shall have access to
review the documents, correspondence and records of the Master Servicer or the
Special Servicer, as the case may be, as they relate to a Mortgaged Property and
any REO Property during normal business hours at the offices of the Master
Servicer or the Special Servicer, as the case may be. Nothing in this Section
3.16 shall detract from the obligation of the Master Servicer and Special
Servicer to observe any applicable law prohibiting disclosure of information
with respect to the Borrowers, and the failure of the Master Servicer and
Special Servicer to provide access as provided in this Section 3.16 as a result
of such obligation shall not constitute a breach of this Section 3.16.
Section 3.15 Title and Management of REO Properties and REO
Accounts. (a) In the event that title to any Mortgaged Property is acquired for
the benefit of Certificateholders (and, in the case of the Loan Combination, the
[_____] B Loan Noteholder) in foreclosure, by deed in lieu of foreclosure or
upon abandonment or reclamation from bankruptcy, the deed or certificate of sale
shall be taken in the name of the Trustee, or its nominee (which shall not
include the Master Servicer), or a separate Trustee or co-Trustee, on behalf of
the Trust Fund (and, in the case of the Loan Combination, the [_____] B Loan
Noteholder). The Special Servicer, on behalf of the Trust Fund (and, in the case
of the Loan Combination, the [_____] B Loan Noteholder), shall dispose of 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 for
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purposes of Section 860G(a)(8) of the Code, unless (i) the Special Servicer on
behalf of the Lower-Tier REMIC or the Loan REMIC, as applicable, has applied for
an extension of such period pursuant to Sections 856(e)(3) and 860G(a)(8)(A) of
the Code, in which case the Special Servicer shall sell such REO Property within
the applicable extension period or (ii) the Special Servicer seeks and
subsequently receives an Opinion of Counsel (which opinion shall be an expense
of the Trust Fund), addressed to the Special Servicer and the Trustee, to the
effect that the holding by the Trust Fund of such REO Property for an additional
specified period will not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code) at any time that any Certificate is outstanding, in which
event such period shall be extended by such additional specified period subject
to any conditions set forth in such Opinion of Counsel. The Special Servicer, on
behalf of the Trust Fund (and, in the case of the Loan Combination, the [_____]
B Loan Noteholder), shall dispose of any REO Property held by the Trust Fund
prior to the last day of such period (taking into account extensions) by which
such REO Property is required to be disposed of pursuant to the provisions of
the immediately preceding sentence in a manner provided under Section 3.18
hereof. The Special Servicer shall manage, conserve, protect and operate each
REO Property for the Certificateholders (and, in the case of the Loan
Combination, the [_____] B Loan Noteholder) solely for the purpose of its prompt
disposition and sale in a manner which does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a)).
(b) The Special Servicer shall have full power and authority,
subject only to the Servicing Standard and the specific requirements and
prohibitions of this Agreement, to do any and all things in connection with any
REO Property as are consistent with the manner in which the Special Servicer
manages and operates similar property owned or managed by the Special Servicer
or any of its Affiliates, all on such terms and for such period as the Special
Servicer deems to be in the best interests of Certificateholders and, in the
case of the Loan Combination, the [_____] B Loan Noteholder and, in connection
therewith, the Special Servicer shall agree to the payment of management fees
that are consistent with general market standards. Consistent with the
foregoing, the Special Servicer shall cause or permit to be earned with respect
to such REO Property any "net income from foreclosure property," within the
meanings of Section 860G(c) of the Code, which is subject to tax under the REMIC
Provisions, only if it has determined, and has so advised the Trustee in
writing, that the earning of such income on a net after-tax basis could
reasonably be expected to result in a greater recovery on behalf of
Certificateholders (and, in the case of the Loan Combination, the [_____] B Loan
Noteholder) than an alternative method of operation or rental of such REO
Property that would not be subject to such a tax.
The Special Servicer shall segregate and hold all revenues received
by it with respect to any REO Property separate and apart from its own funds and
general assets and shall establish and maintain with respect to any REO Property
a segregated custodial account (each, an "REO Account"), each of which shall be
an Eligible Account and shall be entitled "[________], as Trustee, in trust for
Holders of Deutsche Mortgage & Asset Receiving Corporation, COMM 200[_]-[_]
Commercial Mortgage Pass-Through Certificates REO Account." With respect to an
REO Property securing the Loan Combination, the Special
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Servicer shall establish an REO Account solely with respect to such property
(each such account, a "Loan Combination REO Account"), each of which shall be an
Eligible Account and shall be entitled "[________], as Trustee, in trust for
Holders of Deutsche Mortgage & Asset Receiving Corporation, COMM 200[_]-[_]
Commercial Mortgage Pass-Through Certificates and the [_____] B Loan Noteholder
REO Account," to be held for the benefit of the Certificateholders and the
[_____] B Loan Noteholder. The Special Servicer shall be entitled to withdraw
for its account any interest or investment income earned on funds deposited in
an REO Account or the Loan Combination REO Account to the extent provided in
Section 3.07(b). The Special Servicer shall deposit or cause to be deposited REO
Proceeds in the REO Account or the Loan Combination REO Account within one
Business Day after receipt of such REO Proceeds, and shall withdraw therefrom
funds necessary for the proper operation, management and maintenance of such REO
Property and for other Property Protection Expenses with respect to such REO
Property, including:
(i) all insurance premiums due and payable in respect of any REO
Property;
(ii) all real estate taxes and assessments in respect of any REO
Property that may result in the imposition of a lien thereon;
(iii) all costs and expenses reasonable and necessary to protect,
maintain, manage, operate, repair and restore any REO Property including,
if applicable, the payments of any ground rents in respect of such REO
Property; and
(iv) any taxes imposed on the Upper-Tier REMIC, the Lower-Tier REMIC
or the Loan REMIC in respect of net income from foreclosure property in
accordance with Section 4.05.
To the extent that such REO Proceeds are insufficient for the
purposes set forth in clauses (i) through (iii) above, the Master Servicer shall
or, on an emergency basis, in accordance with Section 3.24(b), the Special
Servicer may, make such Advance unless the Master Servicer or the Special
Servicer, as applicable, determines, in accordance with the Servicing Standard,
that such Property Advance would constitute a Nonrecoverable Advance (provided
that with respect to advancing insurance premiums or delinquent tax assessments
the Master Servicer shall comply with the provisions of the second to last
paragraph in Section 3.24(d)) and if the Master Servicer does not make any such
Advance, the Trustee, to the extent the Trustee has actual knowledge of the
Master Servicer's failure to make such Advance, shall make such Advance, unless
in each case, the Special Servicer, the Master Servicer or the Trustee, as
applicable, determines that such Advance would be a Nonrecoverable Advance. The
Trustee shall be entitled to rely, conclusively, on any determination by the
Special Servicer or the Master Servicer, as applicable, that an Advance, if
made, would be a Nonrecoverable Advance. The Trustee, when making an independent
determination whether or not a proposed Advance would be a Nonrecoverable
Advance, shall be subject to the standards applicable to the Master Servicer
hereunder. The Special Servicer, Master Servicer or the Trustee, as applicable,
shall be entitled to reimbursement of such Advances (with interest at the
Advance Rate) made pursuant to the preceding sentence, to the extent permitted
by Section 3.06. The Special Servicer shall withdraw from each REO Account or
Loan Combination REO Account, as applicable, and remit to the Master Servicer
for deposit into its Collection Account or the Loan Combination Collection
Account, as applicable, on a monthly basis prior to or on the related Due Date
the Net REO
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Proceeds received or collected from each REO Property, except that in
determining the amount of such Net REO Proceeds, the Special Servicer may retain
in each REO Account or Loan Combination REO Account, as applicable, reasonable
reserves for repairs, replacements and necessary capital improvements and other
related expenses.
Notwithstanding the foregoing, the Special Servicer shall not:
(i) permit any New Lease to be entered into, renewed or
extended, 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 repair or maintenance thereof or the
completion of a building or other improvement thereon, and then only
if more than ten percent 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 Person to Directly Operate
any REO Property on any date more than [90] days after its date of
acquisition by the Trust Fund, unless such Person is an Independent
Contractor;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer and the Trustee (which
opinion shall be an expense of the Trust Fund) 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 (determined without regard
to the exception applicable for purposes of Section 860D(a) 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.
The Special Servicer shall be required to contract with an Independent
Contractor, the fees and expenses of which shall be an expense of the Trust Fund
(and, in the case of the Loan Combination, first of the related B Loan
Noteholder, if any, and second, to the extent such expense remains unpaid, the
Mortgage Loan) and payable out of REO Proceeds, for the operation and management
of any REO Property, within [90] days of the Trust Fund's acquisition thereof
(unless the Special Servicer shall have provided the Trustee with an Opinion of
Counsel that the operation and management of any REO Property other than through
an Independent Contractor shall not cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Code Section 860G(a)(8)) (which
opinion shall be an expense of the Trust Fund), provided that:
(i) the terms and conditions of any such contract shall be
reasonable and customary for the area and type of property and shall
not be inconsistent herewith;
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(ii) any such contract shall require, or shall be administered
to require, that the Independent Contractor pay all costs and
expenses incurred in connection with the operation and management of
such REO Property, including those listed above, and remit all
related revenues (net of such costs and expenses) to the Special
Servicer as soon as practicable, but in no event later than 30 days
following the receipt thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.17(b) 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 to the Trust Fund, the
Trustee on behalf of the Certificateholders or, in the case of the
Loan Combination, the related B Loan Noteholder, with respect to the
operation and management of any such REO Property; and
(iv) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of
such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations 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.
(c) Promptly following any acquisition by the Special Servicer of an
REO Property on behalf of the Trust Fund, the Special Servicer shall notify the
Master Servicer thereof, and, upon receipt of such notice, the Special Servicer
shall obtain an Updated Valuation thereof, but only in the event that any
Updated Valuation with respect thereto is more than 12 months old, in order to
determine the fair market value of such REO Property and shall notify the
Depositor and the Master Servicer and with respect to the Loan Combination, the
holder of the related B Loan, if any, of the results of such appraisal. Any such
appraisal shall be conducted in accordance with Appraisal Institute standards
and the cost thereof shall be an expense of the Trust Fund (allocated, to the
Principal Balance Certificates in reverse-sequential order) and, in the case of
the Loan Combination, first to the related B Loan Noteholder, if any, and
second, to the extent such cost remains unpaid, to the Mortgage Loan. The
Special Servicer shall obtain a new Updated Valuation or a letter update every
12 months thereafter until the REO Property is sold.
(d) When and as necessary, the Special Servicer shall send to the
Trustee 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).
(e) Upon the disposition of any REO Property in accordance with this
Section 3.17, the Special Servicer shall calculate the Excess Liquidation
Proceeds allocable to a Mortgage Loan or the Loan Combination, if any, realized
in connection with such sale.
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Section 3.16 Sale of Specially Serviced Loans and REO Properties.
(a) Each of the Controlling Class Representative and the Special Servicer (in
that order) may sell or purchase, or permit the sale or purchase of, a Mortgage
Loan only on the terms and subject to the conditions set forth in this Section
3.18 or as otherwise expressly provided in or contemplated by Section 2.03(d)
and Section 9.01 or in an applicable Co-Lender Agreement.
(b) Within [60] days after a Mortgage Loan becomes a Defaulted
Mortgage Loan (or, in the case of a Balloon Loan, if a payment default shall
have occurred with respect to the related Balloon Payment, then after a
Servicing Transfer Event shall have occurred with respect to such Balloon
Payment default), the Special Servicer shall determine the fair value of such
Mortgage Loan in accordance with the Servicing Standard; provided, however, that
such determination shall be made without taking into account any effect the
restrictions on the sale of such Mortgage Loan contained herein may have on the
value of such Defaulted Mortgage Loan; provided, further, that if the Special
Servicer is then in the process of obtaining a new 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 [30]
days) after its receipt of such new Appraisal. The Special Servicer shall
recalculate, from time to time, but not less often than every [90] days, its
determination of the fair value of a Defaulted Mortgage Loan based upon changed
circumstances, new information or otherwise, in accordance with the Servicing
Standard. The Special Servicer shall notify the Trustee, the Master Servicer,
each Rating Agency and the Controlling Class Representative (and with respect to
the Loan Combination, the Directing Certificateholder and the [_____] B Loan
Noteholder promptly upon its fair value determination and any adjustment
thereto. 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 or Loan Combination, 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 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 may consider available objective third party information
obtained from generally available sources, as well as information obtained from
vendors providing real estate services to the Special Servicer, concerning the
market for distressed real estate loans and the real estate market for the
subject property type in the area where the related Mortgaged Property is
located. The Special Servicer may, to the extent it is reasonable to do so in
accordance with the Servicing Standard, conclusively rely on any opinions or
reports of qualified Independent experts in real estate or commercial mortgage
loan matters with at least five years' experience in valuing or investing in
loans similar to the subject Specially Serviced Loan, selected with reasonable
care by the Special Servicer, in making such determination. All reasonable costs
and expenses incurred by the Special Servicer pursuant to this Section 3.18(b)
shall constitute, and be reimbursable as, Property Advances. The other parties
to this Agreement shall cooperate with all reasonable requests for information
made by the Special Servicer in order to allow the Special Servicer to perform
its duties pursuant to this Section 3.18(b).
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(c) Subject to the terms set forth in Section 2.03 and with respect
to any Loan Combination, subject to the purchase option of the related B Loan
holder in accordance with the related Co-Lender Agreement, if any, and subject
to any purchase option that a mezzanine lender may have in accordance with the
related mezzanine intercreditor agreement, in the event a Mortgage Loan becomes
a Defaulted Mortgage Loan, the Controlling Class Representative and the Special
Servicer (but only if the Controlling Class Representative or the Special
Servicer, as applicable, is not an affiliate of the Mortgage Loan Seller) (in
that order) shall have an assignable option (a "Purchase Option") to purchase
such Defaulted Mortgage Loan (but not the [_____] B Loan) from the Trust Fund at
a price (the "Option Price") equal to (i) the Repurchase Price, if the Special
Servicer has not yet determined the fair value of the Defaulted Mortgage Loan,
or (ii) the fair value of the Defaulted Mortgage Loan as determined by the
Special Servicer in the manner described in Section 3.18(b) and in accordance
with the Servicing Standard, if the Special Servicer has made such fair value
determination. Any holder of a Purchase Option 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 Special Servicer and the Master 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. Notwithstanding the foregoing, the Controlling Class Representative
shall have the right to exercise its Purchase Option prior to any exercise of
the Purchase Option by the Special Servicer; provided, however, if the Purchase
Option is not exercised by the Controlling Class Representative or any assignee
thereof within [60] days of a Mortgage Loan becoming a Defaulted Mortgage Loan,
then the Special Servicer shall have the right to exercise its Purchase Option
prior to any exercise by the Controlling Class Representative and the Special
Servicer or its assignee may exercise such Purchase Option at any time during
the [15]-day period immediately following the expiration of such [60]-day
period. Following the expiration of such [15]-day period, the Controlling Class
Representative shall again have the exclusive right to exercise the Purchase
Option. If not exercised earlier, the Purchase Option with respect to any
Defaulted Mortgage Loan will automatically terminate (i) 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 after a new fair
value calculation is made pursuant to clause (b) above, (ii) 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, (iii) the
modification or pay-off, in full or at a discount, of such Defaulted Mortgage
Loan in connection with a workout, (iv) upon a repurchase of a Defaulted
Mortgage Loan by the Mortgage Loan Seller due to the Mortgage Loan Seller's
breach of a representation or document defect with respect to such Defaulted
Mortgage Loan and (v) the purchase of any B Loan holder or mezzanine lender in
accordance with the related Co-Lender Agreement, or mezzanine intercreditor
agreement, as applicable.
(d) Upon receipt of notice from the Special Servicer indicating that
a Mortgage Loan has become a Defaulted Mortgage Loan, the holder (whether the
original grantee of such option or any subsequent transferee) of the Purchase
Option may exercise the Purchase Option by providing the Master Servicer, the
Special Servicer and the Trustee at least five days prior written notice thereof
(the "Purchase Option Notice"), in the form of Exhibit N attached hereto, which
notice shall identify the Person that, on its own or through an Affiliate, will
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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 3.18(c). The exercise of any
Purchase Option pursuant to this clause (d) shall be irrevocable.
(e) If the Special Servicer or, if the Controlling Class
Representative is an affiliate of the Special Servicer, the Controlling Class
Representative or any of their respective Affiliates is identified in the
Purchase Option Notice as the Person expected to acquire the related Mortgage
Loan, the Master Servicer shall determine (or, if the Special Servicer has made
such determination, shall confirm) the fair value and must retain an appraiser
or other Independent third party (either of whom must be an MAI) (at the expense
of the Trust Fund), that the Master Servicer reasonably believes has the
requisite experience to assist it to determine the fair value (such person, the
"Third Party Appraiser") and obtain from such third party a determination as
soon as reasonably practicable after the Master Servicer has received the
written notice, of whether the Option Price represents fair value for the
Defaulted Mortgage Loan; provided that, if the Master Servicer requests the
Third Party Appraiser to perform a new Appraisal with respect to the related
Mortgaged Property, then the Third Party Appraiser retained by the Master
Servicer shall make its fair value determination with respect to such Mortgage
Loan as soon as reasonably practicable (but in any event within [forty-five
(45)] days) after the completion of such new Appraisal. Such fair value
determination made by the Master Servicer shall be made in accordance with the
Servicing Standard; provided that, absent manifest error, the Master Servicer
may conclusively rely on the opinion of the Third Party Appraiser in making such
determination; provided that, in choosing such Third Party Appraiser the Master
Servicer shall use reasonable care in accordance with the Servicing Standard. In
determining the fair value of any Defaulted Mortgage Loan, the Third Party
Appraiser retained by the Master Servicer shall take into account, among other
factors, the period and amount of the delinquency on such Mortgage Loan or Loan
Combination, 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 Third Party
Appraiser retained by the Master Servicer shall refer to the Servicing Standard
and all other relevant information delivered to it by the Master Servicer or
otherwise contained in the Mortgage File; provided that the Third Party
Appraiser retained by the Master Servicer shall take account of any known change
in circumstances regarding the related Mortgaged Property that has occurred
subsequent to, and that would, in its reasonable judgment, materially affect the
value of the related Mortgaged Property. Furthermore, the Third Party Appraiser
retained by the Master Servicer shall consider all available objective
third-party information obtained from generally available sources, 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 Third Party Appraiser retained by the Master Servicer may rely on
the opinion and reports of other parties in making such determination and on the
most current Appraisal obtained for the related Mortgaged Property pursuant to
this Agreement. The costs of the Third Party Appraiser and all appraisals,
inspection reports and broker opinions of value, reasonably incurred by such
Third Party Appraiser or otherwise incurred pursuant to this subsection shall be
advanced by the Master Servicer and shall constitute, and be reimbursable as
Property Advances (or if such advance is deemed to be a Nonrecoverable Advance
such costs shall be reimbursable as Trust Fund expenses from its Collection
Account pursuant to Section 3.06(b)) or the Loan Combination
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Collection Account pursuant to Section 3.06(c). The other parties to this
Agreement shall cooperate with all reasonable requests for information.
(f) Unless and until the Purchase Option with respect to a Defaulted
Mortgage Loan is exercised, the Special Servicer shall pursue such other
resolution strategies available hereunder with respect to such Defaulted
Mortgage Loan, including, without limitation, workout and foreclosure, as the
Special Servicer may deem appropriate consistent with the Servicing Standard;
provided, however, the Special Servicer will not be permitted to sell the
Defaulted Mortgage Loan other than in connection with the exercise of the
related Purchase Option, or in connection with a repurchase under Section 2.03
by the Mortgage Loan Seller or, with respect to the Loan Combination or any
Mortgage Loan or Loan Combination with a related mezzanine loan, the exercise of
the purchase option, if any, set forth in the related Co-Lender Agreement or
mezzanine intercreditor agreement, as applicable, by the holder of the related B
Loan or mezzanine lender. In connection with the foregoing, the Special Servicer
may charge prospective bidders, and may retain, fees that approximate the
Special Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating bids without obligation to deposit such
amounts into the Collection Account or in the case of the Loan Combination, the
Loan Combination Collection Account or the REO Accounts.
(g) The Special Servicer shall use reasonable efforts to solicit
offers for each REO Property in such manner as will be reasonably likely to
realize a fair price within the time period provided for by Section 3.17(a). The
Special Servicer (with the consent of the Directing Certificateholder) shall
accept the first (and, if multiple bids are contemporaneously received, highest)
cash bid received from any Person that constitutes a fair price for such REO
Property. If the Special Servicer determines, in its good faith and reasonable
judgment, that it will be unable to realize a fair price for any REO Property
within the time constraints imposed by Section 3.17(a), then the Special
Servicer (with the consent of the Directing Certificateholder) shall dispose of
such REO Property upon such terms and conditions as the Special Servicer shall
deem necessary and desirable to maximize the recovery thereon under the
circumstances and, in connection therewith, shall accept the highest outstanding
cash bid, regardless of from whom received.
The Special Servicer shall give the Trustee, the Master Servicer and
the Directing Certificateholder, not less than ten Business Days' prior written
notice of its intention to sell any REO Property, and notwithstanding anything
to the contrary herein, neither the Trustee, in its individual capacity, nor any
of its Affiliates may bid for or purchase any REO Property pursuant hereto.
(h) Whether any cash bid constitutes a fair price for any REO
Property, as the case may be, for purposes of Section 3.18(g), shall be
determined by the Special Servicer, if the highest bidder is a Person other than
the Special Servicer, and by the Trustee, if the highest bidder is the Special
Servicer; provided, however, that no bid from an Interested Person shall
constitute a fair price unless (i) it is the highest bid received and (ii) at
least two other bids are received from independent third parties. In determining
whether any offer received from an Interested Person represents a fair price for
any such REO Property, the Trustee shall be supplied with and shall rely on the
most recent appraisal or Updated Appraisal conducted in accordance with this
Agreement within the preceding 12-month period or in the absence of any such
appraisal, on a narrative appraisal prepared by an appraiser selected by the
Special Servicer if the
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Special Servicer is not making an offer with respect to an REO Property (or by
the Master Servicer if the Special Servicer is making such an offer). The cost
of any such narrative appraisal shall be covered by, and shall be reimbursable
as, a Property Advance. In determining whether any offer from a Person other
than an Interested Person constitutes a fair price for any such REO Property,
the Special Servicer shall take into account (in addition to the results of any
appraisal, updated appraisal or narrative appraisal that it may have obtained
pursuant to this Agreement within the prior 12 months), and in determining
whether any offer from an Interested Person constitutes a fair price for any
such REO Property, any appraiser shall be instructed to take into account, as
applicable, among other factors, the period and amount of the occupancy level
and physical condition of the Mortgaged Property or REO Property, the state of
the local economy and the obligation to dispose of any REO Property within the
time period specified in Section 3.17(a). The Repurchase Price (which, in
connection with the administration of an REO Property related to the Loan
Combination, shall be construed and calculated as if the loans in such Loan
Combination together constitute a single Mortgage Loan thereunder) for any REO
Property shall in all cases be deemed a fair price.
(i) Subject to subsections (g) and (h) above, the Special Servicer
shall act on behalf of the Trustee in negotiating and taking any other action
necessary or appropriate in connection with the sale of any REO Property, and
the collection of all amounts payable in connection therewith. In connection
therewith, the Special Servicer may charge for its own account prospective
offerors, and may retain, fees that approximate the Special Servicer's actual
costs in the preparation and delivery of information pertaining to such sales or
exchanging offers without obligation to deposit such amounts into the Collection
Account or in the case of the Loan Combination, the Loan Combination Collection
Account. Any sale of an REO Property shall be final and without recourse to the
Trustee or the Trust Fund (except such recourse to the Trust Fund imposed by
those representations and warranties typically given in such transactions, any
prorations applied thereto and any customary closing matters), and if such sale
is consummated in accordance with the terms of this Agreement, none of the
Special Servicer, the Master Servicer, the Depositor or the Trustee shall have
any liability to any Certificateholder or the [_____] B Loan Noteholder with
respect to the purchase price therefor accepted by the Special Servicer or the
Trustee.
(j) Any sale of an REO Property shall be for cash only.
(k) Notwithstanding any of the foregoing paragraphs of this Section
3.18, the Special Servicer shall not be obligated to accept the highest cash
offer if the Special Servicer determines, in its reasonable and good faith
judgment, that rejection of such offer would be in the best interests of the
Certificateholders and, in the case of the Loan Combination, in the best
interests of the [_____] B Loan Noteholder, and the Special Servicer may accept
a lower cash offer (from any Person other than itself or an Affiliate) if it
determines, in its reasonable and good faith judgment, 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) and, in the case of the Loan Combination, in the best
interests of the [_____] B Loan Noteholder.
(l) With respect to the [________] Mortgage Loan, upon such Mortgage
Loan becoming a Defaulted Mortgage Loan, the Trustee shall promptly notify, in
writing, the holder of
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the related B Loan. The Purchase Option with respect to the [________] Mortgage
Loan, shall be subject to the purchase rights of the holder of the related B
Loan in accordance with the terms of and as set forth in the related Co-Lender
Agreement, provided that with respect to the [________] Mortgage Loan, the
[________] B Loan Noteholder shall not have the right to purchase from the
Trust, and the Trust shall not have the right to sell to the [________] B Loan
Noteholder, less than all of the [________] Mortgage Loan (i.e. both Notes that
make up the [________] Mortgage Loan).
Section 3.17 Additional Obligations of The Master Servicer and
Special Servicer; Inspections. (a) The Master Servicer (at its own expense) (or,
with respect to Specially Serviced Loans and REO Properties, the Special
Servicer) shall inspect or cause to be inspected each Mortgaged Property
securing a Mortgage Loan that is servicing at such times and in such manner as
is consistent with the Servicing Standard, but in any event shall inspect each
Mortgaged Property with an Allocated Loan Amount 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 [____] (or at such decreased frequency as
each Rating Agency shall have confirmed in writing to the Master Servicer will
not result a downgrade, qualification or withdrawal of the then-current ratings
assigned to any Class of the Certificates); provided, however, that if any
Mortgage Loan or Loan Combination becomes a Specially Serviced Loan, the Special
Servicer is required to inspect or cause to be inspected the related Mortgaged
Property as soon as practicable but in no event less than [60] days after the
Mortgage Loan remains a Specially Serviced Loan. The reasonable cost of each
such inspection performed by the Special Servicer will be paid by the Master
Servicer as a Property Advance or if such Property Advance would not be
recoverable, as an Additional Trust Fund Expense. The Master Servicer or the
Special Servicer, as applicable, will be required to prepare a written report of
the inspection describing, among other things, the condition of and any damage
to the Mortgaged Property securing a Mortgage Loan that it is servicing and
specifying the existence of any material vacancies in such Mortgaged Property,
any sale, transfer or abandonment of such Mortgaged Property of which it has
actual knowledge, any material adverse change in the condition of the Mortgaged
Property, or any visible material waste committed on applicable Mortgaged
Property. The Master Servicer or Special Servicer, as applicable, shall send to
the Rating Agencies and, upon request, to the Underwriters within [20] days of
completion, each inspection report, unless the Rating Agencies and, upon
request, the Underwriters, as applicable, notify the Master Servicer or Special
Servicer, as applicable, that it does not want such reports.
(b) With respect to each Mortgage Loan or Loan Combination, the
Master Servicer (or the Special Servicer, in the case of a Specially Serviced
Loan) shall enforce the Trustee's rights with respect to the Manager under the
related Loan Documents.
(c) With respect to any Mortgage Loan that has been subject to a
Principal Prepayment and a Prepayment Interest Shortfall (other than at the
request of or with the consent of the Controlling Class Representative), the
Master Servicer of such Mortgage Loan shall deliver to the Trustee on the Master
Servicer Remittance Date for deposit in the Lower-Tier Distribution Account,
without any right of reimbursement therefor, a cash payment (a "Servicer
Prepayment Interest Shortfall"), in an amount equal to the lesser of (x) the
aggregate amount of Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received in respect of the Mortgage Loans serviced by it
(other than a Specially Serviced Loan) during the
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related Collection Period, and (y) the aggregate of (A) that portion of its
Servicing Fees that is being paid in such Collection Period with respect to the
Mortgage Loans serviced by it (other than a Specially Serviced Loan) and (B) all
Prepayment Interest Excess received during the related Collection Period on the
Mortgage Loans (other than a Specially Serviced Loan) serviced by the Master
Servicer; provided, however, that the rights of the Certificateholders to offset
of the aggregate Prepayment Interest Shortfalls shall not be cumulative.
Notwithstanding the previous sentence, if any Mortgage Loan (other than a
Specially Serviced Loan) has been subject to a Principal Prepayment and a
Prepayment Interest Shortfall as a result of (i) the payment of insurance
proceeds or condemnation proceeds, (ii) subsequent to a default under the
related Mortgage Loan Documents (provided that the Master Servicer reasonably
believes that acceptance of such prepayment is consistent with the Servicing
Standard), (iii) pursuant to applicable law or a court order, the portion of the
Servicing Fee described in clause (A) of the preceding sentence shall be limited
to that portion of its Servicing Fees computed at a rate of [__]% per annum and
paid in such Collection Period with respect to the Mortgage Loans serviced by it
(other than Specially Serviced Loans).
(d) The Master Servicer shall, as to each Mortgage Loan or Loan
Combination that it is servicing that is secured by the interest of the related
Borrower under a Ground Lease, promptly (and in any event within 45 days) after
the Closing Date notify the related ground lessor of the transfer of such
Mortgage Loan or Loan Combination to the Trust pursuant to this Agreement and
inform such ground lessor that any notices of default under the related Ground
Lease should thereafter be forwarded to the Master Servicer.
Section 3.18 Authenticating Agent. The Trustee may appoint an
Authenticating Agent to execute and to authenticate Certificates. The
Authenticating Agent must be acceptable to the Master Servicer and must be a
corporation organized and doing business under the laws of the United States of
America or any state, having a principal office and place of business in a state
and city acceptable to the Master Servicer, having a combined capital and
surplus of at least $[15,000,000], authorized under such laws to do a trust
business and subject to supervision or examination by federal or state
authorities. The Trustee shall serve as the initial Authenticating Agent and the
Trustee hereby accepts such appointment.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least
[30] days' advance written notice of resignation to the Trustee, the Depositor
and the Master Servicer. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice of termination to the
Authenticating Agent, the Depositor and the Master Servicer. Upon receiving a
notice of resignation or upon such a termination, or in case at any time the
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 3.20, the Trustee may appoint a successor
Authenticating Agent, which shall be acceptable to the Master Servicer and the
Depositor, and shall mail notice of such appointment to all Certificateholders.
Any successor Authenticating Agent upon acceptance of its appointment
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hereunder shall become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 3.20.
The Authenticating Agent shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee. Any
compensation paid to the Authenticating Agent shall be an unreimbursable expense
of the Trustee.
Section 3.19 Appointment of Custodians. The Trustee shall be the
initial Custodian hereunder. The Trustee may appoint one or more Custodians to
hold all or a portion of the Mortgage Files on behalf of the Trustee and
otherwise perform the duties set forth in Article II, by entering into a
Custodial Agreement with any Custodian who is not the Trustee or the Depositor.
The Trustee agrees to comply with the terms of each Custodial Agreement and to
enforce the terms and provisions thereof against the Custodian for the benefit
of the Certificateholders. The Trustee shall not be liable for any act or
omission of the Custodian under the Custodial Agreement. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have a combined capital and surplus of at least $[10,000,000], shall have
a long-term debt rating of at least "BBB" from [S&P] and "Baa" from [Moody's]
and shall be qualified to do business in the jurisdiction in which it holds any
Mortgage File. Each Custodial Agreement may be amended only as provided in
Section 10.07. Any compensation paid to the Custodian shall be an unreimbursable
expense of the Trustee. If the Custodian is an entity other than the Trustee,
the Custodian shall maintain a fidelity bond in the form and amount that are
customary for securitizations similar to the securitization evidenced by this
Agreement. The Custodian shall be deemed to have complied with this provision if
one of its Affiliates has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Custodian. In
addition, the Custodian shall keep in force during the term of this Agreement a
policy or policies of insurance covering loss occasioned by the errors and
omissions of its officers and employees in connection with its obligations
hereunder in the form and amount that are customary for securitizations similar
to the securitization evidenced by this Agreement. All fidelity bonds and
policies of errors and omissions insurance obtained under this Section 3.21
shall be issued by a Qualified Insurer.
Section 3.20 Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts. The Master Servicer shall administer each
Lock-Box Account, Cash Collateral Account, Escrow Account and Reserve Account in
accordance with the related Mortgage or Loan Agreement, Cash Collateral Account
Agreement or Lock-Box Agreement, if any relating to the Mortgage Loans that it
is servicing.
Section 3.21 Property Advances. (a) The Master Servicer (or, to the
extent provided in Section 3.24(c), the Trustee) to the extent specifically
provided for in this Agreement, shall make any Property Advances as and to the
extent otherwise required pursuant to the terms hereof with respect to the
Mortgage Loans or Loan Combination that it is servicing. For purposes of
distributions to Certificateholders and compensation to the Master Servicer, the
Special Servicer or the Trustee, Property Advances shall not be considered to
increase the Stated Principal Balance of any Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so provide.
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(b) Notwithstanding anything in this Agreement to the contrary, the
Special Servicer shall give the Master Servicer not less than five Business
Days' written notice with respect to any Property Advance to be made on any
Specially Serviced Loan, before the date on which the Master Servicer is
required to make such Property Advance with respect to such Specially Serviced
Loan or REO Loan; provided, however, that the Special Servicer shall be required
to provide the Master Servicer with only two Business Days' written notice in
respect of Property Advances required to be made on an urgent or emergency basis
(which may include, without limitation, Property Advances required to make tax
or insurance payments). In addition, in the event that the Property Advance must
be made sooner than the two Business Days referred to in the previous sentence,
the Special Servicer may make such Property Advances on an emergency basis with
respect to any Specially Serviced Loan or REO Loan.
(c) The Master Servicer shall notify the Trustee in writing promptly
upon, and in any event within one Business Day after, becoming aware that it
will be unable to make any Property Advance required to be made pursuant to the
terms hereof, and in connection therewith, shall set forth in such notice the
amount of such Property Advance, the Person to whom it is to be paid, and the
circumstances and purpose of such Property Advance, and shall set forth therein
information and instructions for the payment of such Property Advance, and, on
the date specified in such notice for the payment of such Property Advance, or,
if the date for payment has passed or if no such date is specified, then within
five Business Days following such notice, the Trustee, subject to the provisions
of Section 3.24(d), shall pay the amount of such Property Advance in accordance
with such information and instructions.
(d) The Special Servicer shall promptly furnish any party required
to make Property Advances hereunder with any information in its possession
regarding the Specially Serviced Loans and REO Properties as such party required
to make Property Advances may reasonably request for purposes of making
recoverability determinations. Any request by the Special Servicer that the
Master Servicer make a Property Advance shall be deemed to be a determination by
the Special Servicer that such requested Property Advance is not a
Nonrecoverable Property Advance.
Notwithstanding anything herein to the contrary, no Property Advance
shall be required hereunder if the Person otherwise required to make such
Property Advance determines that such Property Advance would, if made,
constitute a Nonrecoverable Property Advance. In addition, the Master Servicer
shall not make any Property Advance to the extent that it has received written
notice that the Special Servicer has determined that such Property Advance
would, if made, constitute a Nonrecoverable Property Advance. In making such
recoverability determination, such Person will be entitled to (i) give due
regard to the existence of any Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount with respect to other Mortgage Loans, the recovery of
which, at the time of such consideration, is being deferred or delayed by the
Master Servicer, the Special Servicer or the Trustee, as applicable, in light of
the fact that proceeds on the related Mortgage Loan are a source of recovery not
only for the Property Advance under consideration, but also as a potential
source of recovery of such Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount which is being or may be deferred or delayed and (ii)
consider (among other things) only the obligations of the Borrower under the
terms of the related Mortgage Loan (or the Loan Combination, as applicable) as
it may have been modified, (iii) consider (among other things) the related
Mortgaged
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Properties in their "as is" or then current conditions and occupancies, as
modified by such party's assumptions (consistent with the applicable Servicing
Standard in the case of the Master Servicer or the Special Servicer) regarding
the possibility and effects of future adverse changes with respect to such
Mortgaged Properties, (iv) estimate and consider (consistent with the Servicing
Standard in the case of the Master Servicer or the Special Servicer) (among
other things) future expenses and (v) estimate and consider (among other things)
the timing of recoveries.
The Master Servicer, the Special Servicer and the Trustee, as
applicable, shall consider Unliquidated Advances in respect of prior Property
Advances for purposes of nonrecoverability determinations as if such
Unliquidated Advances were unreimbursed Property Advances. If an Appraisal of
the related Mortgaged Property shall not have been obtained within the prior 12
month period (and the Master Servicer and the Trustee shall each request any
such appraisal from the Special Servicer prior to ordering an Appraisal pursuant
to this sentence) or if such an Appraisal shall have been obtained but as a
result of unforeseen occurrences, such Appraisal does not, in the good faith
determination of the Master Servicer, the Special Servicer or the Trustee,
reflect current market conditions, and the Master Servicer or the Trustee, as
applicable, and the Special Servicer cannot agree on the appropriate downward
adjustment to such Appraisal, the Master Servicer, the Special Servicer or the
Trustee, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance, obtain an Appraisal for such purpose at the expense of the
Trust Fund (and, in the case of the Loan Combination, first of the related B
Loan Noteholder, if any, and second, to the extent such expense remains unpaid,
of the Mortgage Loan.
Any determination by the Master Servicer, the Special Servicer or
the Trustee that it has made a Nonrecoverable Property Advance or that any
proposed Property Advance, if made, would constitute a Nonrecoverable Property
Advance shall be evidenced in the case of the Master Servicer or the Special
Servicer by a certificate of a Servicing Officer delivered to the other, to the
other Servicer and to the Trustee and the Depositor and, in the case of the
Trustee, by a certificate of a Responsible Officer of the Trustee, delivered to
the Depositor, the Master Servicer and the Special Servicer, which in each case
sets forth such nonrecoverability determination and the considerations of the
Master Servicer, the Special Servicer or the Trustee, as applicable, forming the
basis of such determination (such certificate accompanied by, to the extent
available, income and expense statements, rent rolls, occupancy status, property
inspections and other information used by the Master Servicer, the Special
Servicer or the Trustee, as applicable, to make such determination, together
with any existing Appraisal or any Updated Appraisal); provided, however, that
the Special Servicer may, at its option, make a determination in accordance with
the Servicing Standard, that any Property Advance previously made or proposed to
be made is nonrecoverable and shall deliver to the Master Servicer and the
Trustee notice of such determination. Any such determination shall be conclusive
and binding on the Master Servicer, the Special Servicer and the Trustee.
Any such Person may update or change its recoverability
determinations at any time (but not reverse any other Person's determination
that a Property Advance is a Nonrecoverable Advance) and (consistent with the
applicable Servicing Standard in the case of the Master Servicer or the Special
Servicer) may obtain, at the expense of the Trust (and, in the case of the Loan
Combination, first of the related B Loan Noteholder, if any, and second, to the
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extent such expense remains unpaid, of the Trust Fund), any analysis, Appraisals
or market value estimates or other information for such purposes. Absent bad
faith, any such determination as to the recoverability of any Property Advance
shall be conclusive and binding on the Certificateholders and the [_____] B Loan
Noteholder.
Notwithstanding the above, (i) the Trustee shall be entitled to rely
conclusively on any determination by the Master Servicer or the Special
Servicer, as applicable, that a Property Advance, if made, would be a
Nonrecoverable Property Advance and (ii) the Master Servicer will be entitled to
rely conclusively on any nonrecoverability determination of the Special
Servicer. The Trustee, in determining whether or not a Property Advance
previously made is, or a proposed Property Advance, if made, would be, a
Nonrecoverable Property Advance shall be subject to the standards applicable to
the Master Servicer hereunder.
With respect to the payment of insurance premiums and delinquent tax
assessments, in the event that the Master Servicer determines that a Property
Advance of such amounts would constitute a Nonrecoverable Advance, the Master
Servicer shall deliver notice of such determination to the Trustee and the
Special Servicer. Upon receipt of such notice, the Special Servicer shall
determine (with the reasonable assistance of the Master Servicer) whether the
payment of such amount (i) is necessary to preserve the related Mortgaged
Property and (ii) would be in the best interests of the Certificateholders and,
in the case of the [_____] B Loan, the [_____] B Loan Noteholder. If the Special
Servicer determines that the payment of such amount (i) is necessary to preserve
the related Mortgaged Property and (ii) would be in the best interests of the
Certificateholders and, in the case of the [_____] B Loan, the [_____] B Loan
Noteholder, the Special Servicer shall direct the Master Servicer in writing to
make such payment and the Master Servicer shall make such payment, to the extent
of available funds, from amounts in the Collection Account or, if the Loan
Combination is involved, from amounts in the Loan Combination Collection
Account.
Notwithstanding anything to the contrary contained in this Section
3.24, the Master Servicer may elect (but shall not be required) to make a
payment out of its Collection Account to pay for certain expenses specified in
this sentence notwithstanding that the Master Servicer has determined that a
Property Advance with respect to such expenditure would be a Nonrecoverable
Property Advance (unless, with respect to Specially Serviced Loans or REO Loans,
the Special Servicer has notified the Master Servicer to not make such
expenditure), where making such expenditure would prevent (i) the related
Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any
event that would cause a loss of the priority of the lien of the related
Mortgage, or the loss of any security for the related Mortgage Loan; provided
that in each instance, the Master Servicer determines in accordance with the
Servicing Standard (as evidenced by a certificate of a Servicing Officer
delivered to the Trustee) that making such expenditure is in the best interests
of the Certificateholders (and, in the case of the Loan Combination, the [_____]
B Loan Noteholder), all as a collective whole. The Master Servicer may elect to
obtain reimbursement of Nonrecoverable Property Advances from the Trust Fund in
accordance with Section 3.06.
(e) The Master Servicer, the Special Servicer and/or the Trustee, as
applicable, shall be entitled to the reimbursement of Property Advances made by
any of them to the extent permitted pursuant to Section 3.06, if applicable, of
this Agreement, together with any related Advance Interest Amount in respect of
such Property Advances, and the Master Servicer,
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the Special Servicer and the Trustee each hereby covenants and agrees to
promptly seek and effect the reimbursement of such Property Advances from the
related Borrowers to the extent permitted by applicable law and the related Loan
Documents.
Section 3.22 Appointment of Special Servicer. (a) [________] is
hereby appointed as the initial Special Servicer to service each Specially
Serviced Loan.
(b) The Directing Certificateholder shall be entitled to remove (at
its own expense if such removal is without cause) the Special Servicer with or
without cause and to appoint a successor Special Servicer with respect to all of
the Specially Serviced Loans (including each Specially Serviced Loan that is the
Loan Combination); provided, that in the event that the Directing
Certificateholder is not the Controlling Class Representative, such Directing
Certificateholder may only terminate and appoint a replacement Special Servicer
with respect to the Loan Combination. If there is a Special Servicer Event of
Default, the Special Servicer shall be removed and replaced pursuant to Sections
7.01(c) and 7.02. The Trustee shall, promptly after receiving any such removal
notice, so notify each Rating Agency. If the replacement designated in such
notice is consented to by the Trustee (such consent not to be unreasonably
withheld), the termination of the Special Servicer and appointment of a
successor Special Servicer pursuant to this Section 3.25(b) shall not be
effective until (i) each Rating Agency confirms to the Trustee in writing that
such appointment, in and of itself, would not cause a downgrade, qualification
or withdrawal of the then-current ratings assigned to any Class of Certificates,
(ii) the successor special servicer has assumed all of its responsibilities,
duties and liabilities hereunder pursuant to a writing reasonably satisfactory
to the Trustee and (iii) receipt by the Trustee of an Opinion of Counsel to the
effect that (x) the designation of such replacement to serve as Special Servicer
is in compliance with this Agreement, (y) such replacement will be bound by the
terms of this Agreement and (z) this Agreement will be enforceable against such
replacement in accordance with its terms. Any successor Special Servicer shall
make the representations and warranties provided for in Section 2.04(b) mutatis
mutandis. In addition, any replacement Special Servicer that will service the
Loan Combination shall meet any requirements specified in the related Co-Lender
Agreement.
The existing Special Servicer shall be deemed to have been removed
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided, however, that the Special Servicer removed pursuant to this
Section shall be entitled to receive, and shall have received, all amounts
accrued or owing to it under this Agreement on or prior to the effective date of
such resignation and it shall continue to be entitled to any rights that accrued
prior to the date of such resignation (including the right to receive all fees,
expenses and other amounts accrued or owing to it under this Agreement, plus
interest at the Advance Rate with respect to any unpaid Property Advances made
by such Special Servicer with respect to periods prior to the date of such
removal and the right to receive any Workout Fee specified in Section 3.12(c) in
the event that the Special Servicer is terminated and any indemnification rights
that the Special Servicer is entitled to pursuant to Section 6.03(a))
notwithstanding any such removal. Such removed Special Servicer shall cooperate
with the Trustee and the replacement Special Servicer in effecting the
termination of the resigning Special Servicer's responsibilities and rights
hereunder, including without limitation the transfer within two Business Days to
the successor Special Servicer for administration by it of all cash amounts that
are thereafter received with respect to the Mortgage Loans.
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(c) The appointment of any such successor Special Servicer shall not
relieve the Master Servicer or the Trustee of their respective obligations to
make Advances as set forth herein; provided, however, the Master Servicer shall
not be liable for any actions or any inaction of such successor Special
Servicer. Any termination fee payable to the terminated Special Servicer (and it
is acknowledged that there is no such fee payable in the event of a termination
for breach of this Agreement) shall be paid by the Certificateholders or the
Directing Certificateholder, as applicable, so terminating the Special Servicer
and shall not in any event be an expense of the Trust Fund or the [_____] B Loan
Noteholder (unless such [_____] B Loan Noteholder is the Directing
Certificateholder).
Section 3.23 Transfer of Servicing Between The Master Servicer and
the Special Servicer; Record Keeping; Asset Status Report. (a) Upon the
occurrence of any event specified in the definition of Specially Serviced Loan
with respect to any Mortgage Loan or Loan Combination of which the Master
Servicer may notice, the Master Servicer shall immediately give notice thereof
to the Special Servicer, the Trustee, the Mortgage Loan Seller, the Controlling
Class Certificateholders and, if applicable, the [_____] B Loan Noteholder and
shall use its best efforts to provide the Special Servicer with all information,
documents (but excluding the original documents constituting the Mortgage File)
and records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to such Mortgage Loan or Loan Combination, as
applicable, and reasonably requested by the Special Servicer to enable it to
assume its duties hereunder with respect thereto without acting through a
Sub-Servicer. The Master Servicer shall use its best efforts to comply with the
preceding sentence within five Business Days of the date such Mortgage Loan or
Loan Combination becomes a Specially Serviced Loan and in any event shall
continue to act as Servicer and administrator of such Mortgage Loan or Loan
Combination until the Special Servicer has commenced the servicing of such
Mortgage Loan or Loan Combination, which shall occur upon the receipt by the
Special Servicer of the information, documents and records referred to in the
preceding sentence. With respect to each Mortgage Loan or Loan Combination that
becomes a Specially Serviced Loan, the Master Servicer shall instruct the
related Borrower to continue to remit all payments in respect of such Mortgage
Loan or Loan Combination to the Master Servicer. Notwithstanding the preceding
sentence, with respect to each Mortgage Loan or Loan Combination that becomes a
Specially Serviced Loan, the Special Servicer may instruct the related Borrower
to remit all payments in respect of such Mortgage Loan or Loan Combination to
the Special Servicer, provided that the payee in respect of such payments shall
remain the Master Servicer. The Special Servicer shall remit to the Master
Servicer any such payments received by it pursuant to the preceding sentence
within one Business Day of receipt. The Master Servicer shall forward any
notices it would otherwise send to the Borrower of a Specially Serviced Loan to
the Special Servicer who shall send such notice to the related Borrower.
Upon determining that a Specially Serviced Loan has become a
Corrected Mortgage Loan, the Special Servicer shall immediately give notice
thereof to the Master Servicer, and upon giving such notice, such Mortgage Loan
or Loan Combination shall cease to be a Specially Serviced Loan in accordance
with the first proviso of the definition of Specially Serviced Loan, the Special
Servicer's obligation to service such Mortgage Loan or Loan Combination shall
terminate and the obligations of the Master Servicer to service and administer
such Mortgage Loan or Loan Combination as a Mortgage Loan or Loan Combination
that is not a Specially Serviced Loan shall resume. In addition, if the related
Borrower has been instructed,
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pursuant to the preceding paragraph, to make payments to the Special Servicer,
upon such determination, the Special Servicer shall instruct the related
Borrower to remit all payments in respect of such Specially Serviced Loan
directly to the Master Servicer.
(b) In servicing any Specially Serviced Loan, the Special Servicer
shall provide to the Custodian originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (to the
extent such documents are in the possession of the Special Servicer) and copies
of any additional related Mortgage Loan information, including correspondence
with the related Borrower, and the Special Servicer shall promptly provide
copies of all of the foregoing to the Master Servicer as well as copies of any
analysis or internal review prepared by or for the benefit of the Special
Servicer.
(c) Not later than two Business Days preceding each date on which
the Master Servicer are required to furnish a report under Section 3.13(a) to
the Trustee, the Special Servicer shall deliver to the Trustee, with a copy to
the Master Servicer, a written statement describing, on a loan by loan basis,
(i) the amount of all payments on account of interest received on each Specially
Serviced Loan, the amount of all payments on account of principal, including
Principal Prepayments, on each Specially Serviced Loan, the amount of Net
Insurance Proceeds and Net Liquidation Proceeds received with respect to each
Specially Serviced Loan, and the amount of net income or net loss, as determined
from 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 rental income
that does not constitute Rents from Real Property with respect to the REO
Property relating to each applicable Specially Serviced Loan, in each case in
accordance with Section 3.17 (it being understood and agreed that to the extent
this information is provided in accordance with Section 3.13(f), this Section
3.26(c) shall be deemed to be satisfied) and (ii) such additional information
relating to the Specially Serviced Loans as the Master Servicer or the Trustee
reasonably request, to enable it to perform its duties under this Agreement.
Such statement and information shall be furnished to the Master Servicer in
writing and/or in such electronic media as is acceptable to the Master Servicer.
(d) Notwithstanding the provisions of the preceding Section 3.26(c),
the Master Servicer shall maintain ongoing payment records with respect to each
of the Specially Serviced Loans relating to a Mortgage Loan that it is servicing
and shall provide the Special Servicer with any information reasonably required
by the Special Servicer to perform its duties under this Agreement. The Special
Servicer shall provide the Master Servicer with any information reasonably
required by the Master Servicer to perform its duties under this Agreement.
(e) [Reserved.]
(f) No later than 30 days after a Mortgage Loan or the Loan
Combination becomes a Specially Serviced Loan, the Special Servicer shall
deliver to each Rating Agency, the Master Servicer, the Controlling Class
Representative, the [_____] B Loan Noteholder, and upon request, the
Underwriters, a report (the "Asset Status Report") with respect to such Mortgage
Loan or Loan Combination and the related Mortgaged Property; provided, however,
the Special Servicer shall not be required to deliver an Asset Status Report to
the Controlling Class Representative if the Special Servicer and the Controlling
Class Representative are the same
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entity. Such Asset Status Report shall set forth the following information to
the extent reasonably determinable:
(i) date of transfer of servicing of such Mortgage Loan or Loan
Combination to the Special Servicer;
(ii) summary of the status of such Specially Serviced Loan and any
negotiations with the related Borrower;
(iii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standard, 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 or Loan Combination and whether outside legal
counsel has been retained;
(iv) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(v) the Special Servicer's recommendations on how such Specially
Serviced Loan might be returned to performing status (including the
modification of a monetary term, and any work-out, restructure or debt
forgiveness) and returned to the Master Servicer for regular servicing or
foreclosed or otherwise realized upon (including any proposed sale of a
Defaulted Mortgage Loan or REO Property);
(vi) a copy of the last obtained Appraisal of the Mortgaged
Property; and
(vii) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within 10 Business Days of receiving an Asset Status Report, the
Controlling Class Representative (subject to Section 3.31 or 3.34, as
applicable) 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 such Special Servicer may not take any action
that is contrary to applicable law, this Agreement, the Servicing Standard
(taking into consideration in the best interests of all the Certificateholders
and, with respect to the Loan Combination, the [_____] B Loan Noteholder) or the
terms of the applicable Loan Documents. If the Controlling Class Representative
disapproves such Asset Status Report within such [10] Business Day period, the
Special Servicer will revise such Asset Status Report and deliver to the
Controlling Class Representative, the [_____] B Loan Noteholder, the Rating
Agencies and the Master Servicer a new Asset Status Report as soon as
practicable, but in no event later than [30] Business Days after such
disapproval. The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.26(f) until the Controlling Class
Representative fails 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 a determination consistent with the Servicing
Standard, that such objection is not in the best interests of all the
Certificateholders and the [_____] B Loan Noteholder, if applicable. In any
event, if the Controlling Class Representative does not approve an Asset Status
Report within [60] Business Days from the first submission of an Asset Status
Report, the Special
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Servicer may act upon the most recently submitted form of Asset Status Report
where required to comply with the Servicing Standard. 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, and in
particular, shall modify and resubmit such Asset Status Report to the
Controlling Class Representative (with a copy to the Trustee) if (i) the
estimated sales proceeds, foreclosure proceeds, work-out or restructure terms or
anticipated debt forgiveness varies materially from the amount on which the
original report was based or (ii) the related Borrower becomes the subject of
bankruptcy proceedings. 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, if
the Loan Combination is involved, the [_____] B Loan Noteholder, as a collective
whole, and it has made a reasonable effort to contact the Controlling Class
Representative and, if the Loan Combination is involved, the [_____] B Loan
Noteholder and (ii) in any case, shall determine whether such affirmative
disapproval is not in the best interests of all the Certificateholders and, if
the Loan Combination is involved, the [_____] B Loan Noteholder (as a collective
whole) pursuant to the Servicing Standard, and, upon making such determination,
shall implement the recommended action outlined in the Asset Status Report. The
Asset Status Report is not intended to replace or satisfy any specific consent
or approval right which the Controlling Class Representative may have.
Notwithstanding the foregoing, with respect to the Loan Combination, the
Directing Certificateholder shall be entitled to a comparable Asset Status
Report and the related approval rights, but the procedure and timing for
approval by the Directing Certificateholder of the related Asset Status Report
shall be governed by the terms set forth in Section 3.31 or 3.34 of this
Agreement, as applicable to the Loan Combination.
The Special Servicer shall have the authority to meet with the
Borrower for any Specially Serviced Loan and take such actions consistent with
the Servicing Standard 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 Standard, this Agreement, applicable law or the related Loan
Documents.
No direction of the Directing Certificateholder shall (a) require,
permit or cause the Special Servicer to violate the terms of a Specially
Serviced Loan, applicable law or any provision of this Agreement, including, but
not limited to, Section 3.09, Section 3.18, Section 3.20 and Section 3.29 and
the Special Servicer's obligation to act in accordance with the Servicing
Standard and to maintain the REMIC status of the Lower-Tier REMIC and the
Upper-Tier REMIC, or (b) result in the imposition of a "prohibited transaction"
or "contribution" tax under the REMIC Provisions, or (c) expose the Master
Servicer, the Special Servicer, the Depositor, the Mortgage Loan Seller, the
Trust Fund, the Trustee or their respective officers, directors, employees or
agents to any claim, suit or liability or (d) materially expand the scope of the
Special Servicer's, Trustee's or the Master Servicer's responsibilities under
this Agreement. The Special Servicer shall not be required to follow any
direction of the Directing Certificateholder described in this paragraph.
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(g) The Master Servicer may, with the consent of the Directing
Certificateholder, effect two extensions of up to [6] months each of a Mortgage
Loan or Loan Combination that it is servicing with an original term-to-maturity
of [5] years or less; provided, however, that the related Borrower is in default
with respect to such Mortgage Loan or Loan Combination or, in the judgment of
the Master Servicer, such default is reasonably foreseeable. In addition, the
Special Servicer may, subject to the Servicing Standard and with the consent of
the Directing Certificateholder, extend the maturity of any Mortgage Loan or
Loan Combination that is not, at the time of such extension, a Specially
Serviced Loan, in each case for up to two years, subject to a limit of a total
of four calendar years of extensions; provided that a default on a Balloon
Payment with respect to the subject Mortgage Loan or Loan Combination shall have
occurred.
Section 3.24 [Reserved].
Section 3.25 Limitations on and Authorizations of the Applicable
Servicer and Special Servicer with Respect to Certain Mortgage Loans. (a) Prior
to taking any action with respect to a Mortgage Loan or the Loan Combination
secured by Mortgaged Properties located in a "one-action" state, the Master
Servicer or Special Servicer, as applicable, shall consult with legal counsel,
the fees and expenses of which shall be an expense of the Trust Fund (and, in
the case of the Loan Combination, first of the related B Loan Noteholder, if
any, and second, to the extent such expense remains unpaid, from the Loan
Combination Collection Account from amounts allocable to the related Mortgage
Loan).
(b) The Master Servicer shall send written notice to each Borrower
and the related Manager and clearing bank relating to a Mortgage Loan that it is
servicing that, if applicable, it and/or the Trustee has been appointed as the
"Designee" of the "Lender" under any related Lock-Box Agreement.
(c) [Reserved.]
(d) The Master Servicer (together with its employees, officer and
directors) shall not utilize the proprietary and nonpublic information that it
becomes aware of in servicing the Mortgage Loans the Master Servicer to render
advice in connection with, solicit, or otherwise participate in the refinancing
of any Mortgage Loans or Loan Combination (whether at maturity or otherwise,
unless the Mortgage Loan Seller confirms in writing that it will not pursue the
refinancing of such Mortgaged Property). Neither the Master Servicer nor the
Special Servicer shall make its mortgage loan servicing system available to the
Master Servicer's or the Special Servicer's affiliates engaged in the commercial
mortgage origination business for the purpose of soliciting additional lending
business.
(e) Without limiting the obligations of the Master Servicer
hereunder with respect to the enforcement of a Borrower's obligations under the
related Loan Documents, the Master Servicer agrees that it shall enforce the
provisions of the Loan Documents relating to the Mortgage Loans that it is
servicing with respect to the collection of Prepayment Premiums and Yield
Maintenance Charges.
(f) In the event that a Rating Agency shall charge a fee in
connection with providing confirmation hereunder that a proposed action will not
result in the downgrade,
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withdrawal, or qualification of any rating assigned to any Class of
Certificates, the Master Servicer shall require the related Borrower to pay such
fee to the full extent permitted under the applicable Loan Documents. In the
event that such fee remains unpaid, such fee shall be an expense of the Trust
Fund (allocated as an Additional Trust Fund Expense in the same manner as
Realized Losses as set forth in Section 4.01(f)), the costs of which may be
advanced as a Property Advance.
(g) The Master Servicer shall, in accordance with the Servicing
Standard, enforce the right of the Trust to recover any amounts owed by the
[_____] B Loan Noteholder to the Trust Fund pursuant to this Agreement and the
related Co-Lender Agreement (but in the case of the B Loan, subject to Section
1.03). The cost of such enforcement on behalf of the Trust shall be paid and
reimbursable as a Property Advance.
(h) With respect to a Mortgage Loan or Loan Combination with a
Stated Principal Balance equal to or greater than $[20,000,000] to the extent
not inconsistent with the related Mortgage Loan or Loan Combination, the Master
Servicer shall not consent to a change of franchise affiliation with respect to
a Mortgaged Property unless the Master Servicer obtains written confirmation
from [Xxxxx'x] and [S&P] that such consent would not, in and of itself, result
in a downgrade, qualification or withdrawal of the then-current ratings assigned
to the Certificates.
Section 3.26 Certain Rights and Obligations of the Special Servicer.
(a) In addition to its rights and obligations with respect to Specially Serviced
Loans, the Special Servicer has the right to approve any modification, whether
or not the applicable Mortgage Loan is a Specially Serviced Loan, to the extent
described under Section 3.30 (and subject to Sections 3.31 or 3.34, as
applicable) and to approve any waivers of due-on-sale or due-on-encumbrance
clauses as described above under Section 3.09, whether or not the applicable
Mortgage Loan is a Specially Serviced Loan. With respect to non Specially
Serviced Loans, the Master Servicer shall notify the Special Servicer of any
request for approval (a "Request for Approval") received relating to the Special
Servicer's above-referenced approval rights and forward to the Special Servicer
its written recommendation, analysis and any other information or documents
reasonably requested by the Special Servicer (to the extent such information or
documents are in each the Master Servicer's possession). The Special Servicer
shall have [10] Business Days (from the date that the Special Servicer receives
the information it requested from the Master Servicer) to analyze and make a
recommendation with respect to a Request for Approval with respect to a non
Specially Serviced Loan and, immediately following such [10] Business Day
period, is required to notify the Controlling Class Representative of such
Request for Approval and its recommendation with respect thereto. Following such
notice, the Controlling Class Representative shall have [five] Business Days
from the date it receives the Special Servicer recommendation and any other
information it may reasonably request (or, with respect to the Loan Combination,
such longer time period as may be provided in the related Co-Lender Agreement)
to approve any recommendation of the Special Servicer relating to any Request
for Approval. In any event, if the Controlling Class Representative does not
respond to a Request for Approval within the required [5] Business Days, the
Special Servicer may deem its recommendation approved by the Controlling Class
Representative and if the Special Servicer does not respond to a Request for
Approval within the required [15] Business Days, the Master Servicer may deem
its recommendation approved by the Special Servicer. With respect to a
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Specially Serviced Loan, the Special Servicer must notify the Controlling Class
Representative of any Request for Approval received relating to the Controlling
Class Representative's above-referenced approval rights and its recommendation
with respect thereto. The Controlling Class Representative shall have [10]
Business Days (after receipt of all information reasonably requested) to approve
any recommendation of the Special Servicer relating to any such Request for
Approval. In any event, if the Controlling Class Representative does not respond
to any such Request for Approval within the required [10] Business Days, the
Special Servicer may deem its recommendation approved by the Controlling Class
Representative. Notwithstanding the foregoing, with respect to the Loan
Combination, the Directing Certificateholder shall be entitled to a comparable
Request for Approval, but the procedure and timing for approval by the Directing
Certificateholder of the related Request for Approval shall be governed by the
terms set forth in the related Intercreditor Agreement.
(b) Neither the Master Servicer nor the Special Servicer shall be
required to take or refrain from taking any action pursuant to instructions from
the Directing Certificateholder that would cause any one of them to violate
applicable law, this Agreement, including the Servicing Standard, or the REMIC
Provisions.
(c) The Master Servicer and the Special Servicer, as applicable,
shall discuss with the Controlling Class Representative, on a monthly basis, the
performance of any Mortgage Loan or Loan Combination that is a Specially
Serviced Loan, which is delinquent, has been placed on a "Watch List" or has
been identified by the Master Servicer or Special Servicer as exhibiting
deteriorating performance.
Section 3.27 Modification, Waiver, Amendment and Consents. (a)
Subject to Sections 3.31, 3.32 and 3.34, the Master Servicer or the Special
Servicer, as applicable, may agree to any modification, waiver or amendment of
any term of, forgive or defer interest on and principal of, capitalize interest
on, permit the release, addition or substitution of collateral securing any
Mortgage Loan, and/or permit the release of the Borrower on or any guarantor of
any Mortgage Loan and/or permit any change in the management company or
franchise with respect to any Mortgaged Property without the consent of the
Trustee, any Certificateholder (other than the Directing Certificateholder), to
the extent provided in Section 3.26, subject, however, to each of the following
limitations, conditions and restrictions:
(i) other than as provided in Sections 3.03 and 3.09 and except with
respect to any Penalty Charges that the Master Servicer or Special
Servicer, as applicable, may be entitled to as additional compensation
under this Agreement, neither the Master Servicer nor the Special Servicer
shall agree to any modification, waiver or amendment of any term of, or
take any of the other acts referenced in this Section 3.30(a) (and, with
respect to the Loan Combination, Sections 3.31, 3.32 or 3.34, as
applicable) with respect to, any Mortgage Loan or Loan Combination, as
applicable, that would affect the amount or timing of any related payment
of principal, interest or other amount payable thereunder or, in the
Master Servicer's or the Special Servicer's, as applicable, good faith and
reasonable judgment, in accordance with the Servicing Standard, materially
impair the security for such Mortgage Loan or Loan Combination, as
applicable, or reduce the likelihood of timely payment of amounts due
thereon or materially alter, substitute or increase the security for such
Mortgage Loan or Loan Combination, as applicable (other than the
alteration or construction of improvements thereon), or any guaranty or
other
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credit enhancement with respect thereto (other than the substitution of a
similar commercially available credit enhancement contract); provided,
however, that the Special Servicer may agree to any modification, waiver
or amendment of any term of, or take any of the other acts referenced in
this Section 3.30(a) (and, with respect to the Loan Combination, Section
3.31, 3.32 or 3.34, as applicable) with respect to a Specially Serviced
Loan that would have any such effect, but only if, in the Special
Servicer's reasonable and good faith judgment, in accordance with the
Servicing Standard, a material default on such Specially Serviced Loan has
occurred or a default in respect of payment on such Specially Serviced
Loan is reasonably foreseeable, and such modification, waiver, amendment
or other action is reasonably likely to produce a greater recovery to
Certificateholders (and, in the case of the Loan Combination, the [_____]
B Loan Noteholder), on a present value basis, than would liquidation. Any
such action taken by the Special Servicer shall be accompanied by an
Officers' Certificate to such effect and to which is attached the present
value calculation which establishes the basis for such determination, a
copy of which shall be delivered to the Trustee and to the Rating
Agencies;
(ii) the Special Servicer may not extend the Maturity Date of any
Specially Serviced Loan beyond the date that is date occurring later than
the earlier of (A) two years prior to the Rated Final Distribution Date
and (B) in the case of a Specially Serviced Loan secured by the related
Borrower's interest in a ground lease, the date that is 20 years prior to
the expiration date of such ground lease (or 10 years prior to the
expiration date of such lease with the consent of the Directing
Certificateholder if the Special Servicer gives due consideration to the
remaining term of such ground lease);
(iii) neither the Master Servicer nor the Special Servicer shall
make or permit any modification, waiver or amendment of any term of any
Mortgage Loan or Loan Combination that is not in default or with respect
to which default is not reasonably foreseeable that would (A) be a
"significant modification" of such Mortgage Loan or Loan Combination
within the meaning of Treasury Regulations Section 1.860G-2(b) or (B)
cause any Mortgage Loan or Loan Combination to cease to be a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (provided,
that neither the Master Servicer nor the Special Servicer shall be liable
for decisions made under this subsection which were made in good faith
and, unless it would constitute bad faith or negligence to do so, in
reliance on Opinions of Counsel who is Independent of the Master Servicer
or the Special Servicer, as applicable);
(iv) neither the Master Servicer nor the Special Servicer shall
permit any Borrower to add or substitute any collateral for an outstanding
Mortgage Loan or Loan Combination, which collateral constitutes real
property, unless (A) the Master Servicer or the Special Servicer, as
applicable, shall have first determined, in its reasonable and good faith
judgment, in accordance with the Servicing Standard, based upon a Phase I
environmental assessment (and such additional environmental testing as the
Master Servicer or the Special Servicer, as applicable, deems necessary
and appropriate) prepared by an Independent Person who regularly conducts
environmental assessments (and such additional environmental testing), at
the expense of the related Borrower, that such additional or substitute
collateral is in compliance with applicable environmental
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laws and regulations and that there are no circumstances or conditions
present with respect to such new collateral relating to the use,
management or disposal of any Hazardous Materials for which investigation,
testing, monitoring, containment, clean-up or remediation would be
required under any then-applicable environmental laws and/or regulations,
and (B) such addition and/or substitution would not result in the
downgrade, qualification or withdrawal of the rating then assigned by any
Rating Agency to any Class of Certificates (as confirmed in writing by
each Rating Agency at the expense of the related Borrower); and
(v) neither the Master Servicer nor the Special Servicer shall
release or substitute any collateral securing an outstanding Performing
Mortgage Loan except as provided in Section 3.10(i) and except in the case
of a release where (A) the use of the collateral to be released will not,
in the Master Servicer's or the Special Servicer's, as applicable, good
faith and reasonable judgment, materially and adversely affect the net
operating income being generated by or the use of the related Mortgaged
Property, (B) except in the case of the release of non-material parcels,
there is a corresponding principal paydown of such Mortgage Loan or Loan
Combination in an amount at least equal to, or a delivery of substitute
collateral with an appraised value at least equal to, the appraised value
of the collateral to be released, (C) the remaining Mortgaged Property and
any substitute collateral is, in the Master Servicer's or the Special
Servicer's, as applicable, good faith and reasonable judgment, adequate
security for the remaining Mortgage Loan or Loan Combination and (D) such
release and/or substitution would not result in the downgrade,
qualification or withdrawal of the rating then assigned by any Rating
Agency to any Class of Certificates (as confirmed in writing by each
Rating Agency);
provided that notwithstanding clauses (i) through (v) above, neither the Master
Servicer nor the Special Servicer shall be required to oppose the confirmation
of a plan in any bankruptcy or similar proceeding involving a Borrower if in its
reasonable and good faith judgment such opposition would not ultimately prevent
the confirmation of such plan or one substantially similar. Neither the Master
Servicer nor the Special Servicer shall extend the Maturity Date on any Mortgage
Loan except pursuant to Section 3.26(g) or this Section 3.30(a) and with respect
to the Loan Combination, Section 3.31, Section 3.32 or Section 3.34, as
applicable, or as otherwise required under the related Loan Documents.
(b) Neither the Master Servicer nor the Special Servicer shall have
any liability to the Trust Fund, the Certificateholders or, if applicable,
[_____] B Loan Noteholder or any other Person if its analysis and determination
that the modification, waiver, amendment or other action contemplated by Section
3.30(a) is reasonably likely to produce a greater recovery to Certificateholders
and, if applicable, [_____] B Loan Noteholder, on a present value basis than
would liquidation, should prove to be wrong or incorrect, so long as the
analysis and determination were made on a reasonable basis in good faith and in
accordance with the Servicing Standard by the Master Servicer or the Special
Servicer, as applicable, and the Master Servicer or the Special Servicer, as
applicable, was not negligent in ascertaining the pertinent facts.
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without
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limitation, calculating monthly distributions to Certificateholders or, if
applicable, [_____] B Loan Noteholder, be added to the unpaid principal balance
of the related Mortgage Loan or Loan Combination, notwithstanding that the terms
of such Mortgage Loan or Loan Combination or such modification, waiver or
amendment so permit.
(d) Except for waivers of penalty charges and notice periods, all
material modifications, waivers and amendments of the Mortgage Loans or the Loan
Combination entered into pursuant to this Section 3.30 (and, with respect to the
Loan Combination, Section 3.31, Section 3.32 or Section 3.34, as applicable)
shall be in writing.
(e) The Master Servicer or the Special Servicer, as applicable,
shall notify the Trustee in writing, of any modification, waiver, material
consent or amendment of any term of any Mortgage Loan or Loan Combination and
the date thereof, and shall deliver to the Custodian for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver, material consent or amendment, promptly (and in any event
within 10 Business Days) following the execution thereof.
(f) The Master Servicer or the Special Servicer may (subject to the
Servicing Standard), as a condition to granting any request by a Borrower for
consent, modification, waiver or indulgence or any other matter or thing, the
granting of which is within its discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan or Loan Combination
and is permitted by the terms of this Agreement and applicable law, require that
such Borrower pay to it (i) as additional servicing compensation, a reasonable
and customary fee for the additional services performed in connection with such
request (provided that the charging of such fee would not constitute a
"significant modification" of the related Mortgage Loan or Loan Combination,
within the meaning of Treasury Regulations Section 1.860G-2(b)), and (ii) any
related costs and expenses incurred by it. In no event shall the Master Servicer
or the Special Servicer be entitled to payment for such fees or expenses unless
such payment is collected from the related Borrower.
(g) The Directing Certificateholder shall have the rights set forth
in Sections 3.26 and 3.29 hereof with respect to any modification, waiver,
amendment or other action contemplated by Section 3.30(a) (and with respect to
the Loan Combination, the rights set forth in Section 3.31, Section 3.32 or
Section 3.34, as applicable). The Controlling Class Representative shall have no
duty to act in the interests of any Class other than the Controlling Class.
(h) Notwithstanding the foregoing, the Master Servicer shall not
permit the substitution of any Mortgaged Property pursuant to the defeasance
provisions of any Mortgage Loan (or any portion thereof) or Loan Combination, if
any, unless such defeasance complies with Treasury Regulations Section
1.860G-2(a)(8) and satisfies the conditions set forth in Section 3.09(f).
(i) Notwithstanding anything herein or in the related Loan Documents
to the contrary, the Master Servicer may permit the substitution of direct,
non-callable "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
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thereof) or Loan Combination in lieu of the defeasance collateral specified in
the related Loan Documents or, if applicable, the Loan Combination; provided
that, the Master Servicer reasonably determines that allowing their use would
not cause a default or event of default under the related Loan Documents to
become reasonably foreseeable and the Master Servicer receives an Opinion of
Counsel (at the expense of the Borrower to the extent permitted under the Loan
Documents) to the effect that such use would not be and would not constitute a
"significant modification" of such Mortgage Loan or Loan Combination pursuant to
Treasury Regulations Section 1.860G-2(b) and would not otherwise endanger the
status of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC or result in the imposition of a tax upon the Loan REMIC, the Lower-Tier
REMIC, 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") and
provided, further, that the requirements set forth in Section 3.09(f) are
satisfied.
(j) If required under the related Loan Documents or if otherwise
consistent with the Servicing Standard, the Master Servicer shall establish and
maintain one or more accounts (the "Defeasance Accounts"), into which all
payments received by the Master 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 Loan Documents.
Each Defeasance Account shall at all times be an Eligible Account.
Notwithstanding the foregoing, in no event shall the Master Servicer permit such
amounts (other than a nominal amount) to be maintained in the Defeasance Account
for a period in excess of 120 days, unless such amounts are reinvested by the
Master 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 Master Servicer
shall deposit all payments received by it from defeasance collateral substituted
for any Mortgaged Property into its Collection Account or, if the Loan
Combination is involved, the Loan Combination Collection Account and treat any
such payments as payments made on the Mortgage Loan or Loan Combination, as
applicable, in advance of its Due Date in accordance with clause (a) of the
definition of Principal Distribution Amount, and not as a prepayment of the
related Mortgage Loan or the [_____] B Loan. Notwithstanding anything herein to
the contrary, in no event shall the Master Servicer permit such amounts to be
maintained in its Collection Account or, if the Loan Combination is involved,
the Loan Combination Collection Account for a period in excess of 365 days.
(k) In the event the Master Servicer or Special Servicer determines
that a refusal to consent by the Directing Certificateholder or any advice from
the Directing Certificateholder would cause the Master Servicer or Special
Servicer, as applicable, to violate applicable law, the terms of the applicable
Loan Documents, the REMIC Provisions or the terms of this Agreement, including
without limitation, the Servicing Standard, the Master Servicer or 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.
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(l) Any modification, waiver or amendment of or consents or
approvals relating to a Mortgage Loan or Loan Combination that is a Specially
Serviced Loan or REO Loan shall be performed by the Special Servicer and not the
Master Servicer, and to the extent provided in this Agreement and/or the
applicable Co-Lender Agreement, shall be subject to the consent of the Directing
Certificateholder or the Controlling Class Representative, as applicable.
Section 3.28 Rights of Holders of the Each Loan Combination. (a) The
Master Servicer and Special Servicer acknowledge and agree that each Loan
Combination is subject to the terms and provisions of the related Co-Lender
Agreement and each agrees to service each Loan Combination in accordance with
the terms of the related Co-Lender Agreement and this Agreement, including,
without limitation, effecting distributions and allocating reimbursement of
expenses in accordance with the Co-Lender Agreement and performing the
obligations of the "Note A Holder" thereunder. Notwithstanding anything to the
contrary in this Agreement, the Master Servicer and Special Servicer agree not
to take any action with respect to each Loan Combination or the related
Mortgaged Property without the prior consent of the related B Loan Noteholder to
the extent that the Co-Lender Agreement provides that such B Loan Noteholder is
entitled or required to consent to such action, to the extent any such action or
inaction does not cause a violation of the related Mortgage Loan Documents,
applicable law or the Servicing Standard, and to deliver such reports and
summaries as required by the related Co-Lender Agreement. Each of the Master
Servicer and Special Servicer acknowledges and agrees that each B Loan
Noteholder has the right to cure certain defaults with respect to the related
Mortgage Loan and to purchase the [____] Mortgage Loan in each case pursuant to
the terms and conditions of the related Co-Lender Agreement.
(b) Subject to the [________] Mortgage Loan Documents,
notwithstanding anything to the contrary contained herein (but subject to this
Section 3.28(b)), (i) the Special Servicer shall be required to consult with the
Directing Certificateholder upon the occurrence of any [________] Event of
Default, to consider alternative actions recommended by the Directing
Certificateholder and to consult with the Directing Certificateholder with
respect to determinations made pursuant to Section 3.10 or Section 3.18 and (ii)
at any time (whether or not a [________] Event of Default has occurred) the
Master Servicer and the Special Servicer shall be required to (A) consult with
the Directing Certificateholder (1) with respect to proposals to take any
significant action with respect to the [________] Loan Combination and the
related Mortgaged Property and to consider alternative actions recommended by
the Directing Certificateholder and (2) to the extent that the related
[________] Loan Combination documents grant the lender the right to approve
budgets for the related Mortgaged Property, prior to approving any such budget
and (B) prior to taking any of the actions set forth in Section [ ] of the
Co-Lender Agreement, to notify in writing the Directing Certificateholder of any
proposal to take any of such actions (and to provide such Directing
Certificateholder with such non-proprietary information reasonably requested by
such Directing Certificateholder as may be necessary in the reasonable
determination of such Directing Certificateholder in order make a judgment, the
expense of providing such information to be an expense of the requesting party)
and to receive the prior written approval of such Directing Certificateholder
(which approval may be withheld in its sole discretion) with respect to the
actions set forth in Section [ ] of the Co-Lender Agreement.
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provided, if the Directing Certificateholder fails to notify the Special
Servicer or the Master Servicer, as applicable, of its approval or disapproval
of any such proposed action requiring its consent within ten Business Days of
delivery to the Directing Certificateholder by the Special Servicer or the
Master Servicer, as applicable, of written notice of such a proposed action,
together with the information reasonably requested by the Directing
Certificateholder pursuant to this Section 3.28 (b), such action by the Special
Servicer or Servicer, as applicable, shall be deemed to have been approved by
the Directing Certificateholder pursuant to the Co-Lender Agreement and this
Section 3.28(b).
In connection with any action or determination or proposed action or
determination by the Special Servicer referred to in this Section 3.28(b), the
Special Servicer shall prepare a summary of such proposed action or
determination and an analysis of whether or not such action is reasonably likely
to produce a greater recovery on a present value basis than not taking such
action or making such determination and shall provide to the Directing
Certificateholder such summary and such information as is in its possession or
control and is reasonably requested by the Directing Certificateholder as may be
necessary in the reasonable judgment of the Directing Certificateholder in order
make a determination with respect to each of the matters contained in this
Section 3.28(b) and in Section [ ] of the Co-Lender Agreement.
The Master Servicer shall provide to the Directing Certificateholder
by hard copy or by electronic means concurrently with the delivery thereof to
the related mortgagor, copies of any notice of a [________] Event of Default and
any other material notices sent to such mortgagor or with respect to foreclosure
or other exercise of remedies or enforcement, modification or waiver with
respect to the [________] Loan Combination or the related Mortgaged Property.
The Master Servicer and the Special Servicer shall also provide to
the Directing Certificateholder by hard copy or electronic means which may be
satisfied by making such information available on the Master Servicer's internet
website or by other means agreed to by the Directing Certificateholder and the
Master Servicer or the Special Servicer (A) within [five] Business Days of
receipt thereof, copies of any financial statements, certificates, material
correspondence, notices, bills or reports with respect to the related mortgagor
or Mortgaged Property that were delivered pursuant to, or to which the mortgagee
or lender would be entitled to under, the terms of the related loan documents
and copies of any appraisals obtained, (B) within [ten] Business Days following
the receipt thereof by the Master Servicer or the Special Servicer monthly
operating statements and rent rolls for the related Mortgaged Property and (C)
within [ten] Business Days following the receipt thereof by the Master Servicer
or the Special Servicer annual operating statements and rent rolls for the
related Mortgaged Property.
The expense of providing information and summaries pursuant to this
Section 3.28 shall be an expense of the Directing Certificateholder and shall
not be an expense of the Trust Fund.
Section 3.29 Certain Intercreditor Matters Relating to the Loan
Combinations. (a) With respect to the Loan Combination, except for those duties
to be performed by, and notices to be furnished by, the Trustee under this
Agreement, the Master Servicer or the Special Servicer, as applicable, shall
perform such duties and furnish such notices, reports and
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information on behalf of the Trust Fund as may be the obligation of the Trust
under the related Co-Lender Agreement.
(b) The Master Servicer shall maintain a register (the "[_____] B
Loan Noteholder Register") on which the Master Servicer shall record the name
and address of the [_____] B Loan Noteholder and wire transfer instructions for
such [_____] B Loan Noteholder from time to time, to the extent such information
is provided in writing to the Master Servicer by the [_____] B Loan Noteholder.
The [_____] B Loan Noteholder has agreed to inform the Master Servicer of its
name, address, taxpayer identification number and wiring instructions (to the
extent the foregoing information is not already contained in the related
Co-Lender Agreement) and of any transfer thereof (together with any instruments
of transfer).
In no event shall the Master Servicer be obligated to pay any party
the amounts payable to the [_____] B Loan Noteholder hereunder other than the
Person listed as the applicable [_____] B Loan Noteholder on the [_____] B Loan
Noteholder Register. In the event that the [_____] B Loan Noteholder transfers
the related [_____] B Loan without notice to the Master Servicer, the Master
Servicer shall have no liability whatsoever for any misdirected payment on such
[_____] B Loan and shall have no obligation to recover and redirect such
payment.
The Master Servicer shall promptly provide the names and addresses
of the [_____] B Loan Noteholder to any party hereto or any successor thereto
upon written request, and any such party or successor may, without further
investigation, conclusively rely upon such information. The Master Servicer
shall have no liability to any Person for the provision of any such names and
addresses.
(c) The Directing Certificateholder shall not owe any fiduciary duty
to the Trustee, the Master Servicer, any Special Servicer, any Certificateholder
(including the Controlling Class Representative, if applicable) or any
noteholder of the Loan Combination, as applicable. The Directing
Certificateholder will not have any liability to the Certificateholders
(including the Controlling Class Representative, if applicable) or any other
noteholder of the Loan Combination, as applicable, for any action taken, or for
refraining from the taking of any action or the giving of any consent, pursuant
to this Agreement, or for errors in judgment. By its acceptance of a
Certificate, each Certificateholder will be deemed to have confirmed its
understanding that the Directing Certificateholder may take or refrain from
taking actions that favor the interests of the Directing Certificateholder over
the Certificateholders or such other noteholder of the Loan Combination, as
applicable, and that such Directing Certificateholder may have special
relationships and interests that conflict with the interests of the
Certificateholders or such other noteholder of the Loan Combination, as
applicable, and will be deemed to have agreed to take no action against such
Directing Certificateholder or any of its officers, directors, employees,
principals or agents as a result of such a special relationship or conflict, and
that such Directing Certificateholder shall not be liable by reason of its
having acted or refrained from acting solely in the interests of the Directing
Certificateholder.
(d) With respect to the Loan Combination, the Directing
Certificateholder shall be entitled to exercise the consent rights, cure rights
and purchase rights, as applicable, to the extent set forth in the applicable
Co-Lender Agreement, in accordance with the terms of the related Co-Lender
Agreement and this Agreement.
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ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) (i) The initial Lower-Tier Principal
Balances as of any date subsequent to the first Distribution Date, and the
Pass-Through Rate on each Class of Lower-Tier Regular Interests shall be as set
forth in the Preliminary Statement and the definition of "Pass-Through Rate."
(ii) On each Distribution Date, amounts held in the Lower-Tier
Distribution Account shall be withdrawn (to the extent of the Available
Funds, including or reduced by, to the extent required by Section 3.05(f),
the Withheld Amounts, plus any amount withdrawn from the Excess
Liquidation Proceeds Account pursuant to Section 3.05(j)) in the case of
all Classes of Lower-Tier Regular Interests (such amount, the "Lower-Tier
Distribution Amount"). Each Class of Lower-Tier Regular Interests shall be
deemed to have received distributions in respect of principal in an amount
equal to the amount of principal actually distributable to its respective
Corresponding Certificates as provided in Section 4.01(b), and as set
forth below with respect to Corresponding Certificates having more than
one Class of Corresponding Lower-Tier Regular Interests. As of any date,
the principal balance of each Lower-Tier Regular Interest shall equal the
Lower-Tier Principal Balance thereof. On each Distribution Date,
distributions made in respect of any Class of Regular Certificates on each
Distribution Date pursuant to Section 4.01(b) or Section 9.01 shall be
deemed to have first been distributed from the Lower-Tier REMIC to the
Upper-Tier REMIC in respect of its Corresponding Lower-Tier Regular
Interest or Interests set forth in the Preliminary Statement hereto;
provided, that the Interest Accrual Amount and Class Interest Shortfalls
in respect of a Class of Regular Certificates shall be deemed to have been
distributed pro rata among two or more Corresponding Lower-Tier Regular
Interests that correspond to a Class of Regular Certificates; provided,
further, that each Lower-Tier Regular Interest shall be deemed to have
received distributions in respect of interest in an amount equal to the
Interest Accrual Amount and Class Interest Shortfalls in respect of the
[Class X-C] Strip Rate or [Class X-P] Strip Rate of its Corresponding
Component, in each case to the extent actually distributable thereon as
provided in Section 4.01(b); and provided, further, that distributions of
principal:
(1) with respect to the [Class A-1] Certificates, shall
be deemed to have first been distributed from the Lower-Tier
REMIC to the Upper-Tier REMIC in respect of the [Class A-1L-1]
Interest; second, to the [Class A-1L-2] Interest; third, to
the [Class A-1L-3] Interest; and fourth, to the [Class A-1L-4]
Interest, in each case until their respective Lower-Tier
Principal Balances are reduced to zero;
(2) with respect to the [Class A-2] Certificates, shall
be deemed to have first been distributed from the Lower-Tier
REMIC to the Upper-Tier REMIC in respect of the [Class A-2L-1]
Interest; second, to the [Class A-2L-2] Interest; third, to
the [Class A-2L-3] Interest; fourth, to the [Class A-2L-4]
Interest; fifth, to the [Class A-2L-5] Interest; and sixth, to
the [Class A-2L-6] Interest, in each case until their
respective Lower-Tier Principal Balances are reduced to zero;
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(3) with respect to the [Class A-AB] Certificates, shall
be deemed to have first been distributed from the Lower-Tier
REMIC to the Upper-Tier REMIC in respect of the [Class
A-ABL-1] Interest; and second, to the [Class A-ABL-2]
Interest, in each case until their respective Lower-Tier
Principal Balances are reduced to zero;
(4) with respect to the [Class A-5A] Certificates, shall
be deemed to have first been distributed from the Lower-Tier
REMIC to the Upper-Tier REMIC in respect of the [Class
A-5AL-1] Interest; second, to the [Class A-5A]-2 Interest;
third, to the [Class A-5AL-3] Interest; fourth, to the [Class
A-5AL-4] Interest; fifth, to the [Class A-5AL-5] Interest; and
sixth, to the [Class A-5AL-6] Interest, in each case until
their respective Lower-Tier Principal Balances are reduced to
zero;
(5) with respect to the [Class A-1A] Certificates, shall
be deemed to have first been distributed from the Lower-Tier
REMIC to the Upper-Tier REMIC in respect of the [Class
A-1AL-1] Interest; second, to the [Class A-1A]-2 Interest;
third, to the [Class A-1AL-3] Interest; fourth, to the [Class
A-1AL-4] Interest; fifth, to the [Class A-1AL-5] Interest;
sixth, to the [Class A-1AL-6] Interest; seventh, to the [Class
A-1AL-7] Interest; eighth, to the [Class A-1AL-8] Interest;
ninth, to the [Class A-1AL-9] Interest; tenth, to the [Class
A-1AL-10] Interest; eleventh, to the [Class A-1AL-11]
Interest; twelfth, to the [Class A-1AL-12] Interest;
thirteenth, to the [Class A-1AL-13] Interest; fourteenth, to
the [Class A-1AL-14] Interest; and fifteenth, to the [Class
A-1AL-15] Interest, in each case until their respective
Lower-Tier Principal Balances are reduced to zero;
(6) with respect to the [Class D] Certificates, shall be
deemed to have first been distributed from the Lower-Tier
REMIC to the Upper-Tier REMIC in respect of the [Class D-L-1]
Interest; and second, to the [Class D-L-2] Interest, in each
case until their respective Lower-Tier Principal Balances are
reduced to zero;
(7) with respect to the [Class E] Certificates, shall be
deemed to have first been distributed from the Lower-Tier
REMIC to the Upper-Tier REMIC in respect of the [Class E-L-1]
Interest; second, to the [Class E-L-2] Interest; third, to the
[Class E-L-3] Interest; and fourth, to the [Class E-L-4], in
each case until their respective Lower-Tier Principal Balances
are reduced to zero;
(8) with respect to the [Class F] Certificates, shall be
deemed to have first been distributed from the Lower-Tier
REMIC to the Upper-Tier REMIC in respect of the [Class F-L-1]
Interest; and second, to the [Class F-L-2] Interest, in each
case until their respective Lower-Tier Principal Balances are
reduced to zero;
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(9) with respect to the [Class G] Certificates, shall be
deemed to have first been distributed from the Lower-Tier
REMIC to the Upper-Tier REMIC in respect of the [Class G-L-1]
Interest; second, to the [Class G-L-2] Interest; and third, to
the [Class G-L-3] Interest, in each case until their
respective Lower-Tier Principal Balances are reduced to zero;
(10) with respect to the [Class H] Certificates, shall
be deemed to have first been distributed from the Lower-Tier
REMIC to the Upper-Tier REMIC in respect of the [Class H-L-1]
Interest; and second, to the [Class H-L-2] Interest, in each
case until their respective Lower-Tier Principal Balances are
reduced to zero;
(11) with respect to the [Class J] Certificates, shall
be deemed to have first been distributed from the Lower-Tier
REMIC to the Upper-Tier REMIC in respect of the [Class X-X-1]
Interest; and second, to the [Class X-X-2] Interest, in each
case until their respective Lower-Tier Principal Balances are
reduced to zero; and
(12) with respect to the [Class K] Certificates, shall
be deemed to have first been distributed from the Lower-Tier
REMIC to the Upper-Tier REMIC in respect of the [Class K-L-1]
Interest; and second, to the [Class K-L-2] Interest, in each
case until their respective Lower-Tier Principal Balances are
reduced to zero.
All distributions of reimbursements of Realized Losses and
Additional Trust Fund Expenses made in respect of any Class of Principal Balance
Certificates on each Distribution Date pursuant to Section 4.01(b) shall be
deemed to have first been distributed from the Lower-Tier REMIC to the
Upper-Tier REMIC in respect of its Corresponding Lower-Tier Regular Interest(s)
set forth in the Preliminary Statement hereto; provided, however, that
distributions of reimbursements of Realized Losses and Additional Trust Fund
Expenses shall be made in sequential order of the priority set forth in this
Section 4.01(a)(ii) for principal distributions, up to the amount of Realized
Losses and Additional Trust Fund Expenses previously allocated to a particular
Component of such Class of Certificates.
On each Distribution Date, the Trustee shall apply amounts related
to each Prepayment Premium and Yield Maintenance Charge then on deposit in the
Lower-Tier Distribution Account and received during or prior to the related
Collection Period to the Lower-Tier Regular Interests in proportion to the
amount of principal distributed to each Class of Lower-Tier Regular Interests on
such Distribution Date pursuant to this Section 4.01(a)(ii).
The Trustee shall be deemed to deposit the Lower-Tier Distribution
Amount and the amount of any Prepayment Premiums and any Yield Maintenance
Charges distributed to the Upper-Tier REMIC pursuant to this Section 4.01(a)(ii)
into the Upper-Tier Distribution Account. Any amount in respect of the Mortgage
Pool that remains in the Lower-Tier Distribution Account on each Distribution
Date after distribution of the Lower-Tier Distribution Amount and distribution
of Prepayment Premiums and Yield Maintenance Charges in respect of the Mortgage
Pool shall be distributed to the Holders of the [Class LR] Certificates (but
only to the extent of
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such amount for such Distribution Date remaining in the Lower-Tier Distribution
Account, if any).
(b) On each Distribution Date occurring prior to the Crossover Date,
the Trustee shall withdraw from the Upper-Tier Distribution Account the amounts
deposited in the Upper-Tier Distribution Account in respect of such Distribution
Date pursuant to Section 4.01(a)(ii), and distribute such amount to
Certificateholders in the amounts and in the order of priority set forth below:
(i) First, to pay interest, pro rata, (i) on the [Class A-1], [Class
A-2], [Class A-3], [Class A-4], [Class A-AB] and [Class A-5] Certificates
from the portion of the Available Funds for such Distribution Date
attributable to Mortgage Loans in Loan Group 1 up to an amount equal to
the aggregate Interest Accrual Amount for those Classes, in each case in
accordance with their respective interest entitlements, provided that
interest distributed to the [Class A-5] Certificates will be applied first
to the [Class A-5A] Certificates up to their interest entitlement and then
to the [Class A-5B] Certificates up to their interest entitlement; (ii) on
the [Class A-1A] Certificates from the portion of the Available Funds for
such Distribution Date attributable to Mortgage Loans in Loan Group 2 up
to an amount equal to the aggregate Interest Accrual Amount for such
Class; and (iii) on the [Class X-C] and [Class X-P] Certificates from the
Available Funds for such Distribution Date up to an amount equal to the
Interest Accrual Amount for such Class; provided, however, if on any
Distribution Date, the Available Funds (or applicable portion thereof) are
insufficient to pay in full the total Interest Accrual Amount to be paid
to any of the Classes described in this subclause (i), the Available Funds
for such Distribution Date will be allocated among all those Classes pro
rata, in accordance with their respective interest entitlements;
(ii) Second, pro rata, to the [Class A-1], [Class A-2], [Class A-3],
[Class A-4], [Class A-AB], [Class A-5], [Class A-1A], [Class X-C] and
[Class X-P] Certificates, in respect of interest, up to an amount equal to
the aggregate unpaid Class Interest Shortfalls previously allocated to
such Classes, provided that interest distributed to the [Class A-5]
Certificates will be applied first to the [Class A-5A] Certificates up to
their interest entitlement and then to the [Class A-5B] Certificates up to
their interest entitlement,
(iii) Third, in reduction of the Certificate Balances thereof,
(A) to the [Class A-1], [Class A-2], [Class A-3], [Class A-4],
[Class A-AB], [Class A-5A], [Class A-5B] Certificates,
(1) to the [Class A-AB] Certificates, in an amount up to
the Group 1 Principal Distribution and, after the outstanding
Certificate Balance of the [Class A-1A] Certificates has been
reduced to zero, the Group 2 Principal Distribution Amount
remaining after payments to the [Class A-1A] Certificates have
been made on such Distribution Date, until the outstanding
Certificate Balance of the [Class A-AB] Certificates is
reduced to the [Class A-AB] Planned Principal Balance,
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(2) to the [Class A-1] Certificates, in an amount equal
to the Group 1 Principal Distribution Amount (or the portion
of it remaining after distributions on the [Class A-AB]
Certificates pursuant to (1) above in this clause Third) for
such Distribution Date and, after the [Class A-1A]
Certificates have been reduced to zero, the Group 2 Principal
Distribution Amount remaining after payments to the [Class
A-1A] and payments to the [Class A-AB] Certificates pursuant
to (1) above in this clause Third have been made on such
Distribution Date, until the [Class A-1] Certificates are
reduced to zero,
(3) to the [Class A-2] Certificates, in an amount equal
to the Group 1 Principal Distribution Amount (or the portion
thereof remaining after distributions to the [Class A-1]
Certificates and distributions on the [Class A-1]
Certificates) for such Distribution Date and, after the [Class
A-AB] Certificates pursuant to (1) above in this clause Third)
for such Distribution Date and, after the [Class A-1A]
Certificates have been reduced to zero, the Group 2 Principal
Distribution Amount remaining after payments to the [Class
A-1A] and [Class A-1] Certificates and payments to the [Class
A-AB] Certificates pursuant to (1) above in this clause Third
have been made on such Distribution Date, until the [Class
A-2] Certificates are reduced to zero,
(4) to the [Class A-3] Certificates, in an amount equal
to the Group 1 Principal Distribution Amount (or the portion
of it remaining after distributions on the [Class A-1] and
[Class A-2] Certificates and distributions on the [Class A-AB]
Certificates pursuant to (1) above in this clause Third) for
such Distribution Date and, after the [Class A-1A]
Certificates have been reduced to zero, the Group 2 Principal
Distribution Amount remaining after payments to the [Class
A-1A], [Class A-1] and [Class A-2] Certificates and payments
to the [Class A-AB] Certificates pursuant to (1) above in this
clause Third have been made on such Distribution Date, until
the [Class A-3] Certificates have been reduced to zero,
(5) to the [Class A-4] Certificates, in an amount equal
to the Group 1 Principal Distribution Amount (or the portion
of it remaining after distributions to the [Class A-1], [Class
A-2] and [Class A-3] Certificates and distributions on the
[Class A-AB] Certificates pursuant to (1) above in this clause
Third) for such Distribution Date and, after the [Class A-1A]
Certificates have been reduced to zero, the Group 2 Principal
Distribution Amount remaining after payments to the [Class
A-1A], [Class A-1], [Class A-2] and [Class A-3] Certificates
and payments to the [Class A-AB] Certificates pursuant to (1)
above in this clause Third have been made on such Distribution
Date, until the [Class A-4] Certificates have been reduced to
zero,
(6) to the [Class A-AB] Certificates, in an amount equal
to the Group 1 Principal Distribution Amount (or the portion
of it remaining after distributions on the [Class A-1], [Class
A-2], [Class A-3] and [Class A-4] Certificates) for such
Distribution Date and, after the [Class A-1A] Certificates
have been reduced to zero, the Group 2 Principal Distribution
Amount remaining after payments to the [Class A-1A], [Class
A-1], [Class A-2], [Class A-3] and [Class A-4] Certificates
have been made on such Distribution Date, until the [Class
A-AB] Certificates have been reduced to zero,
(7) to the [Class A-5A] Certificates, in an amount equal
to the Group 1 Principal Distribution Amount (or the portion
of it remaining
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after distributions on the [Class A-1], [Class A-2], [Class
A-3], [Class A-4] and [Class A-AB] Certificates) for such
Distribution Date and, after the [Class A-1A] Certificates
have been reduced to zero, the Group 2 Principal Distribution
Amount remaining after payments to the [Class A-1A], [Class
A-1], [Class A-2], [Class A-3], [Class A-4] and [Class A-AB]
Certificates have been made on such Distribution Date, until
the [Class A-5A] Certificates have been reduced to zero,
(8) to the [Class A-5B] Certificates, in an amount equal
to the Group 1 Principal Distribution Amount (or the portion
of it remaining after distributions on the [Class A-1], [Class
A-2], [Class A-3], [Class A-4], [Class A-AB] and [Class A-5A]
Certificates) for such Distribution Date and, after the [Class
A-1A] Certificates have been reduced to zero, the Group 2
Principal Distribution Amount remaining after payments to the
[Class A-1A], [Class A-1], [Class A-2], [Class A-3], [Class
A-4], [Class A-AB] and [Class A-5A] Certificates have been
made on such Distribution Date, until the A-5B Certificates
have been reduced to zero, and
(B) to the [Class A-1A] Certificates, in an amount equal to
the Group 2 Principal Distribution Amount for such Distribution Date
and, after the [Class A-5B] Certificates have been reduced to zero,
the Group 1 Principal Distribution Amount remaining after payments
to the [Class A-1], [Class A-2], [Class A-3], [Class A-4] [Class
A-AB], [Class A-5A], [Class A-5B] Certificates have been made on
such Distribution Date, until the [Class A-1A] Certificates are
reduced to zero;
(iv) Fourth, to the [Class A-1], [Class A-2], [Class A-3], [Class
A-4], [Class A-AB], [Class A-5] and [Class A-1A] Certificates, pro rata,
to the extent not distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously allocated to
such Class, provided that such amounts in respect of the [Class A-5]
Certificates will be distributed first to the [Class A-5A] Certificates
until such unreimbursed losses are reimbursed together with all applicable
interest at the applicable Pass-Through Rate and then to the [Class A-5B]
Certificates;
(v) Fifth, to the [Class A-J] Certificates in respect of interest,
up to an amount equal to the aggregate Interest Accrual Amount of such
Class;
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(vi) Sixth, to the [Class A-J] Certificates in respect of interest,
up to an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class;
(vii) Seventh, to the [Class A-J] Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(viii) Eighth, to the [Class A-J] Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(ix) Ninth, to the [Class B] Certificates in respect of interest, up
to an amount equal to the aggregate Interest Accrual Amount of such Class;
(x) Tenth, to the [Class B] Certificates in respect of interest, up
to an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class;
(xi) Eleventh, to the [Class B] Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(xii) Twelfth, to the [Class B] Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xiii) Thirteenth, to the [Class C] Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xiv) Fourteenth, to the [Class C] Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xv) Fifteenth, to the [Class C] Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less the amount of the Principal Distribution Amount distributed
pursuant to all prior clauses, until the Certificate Balance of such Class
is reduced to zero;
(xvi) Sixteenth, to the [Class C] Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, up to an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xvii) Seventeenth, to the [Class D] Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
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(xviii) Eighteenth, to the [Class D] Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xix) Nineteenth, to the [Class D] Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(xx) Twentieth, to the [Class D] Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xxi) Twenty-first, to the [Class E] Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxii) Twenty-second, to the [Class E] Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxiii) Twenty-third, to the [Class E] Certificates in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the amount of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxiv) Twenty-fourth, to the [Class E] Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xxv) Twenty-fifth, to the [Class F] Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxvi) Twenty-sixth, to the [Class F] Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxvii) Twenty-seventh, to the [Class F] Certificates in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less the amount of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxviii) Twenty-eighth, to the [Class F] Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
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(xxix) Twenty-ninth, to the [Class G] Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxx) Thirtieth, to the [Class G] Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxxi) Thirty-first, to the [Class G] Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxxii) Thirty-second, to the [Class G] Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xxxiii) Thirty-third, to the [Class H] Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxxiv) Thirty-fourth, to the [Class H] Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxxv) Thirty-fifth, to the [Class H] Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxxvi) Thirty-sixth, to the [Class H] Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xxxvii) Thirty-seventh, to the [Class J] Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxxviii) Thirty-eighth, to the [Class J] Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxxix) Thirty-ninth, to the [Class J] Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xl) Fortieth, to the [Class J] Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount
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equal to the aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xli) Forty-first, to the [Class K] Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xlii) Forty-second, to the [Class K] Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xliii) Forty-third, to the [Class K] Certificates in reduction of
the Certificate Balances thereof, an amount equal to the Principal
Distribution Amount less amounts of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xliv) Forty-fourth, to the [Class K] Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xlv) Forty-fifth, to the [Class L] Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xlvi) Forty-sixth, to the [Class L] Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xlvii) Forty-seventh, to the [Class L] Certificates in reduction of
the Certificate Balances thereof, an amount equal to the Principal
Distribution Amount less amounts of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xlviii) Forty-eighth, to the [Class L] Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xlix) Forty-ninth, to the [Class M] Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(l) Fiftieth, to the [Class M] Certificates in respect of interest,
up to an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class;
(li) Fifty-first, to the [Class M] Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
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(lii) Fifty-second, to the [Class M] Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(liii) Fifty-third, to the [Class N] Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(liv) Fifty-fourth, to the [Class N] Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(lv) Fifty-fifth, to the [Class N] Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(lvi) Fifty-sixth, to the [Class N] Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(lvii) Fifty-seventh, to the [Class O] Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(lviii) Fifty-eighth, to the [Class O] Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(lix) Fifty-ninth, to the [Class O] Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(lx) Sixtieth, to the [Class O] Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(lxi) Sixty-first, to the [Class P] Certificates, in respect of
interest, up to an amount equal to the Interest Accrual Amount of such
Class;
(lxii) Sixty-second, to the [Class P] Certificates, in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(lxiii) Sixty-third, to the [Class P] Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of
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Principal Distribution Amount distributed pursuant to all prior clauses
until the Certificate Balance of such Class is reduced to zero;
(lxiv) Sixty-fourth, to the [Class P] Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class; and
(lxv) Sixty-fifth, to the [Class R] and [Class LR] Certificates.
All references to "pro rata" in the preceding clauses with respect
to interest and Class Interest Shortfalls shall mean pro rata based on the
amount distributable pursuant to such clauses, with respect to distribution of
principal other than for unreimbursed Realized Losses shall mean pro rata based
on Certificate Balance and with respect to distributions with respect to
unreimbursed Realized Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the Crossover Date, the Principal Distribution Amount will be
distributed to the [Class A-1], [Class A-2], [Class A-3], [Class A-4], [Class
A-AB], [Class 5] and [Class A-1A] Certificates, pro rata, based on their
respective Certificate Balances, in reduction of their respective Certificate
Balances, until the Certificate Balance of each such Class is reduced to zero,
provided that the Principal Distribution Amounts distributed to the [Class A-5]
Certificates will be applied first to the [Class A-5A] Certificates until the
aggregate Certificate Balance of such Class is reduced to zero and then to the
[Class A-5B] Certificates until the aggregate Certificate Balance of such Class
is reduced to zero, and any unreimbursed amounts of Realized Losses previously
allocated to such Classes, if available, will be distributed pro rata based on
the amount of unreimbursed Realized Losses previously allocated to such Classes,
provided that such amounts with respect to the [Class A-5] Certificates will be
distributed first to the [Class A-5A] Certificates until such unreimbursed
losses are reimbursed, together with interest at the applicable Pass-Through
Rate, and then to the [Class A-5B] Certificates.
(c) On each Distribution Date, following the distribution from the
Lower-Tier Distribution Account in respect of the Lower-Tier Regular Interests
pursuant to Section 4.01(a)(ii), the Trustee shall make distributions of any
Prepayment Premiums and Yield Maintenance Charges received in the related
Collection Period from amounts deposited in the Upper-Tier Distribution Account
pursuant to Section 3.05(g), as follows:
(i) Prepayment Premiums, Yield Maintenance Charges received with
respect to Group 1 Mortgage Loans shall be distributed to the [Class A-1],
[Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-J], [Class B], [Class C], [Class D], [Class E], [Class F],
[Class G] and [Class H] Certificates (other than the [Class A-1A]
Certificates), in an amount equal to the product of (a) a fraction, not
greater than one, the numerator of which 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], [Class
A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B],
[Class A-J], [Class B], [Class C], [Class D], [Class E], [Class F], [Class
G] and [Class H] Certificates on such Distribution Date,
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(b) the Base Interest Fraction for the related Principal Prepayment and
such Class of Certificates and (c) the aggregate amount of Prepayment
Premiums or Yield Maintenance Charges, as applicable, collected on such
Principal Prepayment during the related Due Period. Any Yield Maintenance
Charges or Prepayment Premiums collected during the related Collection
Period remaining after such distributions will be distributed to the
holders of the [Class X-C] Certificates. No Prepayment Premiums or Yield
Maintenance Charges in respect of the Group 1 Mortgage Loans will be
distributed to holders of any other Class of Certificates; and
(ii) Prepayment Premiums and Yield Maintenance Charges received with
respect to the Group 2 Mortgage Loans shall be distributed to the [Class
A-1A] Certificates in an amount equal to the product of (a) a fraction,
not greater than one, the numerator of which 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-1A]
Certificates on such Distribution Date, (b) the Base Interest Fraction for
the related Principal Prepayment and such Class of Certificates and (c)
the aggregate amount of Prepayment Premiums or Yield Maintenance Charges,
as applicable, collected on such Principal Prepayment during the related
Due Period. Any Prepayment Premiums and Yield Maintenance Charges
collected during the related Due Period remaining after such distributions
shall be distributed to the Holders of the [Class X-C] Certificates. No
Prepayment Premiums or Yield Maintenance Charges in respect of the Group 2
Mortgage Loans will be distributed to holders of any other Class of
Certificates.
Following the reduction of the Certificate Balances of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class B], [Class C], [Class D], [Class E], [Class F],
[Class G] and [Class H] Certificates to zero, the Trustee shall distribute to
the [Class X-C] Certificates all Prepayment Premiums and Yield Maintenance
Charges actually received during the related Due Period with respect to the
Mortgage Loans and remitted in respect of Lower-Tier Regular Interests pursuant
to Section 4.01(d).
All distributions of Prepayment Premiums or Yield Maintenance
Charges collected during the related Collection Period that represent Prepayment
Premiums or Yield Maintenance Charges actually collected on the related Loan
REMIC Loan shall be deemed to be distributed from the related Loan REMIC to the
Lower-Tier REMIC in respect of such Loan REMIC Regular Interest.
(d) On each Distribution Date, the Trustee shall withdraw amounts
from the Excess Liquidation Proceeds Account (or sub-account thereof) and shall
distribute such amounts in the following manner:
(i) (A) from amounts in the Excess Liquidation Proceeds Account
allocable to a Mortgage Loan (other than the Loan Combination), to
reimburse the Holders of the Principal Balance Certificates (in the order
set forth in Section 4.01(b)) up to an amount equal to all Realized Losses
and Additional Trust Fund Expenses, if any, previously allocated to them
and unreimbursed after application of Available Funds for such
Distribution Date and (B) from amounts in the Excess Liquidation Proceeds
Account allocable to the Loan Combination, to reimburse the Holders of the
Principal Balance
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Certificates, with respect to amounts allocable to the Serviced Mortgage
Loans on a pro rata basis based on the Mortgage Loan's Stated Principal
Balance, up to an amount equal to all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to them and unreimbursed after
application of Available Funds for such Distribution Date and any
remaining amounts to the related B Loan, if any; and
(ii) any amounts remaining in the Excess Liquidations Proceeds
Account after such distributions on any Distribution Date that (a) are
allocable to the Mortgage Loans, shall be applied to offset future
Realized Losses and Additional Trust Fund Expenses and, upon termination
of the Trust Fund, any amounts remaining in the Excess Liquidations
Proceeds Account (other than amounts allocable to the Loan Combination)
shall be distributed by the Trustee to the [Class LR] Certificates; and
(b) are allocable to the [_____] B Loan, shall be remitted within one
Business Day after each such Distribution Date by the Trustee to the
Master Servicer (which shall remit to the [_____] B Loan Noteholder in
accordance with Section 3.05(i)).
Amounts paid with respect to the Mortgage Loans from the Excess
Liquidation Proceeds Account pursuant to the preceding clauses (i) and
(ii) shall first be deemed to have been distributed to the Lower-Tier
Regular Interests in reimbursement of Realized Losses and Additional Trust
Fund Expenses previously allocated thereto in the same manner as provided
in Section 4.01(f). Amounts paid from the Excess Liquidation Proceeds
Account will not reduce the Certificate Balances of the Principal Balance
Certificates receiving such distributions.
(e) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to this Section 4.01(b), the
Trustee shall calculate the amount, if any, of Realized Losses. Any allocation
of Realized Losses to a Class of Principal Balance Certificates shall be made by
reducing the Certificate Balance thereof by the amount so allocated. Any
Realized Losses allocated to a Class of Principal Balance Certificates shall be
allocated among the respective Certificates of such Class in proportion to the
Percentage Interests evidenced thereby. The allocation of Realized Losses shall
constitute an allocation of losses and other shortfalls experienced by the Trust
Fund. Reimbursement of previously allocated Realized Losses will not constitute
distributions of principal for any purpose and will not result in an additional
reduction in the Certificate Balance of the Class of Certificates in respect of
which any such reimbursement is made. To the extent any Nonrecoverable Advances
(plus interest thereon) that were reimbursed from principal collections on the
Mortgage Loans and previously resulted in a reduction of the Principal
Distribution Amount are subsequently recovered on the related Mortgage Loan, the
amount of such recovery will be added to the Certificate Balance of the Class or
Classes of Certificates that previously were allocated Realized Losses, in
sequential order, in each case up to the amount of the unreimbursed Realized
Losses allocated to such Class. If the Certificate Balance of any Class is so
increased, the amount of unreimbursed Realized Losses of such Class shall be
decreased by such amount.
The Certificate Balances of each Class of Principal Balance
Certificates will be reduced without distribution on any Distribution Date as a
write-off to the extent of any Realized Losses allocated to such Class with
respect to such date. Any such write-offs will be applied to Classes of
Principal Balance Certificates in the following order, in each case until the
Certificate Balance of such Class is reduced to zero: first, to the [Class P]
Certificates, second, to the
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[Class O] Certificates; third, to the [Class N] Certificates; fourth, to the
[Class M] Certificates; fifth, to the [Class L] Certificates; sixth, to the
[Class K] Certificates; seventh, to the [Class J] Certificates; eighth, to the
[Class H] Certificates; ninth, to the [Class G] Certificates; tenth, to the
[Class F] Certificates; eleventh, to the [Class E] Certificates; twelfth, to the
[Class D] Certificates; thirteenth, to the [Class C] Certificates; fourteenth,
to the [Class B] Certificates; fifteenth, to the [Class A-J] Certificates; and
finally, to the [Class A-1], [Class A-2], [Class A-3], [Class A-4], [Class
A-AB], [Class A-5] and [Class A-1A] Certificates, pro rata, based on their
respective Certificate Balances, provided that losses allocated to the [Class
A-5] Certificates will be applied first to the [Class A-5B] Certificates then to
the [Class A-5A] Certificates. Any amounts recovered in respect of amounts
previously written off as Realized Losses shall be distributed to the Classes of
Principal Balance Certificates described above in reverse order of allocation of
Realized Losses thereto in accordance with Section 4.01(b). Additional Trust
Fund Expenses and shortfalls in Available Funds due to extraordinary expenses of
the Trust Fund (including indemnification expenses), a reduction in the Mortgage
Rate on a Mortgage Loan by a bankruptcy court pursuant to a plan of
reorganization or pursuant to any of its equitable powers, or otherwise, shall
be treated as and allocated in the same manner as Realized Losses.
Realized Losses, Additional Trust Fund Expenses and such other
amounts described above which are applied to each Class of Principal Balance
Certificates will be allocated to reduce the Lower-Tier Principal Balance(s) of
the Corresponding Lower-Tier Regular Interests in the same manner as principal
is allocated thereto pursuant to Section 4.01(a)(ii).
(f) All amounts distributable to a Class of Certificates pursuant to
this Section 4.01 on each Distribution Date shall be allocated pro rata among
the outstanding Certificates in each such Class based on their respective
Percentage Interests. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
(g) Except as otherwise provided in Section 9.01 with respect to an
Anticipated Termination Date, the Trustee shall, no later than the fifteenth day
of the month in the month preceding the month in which the final distribution
with respect to any Class of Certificates is expected to be made, mail to each
Holder of such Class of Certificates on such date a notice to the effect that:
(A) the Trustee reasonably expects based upon information
previously provided to it that the final distribution with respect
to such Class of Certificates will be made on such Distribution
Date, but only upon presentation and surrender of such Certificates
at the office of the Trustee therein specified, and
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(B) if such final distribution is made on such Distribution Date, no
interest shall accrue on such Certificates from and after such
Distribution Date;
provided, however, that the [Class R] and [Class LR] Certificates shall remain
outstanding until there is no other Class of Certificates or Lower-Tier Regular
Interests outstanding.
Any funds not distributed to any Holder or Holders of such Classes
of Certificates 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 in trust for the benefit of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 4.01(h) shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Holders 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering Holders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Holders shall be paid out of such
funds. If within two years after the second notice any such Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the [Class R] Certificateholders. No interest shall accrue or
be payable to any Holder on any amount held in trust hereunder or by the Trustee
as a result of such Holder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(h). Any such amounts
transferred to the Trustee may be invested in Permitted Investments and all
income and gain realized from investment of such funds shall accrue for its
benefit.
(h) Shortfalls in Available Funds resulting from Excess Prepayment
Interest Shortfalls shall be allocated to and be deemed distributed to, each
Class of Regular Certificates, pro rata, based upon the Interest Accrual Amount
distributable to each such Class prior to reduction by such Excess Prepayment
Interest Shortfalls. Servicer Prepayment Interest Shortfalls shall be deposited
by the Master Servicer into its Collection Account on or prior to the Master
Servicer Remittance Date.
(i) All payments made on the Loan REMIC Loan (or beneficial
interests in the related REO Property) which is an asset of the Loan REMIC shall
be deemed to be paid to the Lower-Tier REMIC before payments are made to the
holders of the Lower-Tier Regular Interests pursuant to Section 4.01(a)(ii), and
shall be treated as principal, interest, Prepayment Premiums or Yield
Maintenance Charges, as the case may be, based on these characterizations with
respect to the Loan REMIC Loan (or REO Property), except where expressly noted
and, in addition, any payment of principal on, or Realized Loss with respect to,
the Loan REMIC Loan shall reduce the Stated Principal Balance of the Loan REMIC
Regular Interest. Any payments on or with respect to the Loan REMIC Loan which
is an asset of the Loan REMIC in excess of the principal, interest, Prepayment
Premiums and Yield Maintenance Charges distributable on the Loan REMIC Regular
Interest shall be distributable to the [Class LR] Certificate in respect of
amounts distributed on the Loan REMIC Residual Interest to the extent provided
in the Loan
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REMIC Declaration; provided, that Excess Liquidation Proceeds with
respect to the Loan REMIC Loan shall be deemed distributed to the Loan REMIC
Residual Interest and immediately deposited in the Excess Liquidation Proceeds
Account.
(j) On the final Servicer Remittance Date, the Master Servicer shall
withdraw from its Collection Account and deliver to the Trustee who shall
distribute to the Mortgage Loan Seller, any Loss of Value Payments relating to
the Mortgage Loans that it is servicing transferred from the Loss of Value
Reserve Fund to the Collection Account on the immediately preceding Servicer
Remittance Date in accordance with Section 3.06(f)(v).
Section 4.02 Statements to Certificateholders; Reports by Trustee;
Other Information Available to the Holders and Others. (a) On each Distribution
Date, the Trustee shall make available to the general public a statement
(substantially in the form set forth as Exhibit K attached hereto and based on
the information set forth in (i) the CMSA Reporting Package prepared by the
Master Servicer and the other reports prepared by the Master Servicer and
Special Servicer relating to such Distribution Date, upon which information the
Trustee may conclusively rely, in accordance with CMSA guidelines and (ii) the
Reconciliation of Funds Report prepared by the Trustee) as to distributions made
on such Distribution Date (each, a "Distribution Date Statement") setting forth
(with respect to each Class of Certificates) the following information:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates (other than
the [Class X-C], [Class X-P], [Class R] and [Class LR] Certificates)
applied to reduce the respective Certificate Balance thereof;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates allocable
to (A) the Interest Accrual Amount and/or (B) Class Interest Shortfalls;
(iii) the aggregate Certificate Balance or aggregate Notional
Balance, as the case may be, of each Class of Certificates, before and
after giving effect to the distributions made on such Distribution Date,
separately identifying any reduction in the aggregate Certificate Balance
(or, if applicable, the aggregate Notional Balance) of each such Class due
to Realized Losses and/or Additional Trust Fund Expenses;
(iv) the Pass-Through Rate for each Class of Certificates applicable
to such Distribution Date and the next succeeding Distribution Date;
(v) the Available Funds for such Distribution Date[, and any other
cash flows received on the Mortgage Loans and applied to pay fees and
expenses] [(including the components of the Available Funds, or such other
cash flows)];
(vi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to Prepayment Premiums or
Yield Maintenance Charges;
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(vii) [the number and related Stated Principal Balances of any
Mortgage Loans modified, extended or waived on a loan-by-loan basis since
the previous Determination Date (including a description of any material
modifications, extensions or waivers to Mortgage Loan terms, fees,
penalties or payments during the Collection Period or that have
cumulatively become material over time);]
(viii) a loan-by-loan listing of each Mortgage Loan which was
defeased during the related Collection Period;
(ix) [the amount on deposit in each account established pursuant to
this Agreement before and after giving effect to the distribution made on
such Distribution Date (and any material account activity since the prior
Distribution Date);]
(x) the number of Mortgage Loans, their aggregate Stated Principal
Balance, the weighted average remaining term to maturity and weighted
average Mortgage Rate of the Mortgage Loans and any REO Loans at the close
of business on the related Due Date to such Distribution Date and
immediately after such Distribution Date;
(xi) the number and aggregate Stated Principal Balance of the
Mortgage Loans or Loan Combination (A) delinquent 30-59 days, (B)
delinquent 60-89 days, (c) delinquent 90 days or more, (D) that are
Specially Serviced Loans that are not delinquent, or (E) current, but not
Specially Serviced, as to which foreclosure proceedings have been
commenced, but not REO Property [(and the information described in Item
1100(b)(5) of Regulation AB to the extent material)];
(xii) with respect to any REO Loan as to which the related Mortgaged
Property became an REO Property during the preceding calendar month, the
city, state, property type, latest Debt Service Coverage Ratio, Stated
Principal Balance and the Stated Principal Balance of such Mortgage Loan
as of the date each became an REO Loan;
(xiii) as to any Mortgage Loan repurchased by the Mortgage Loan
Seller or otherwise liquidated or disposed of during the related
Collection Period, (A) the Loan Number of the related Mortgage Loan, (B)
the amount of proceeds of any repurchase of a Mortgage Loan, Liquidation
Proceeds and/or other amounts, if any, received thereon during the related
Collection Period and the portion thereof included in the Available Funds
for such Distribution Date and (C) the amount of any Realized Loss in
connection with the liquidation;
(xiv) with respect to any REO Property included in the Trust Fund at
the close of business on the related Due Date (A) the Loan Number of the
related Mortgage Loan, (B) the value of such REO Property based on the
most recent Appraisal or valuation;
(xv) with respect to any REO Property sold or otherwise disposed of
during the related Collection Period and for which a Final Recovery
Determination has been made, (A) the Loan Number of the related Mortgage
Loan, (B) the Realized Loss attributable to such Mortgage Loan, (C) the
amount of sale proceeds and other amounts, if any, received in respect of
such REO Property during the related Collection Period and the portion
thereof included in the Available Funds for such Distribution Date, (D)
the date of the
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Final Recovery Determination and (E) the balance of the Excess
Liquidations Proceeds Account for such Distribution Date;
(xvi) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment (other than Liquidation Proceeds and
Insurance Proceeds) during the related Collection Period and the amount
and type of Principal Prepayment occurring, together with the aggregate
amount of Principal Prepayments made during the related Collection Period
and any Excess Prepayment Interest Shortfall for such Distribution Date;
(xvii) the amount of Property Advances and P&I Advances outstanding
(net of reimbursed Advances) which have been made by the Master Servicer,
the Special Servicer or the Trustee in the aggregate and by Mortgaged
Property or Mortgage Loan, as the case may be, and the amount of interest
on such Property Advances or P&I Advances paid to the Master Servicer,
Special Servicer or Trustee since the prior Distribution Date;
(xviii) the aggregate amount of compensation paid to the Trustee and
servicing compensation paid to the Master Servicer[, the Primary Servicer]
and the Special Servicer for the related Determination Date and any other
fees or expenses accrued and paid from the Trust Fund;
(xix) the amount of any Appraisal Reduction Amounts allocated during
the related Collection Period on a loan-by-loan basis; the total Appraisal
Reduction Amounts allocated during the related Collection Period; and the
total Appraisal Reduction Amounts as of such Distribution Date on a
loan-by-loan basis;
(xx) the amount of Realized Losses, Additional Trust Fund Expenses
and Class Interest Shortfalls, if any, incurred (and, if applicable,
reimbursed) and remaining with respect to the Mortgage Loans during the
related Collection Period and in the aggregate for all prior Collection
Periods;
(xxi) the accrued Interest Accrual Amount in respect of each Class
of Certificates for such Distribution Date;
(xxii) the Principal Distribution Amount [and any principal
shortfall] for the Distribution Date;
(xxiii) the fraction, expressed as a decimal carried to at least
eight places, the numerator of which is the then-related Certificate
Balance, and the denominator of which is the related initial Certificate
Balance, for each Class of Certificates (other than the [Class X-C],
[Class X-P], [Class R] and [Class LR] Certificates) immediately following
the Distribution Date;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination date;
(xxv) [the original and then current credit support levels for each
class of Certificates; ]
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(xxvi) the original and then current ratings for each class of
Certificates;
(xxvii) [payments accrued or paid with respect to enhancement or
other support identified in Item 1114 of Regulation AB] [amounts drawn on
any credit enhancement or other support identified in Item 1114 of
Regulation AB and, if applicable, the remaining amount of coverage under
such enhancement or support, if known];
(xxviii) the amount of the distribution on the Distribution Date to
the holders of the [Class X-C], [Class X-P], [Class R] and [Class LR]
Certificates;
(xxix) the Record Date, Interest Accrual Period, and Determination
Date for such Distribution Date;
(xxx) [material breaches of mortgage loan representations and
warranties of which the Trustee, Master Servicer or the Special Servicer
has received written notice;]
(xxxi) [material breaches of any covenants under this Agreement of
which the Trustee, the Master Servicer or the Special Servicer has
received written notice;]
(xxxii) [If applicable to any transaction, information regarding any
tests used for determining any early amortization, liquidation or other
performance trigger and whether the trigger was met]; and
(xxxiii) such other information and in such form as will be
specified in this Agreement.
In the case of information furnished pursuant to subclauses (i),
(ii), (iii), (vi), (xix), (xxii) and (xxviii) above, the amounts shall be
expressed as a dollar amount in the aggregate for all Certificates of each
applicable Class and per $1,000 of original Certificate Balance or Notional
Balance, as the case may be.
On each Distribution Date, the Trustee shall make available to each
Holder of a [Class R] or [Class LR] Certificate a copy of the reports made
available to the other Certificateholders on such Distribution Date and a
statement setting forth the amounts, if any, actually distributed with respect
to the [Class R] or [Class LR] Certificates on such Distribution Date. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that it provided substantially comparable information pursuant to any
requirements of the Code as from time to time in force.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Certificateholder of record, a report summarizing on an
annual basis (if appropriate) the items provided to Certificateholders pursuant
to clauses (i) and (ii) 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 may be required to
enable such Certificateholders to prepare their federal income tax returns. Such
information shall include the amount of original issue discount accrued on each
Class of Certificates held by Persons other than Holders exempted from the
reporting requirements and information regarding the expenses
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of the Trust Fund. Such requirement shall be deemed to be satisfied to the
extent such information is provided pursuant to applicable requirements of the
Code from time to time in force.
(b) [Reserved]
(c) On each Distribution Date, the Trustee shall make available to
the general public via its internet website located at "xxx.xxxxxxx.xxx/XXXX"
(i) the related Distribution Date Statement (in the form of Exhibit K, attached
hereto), (ii) to the extent received from the Master Servicer, the CMSA Loan
Periodic Update File (including the Advance Recovery Report), CMSA Loan Setup
File, CMSA Bond Level File and CMSA Collateral Summary File and (iii) as a
convenience (and not in furtherance of the distribution thereof under the
securities laws), the Prospectus and this Agreement and any other information
requested by the Depositor.
(d) On each Distribution Date beginning in [________], the Trustee
shall make available to any Privileged Person via its internet website (as
described above), to the extent received from the Master Servicer, to any
Privileged Person, the Underwriters and the Initial Purchaser via its internet
website, the CMSA Supplemental Servicer Reports, the CMSA Property File, the
CMSA Financial File and any other information requested by the Depositor. The
information that pertains to Specially Serviced Loans and REO Properties
reflected in such reports shall be based solely upon the reports delivered by
the Special Servicer to the Master Servicer four Business Days prior to the
Master Servicer Remittance Date.
(e) The information contained in the reports in the preceding
paragraph of this Section 4.02 shall be made available to the Trustee
electronically by the Master Servicer, if applicable, in the form of, or
reflected in, the CMSA Reporting Package and the CMSA Reports, and the Trustee
will make such reports and the Reconciliation of Funds Report available via its
internet website (as described above); provided, however, that the Trustee will
provide Certificateholders with a written copy of such reports upon request in
the manner described in such preceding paragraph.
(f) The Trustee makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its Internet website and assumes no responsibility therefor. In
addition, the Trustee may disclaim responsibility for any information
distributed by it for which it is not the original source. The Trustee shall not
be responsible for the accuracy or completeness of any information supplied to
it by the Master Servicer or Special Servicer that is included in any reports,
statements, materials or information prepared or provided by the Master Servicer
or Special Servicer, as applicable, and the Trustee shall be entitled to
conclusively rely upon the Master Servicer' reports and the Special Servicer's
reports without any duty or obligation to recompute, verify or re-evaluate any
of the amounts or other information stated therein. In connection with providing
access to the Trustee's Internet website, the Trustee may require registration
and the acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance herewith.
(g) The Master 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) the CMSA Reporting
Package and any other reports or other information the Master Servicer is
required or permitted to provide to any party to this
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Agreement, the Rating Agencies or any Certificateholder or prospective
Certificateholder to the extent such action does not conflict with the terms of
this Agreement, the terms of the Mortgage Loans or applicable law. In connection
with providing access to its Internet website, the Master Servicer shall take
reasonable measures to ensure that only such parties listed above may access
such information including, without limitation, requiring registration, a
confidentiality agreement and acceptance of a disclaimer. The Master 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 Master 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 Master 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 Master Servicer
is required or permitted to provide to any Borrower with respect to such
Borrower'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. If
the Master Servicer is required to deliver any statement, report or other
information under any provision of this Agreement, then, the Master Servicer 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 its website, unless this Agreement expressly
specifies a particular method of delivery; provided that all reports required to
be delivered to the Trustee shall be delivered in accordance with clause (x) or
(y).
(h) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Master Servicer) provide the Master
Servicer with such information in its possession regarding the Specially
Serviced Loans and REO Properties as may be reasonably necessary for the Master
Servicer to prepare each report and any supplemental information to be provided
by the Master Servicer to the Trustee. Neither the Trustee nor the Depositor
shall have any obligation to recompute, verify or recalculate the information
provided thereto by the Master Servicer. Unless the Trustee has actual knowledge
that any report or file received from the Master Servicer contains erroneous
information, the Trustee is authorized to rely thereon in calculating and making
distributions to Certificateholders and allocating Realized Losses to the
Certificates in accordance with Section 4.01 and preparing the statements to
Certificateholders required by Section 4.02(a).
(i) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Trustee shall provide the
requesting Certificateholder with such information that is in the Trustee's
possession or can reasonably be obtained by the Trustee as is requested by such
Certificateholder, for purposes of satisfying applicable reporting requirements
under Rule 144A under the Securities Act. Neither the Certificate Registrar nor
the Trustee shall have any responsibility for the sufficiency under Rule 144A or
any other securities laws of any available information so furnished to any
person including any prospective purchaser of a Certificate or any interest
therein, nor for the content or accuracy of any information so furnished which
was prepared or delivered to them by another.
(j) The Trustee shall make available at its offices, during normal
business hours, upon not less than two Business Day's prior notice, for review
by any Certificateholder,
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any prospective investor in a Certificate or the [_____] B Loan Noteholder (with
respect to items (iv) - (vii), only to the extent such information relates to
the related [_____] B Loan), the Depositor, the Master Servicer, the Special
Servicer, any Rating Agency and any other Person to whom the Depositor in its
sole judgment, deems that such disclosure is appropriate, originals or copies of
documents relating to the Mortgage Loans and any related REO Properties to the
extent in its possession, including, without limitation, the following items
(except to the extent prohibited by applicable law or under any of the related
Loan Documents): (i) this Agreement and any amendments thereto; (ii) all
Distribution Date Statements delivered to the Certificateholders and any
[_________] B Loan Noteholder since the Closing Date; (iii) all annual Officer's
Certificates and all accountants' reports delivered by the Master Servicer and
the Special Servicer to the Trustee since the Closing Date regarding compliance
with the relevant agreements; (iv) the most recent property inspection report
prepared by or on behalf of the Master Servicer or the Special Servicer in
respect of each Mortgaged Property and delivered to the Trustee; (v) the most
recent annual (or more frequent, if available) operating statements, rent rolls
(to the extent such rent rolls have been made available by the related Borrower)
and/or lease summaries and retail sales information, if any, collected by or on
behalf of the Master Servicer or the Special Servicer in respect to each
Mortgaged Property; (vi) any and all modifications, waivers and amendments of
the terms of a Mortgage Loan or Loan Combination entered into by the Master
Servicer and/or the Special Servicer and delivered to the Trustee; and (vii) any
and all Officer's Certificates and other evidence delivered to or by the Trustee
to support the Master Servicer's or the Special Servicer's, as the case may be,
determination that any Advance, if made, would be a Nonrecoverable Advance.
Copies of any and all of the foregoing items will be available from the Trustee
upon request. The Trustee will be permitted to require payment by the requesting
party (other than a Rating Agency) of a sum sufficient to cover the reasonable
costs and expenses of making such information available and providing any copies
thereof. The Trustee's obligation under this Section 4.02(j) to make available
any document is subject to the Trustee's receipt of such document.
(k) On or within two Business Days following each Distribution Date,
the Trustee shall prepare and furnish to the Financial Market Publisher and each
Underwriter, using the format and media mutually agreed upon by the Trustee, the
Financial Market Publisher, each Underwriter and the Depositor, the following
information regarding each Mortgage Loan and any other information reasonably
requested by each Underwriter and available to the Trustee:
(i) the Loan Number;
(ii) each related Mortgage Rate; and
(iii) the Stated Principal Balance as of such Distribution Date.
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by Section 4.02 to the extent it receives the necessary
underlying information from the Master Servicer or the Special Servicer and
shall not be liable for any failure to deliver any thereof on the prescribed due
dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Master Servicer or
the Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Borrower and the failure of the Trustee, the
Master Servicer or the Special Servicer to disseminate information for such
reason shall not be a breach hereof.
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Section 4.03 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Paying Agent shall
comply with all federal withholding requirements with respect to payments to
Certificateholders of interest or original issue discount that the Paying Agent
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Holder that is a non-U.S. Person that
has furnished or caused to be furnished (i) an effective Form W-8BEN, Form
W-8IMY or Form W-9 or an acceptable substitute form or a successor form and who
is not a "10-percent shareholder" within the meaning of Code Section
871(h)(3)(B) or a "controlled foreign corporation" described in Code Section
881(c)(3)(c) with respect to the Trust Fund or the Depositor, or (ii) an
effective Form W-8ECI or an acceptable substitute form or a successor form. In
the event the Paying Agent or its agent withholds any amount from interest or
original issue discount payments or advances thereof to any Certificateholder
pursuant to federal withholding requirements, the Paying Agent shall indicate
the amount withheld to such Certificateholder. Any amount so withheld shall be
treated as having been distributed to such Certificateholder for all purposes of
this Agreement.
Section 4.04 REMIC Compliance. (a) The parties intend that the Loan
REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC and shall constitute, and
that the affairs of the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier
REMIC shall be conducted so as to qualify it as, a "real estate mortgage
investment conduit" as defined in, and in accordance with, the REMIC Provisions
at all times any Certificates are outstanding, and the provisions hereof shall
be interpreted consistently with this intention. In furtherance of such
intention, the Trustee shall, to the extent permitted by applicable law, act as
agent, and is hereby appointed to act as agent, of each such REMIC and shall on
behalf of each such REMIC:
(i) make an election, on behalf of each of the Loan REMIC, the
Lower-Tier REMIC and the Upper-Tier REMIC, to be treated as a REMIC on
Form 1066 for its first taxable year, in accordance with the REMIC
Provisions;
(ii) prepare and file, or cause to be prepared and filed, all
required Tax Returns for the Loan REMIC, Lower-Tier REMIC and the
Upper-Tier REMIC, using a calendar year as the taxable year for each of
such REMIC as required by the REMIC Provisions and other applicable
federal, state or local income tax laws;
(iii) prepare and forward, or cause to be prepared and forwarded, to
the Certificateholders and the IRS and applicable state and local tax
authorities all information reports as and when required to be provided to
them in accordance with the REMIC Provisions of the Code;
(iv) if the filing or distribution of any documents of an
administrative nature not addressed in clauses (i) through (iii) of this
Section 4.04(a) is then required by the REMIC Provisions in order to
maintain the status of the Loan REMIC, the Lower-Tier REMIC and the
Upper-Tier REMIC as a REMIC or is otherwise required by the Code, prepare
and file or distribute, or cause to be prepared and signed and filed or
distributed, such documents with or to such Persons when and as required
by the REMIC Provisions or the Code or comparable provisions of state and
local law;
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(v) within 30 days of the Closing Date, obtain a taxpayer
identification number for each of the Loan REMIC, the Lower-Tier REMIC and
the Upper-Tier REMIC on IRS Form SS-4 and (in the case of the Upper-Tier
REMIC only), furnish or cause to be furnished to the IRS, on Form 8811 or
as otherwise may be required by the Code, the name, title and address of
the person that the Certificateholders may contact for tax information
relating thereto (and the Trustee shall act as the representative of the
Upper-Tier REMIC for this purpose), together with such additional
information as may be required by such Form, and shall update such
information at the time or times and in the manner required by the Code
(and the Depositor agrees within 10 Business Days of the Closing Date to
provide any information reasonably requested by the Master Servicer, the
Special Servicer or the Trustee and necessary to make such filing); and
(vi) maintain such records relating to the Loan REMIC, the
Lower-Tier REMIC and the Upper-Tier REMIC as may be necessary to prepare
the foregoing returns, schedules, statements or information, such records,
for federal income tax purposes, to be maintained on a calendar year and
on an accrual basis.
The Holder of the largest Percentage Interest in the [Class R]
Certificates shall be the tax matters person of the Upper-Tier REMIC, and the
Holder of the largest Percentage Interest in the [Class LR] Certificates shall
be the tax matters persons of the Lower-Tier REMIC and the Loan REMIC pursuant
to Treasury Regulations Section 1.860F-4(d). The Trustee shall sign all Tax
Returns and other reports required by this Section 4.04 and promptly either file
them or do as otherwise provided by this Section. If more than one Holder shall
hold an equal Percentage Interest in the [Class R] or [Class LR] Certificates
larger than that held by any other Holder, the first such Holder to have
acquired such [Class R] or [Class LR] Certificates shall be such tax matters
person. The Trustee shall act as attorney-in-fact and agent for the tax matters
person of the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC, and
each Holder of a Percentage Interest in the [Class R] or [Class LR]
Certificates, by acceptance hereof, is deemed to have consented to the Trustee's
appointment in such capacity and agrees to execute any documents required to
give effect thereto, and any fees and expenses incurred by the Trustee in
connection with any audit or administrative or judicial proceeding shall be paid
by the Trust Fund.
The Trustee shall not intentionally take any action or intentionally
omit to take any action if, in taking or omitting to take such action, the
Trustee knows that such action or omission (as the case may be) would cause the
termination of the REMIC status of the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC or the imposition of tax on the Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC (other than a tax on income expressly permitted to
be received by the terms of this Agreement). Notwithstanding any provision of
this paragraph to the contrary, the Trustee shall not be required to take any
action that the Trustee in good faith believes to be inconsistent with any other
provision of this Agreement, nor shall the Trustee be deemed in violation of
this paragraph if it takes any action expressly required or authorized by any
other provision of this Agreement, and the Trustee shall have no responsibility
or liability with respect to any act or omission of the Depositor, the Master
Servicer or the Special Servicer which does not enable the Trustee to comply
with any of clauses (i) through (vi) of the first paragraph of this Section
4.04(a) or which results in any action contemplated by clauses (i) or (ii) of
the next succeeding sentence. In this regard the Trustee
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shall (i) exercise reasonable care not to allow the occurrence of any
"prohibited transactions" within the meaning of Code Section 860F(a), unless the
party seeking such action shall have delivered to the Trustee an Opinion of
Counsel (at such party's expense) that such occurrence would not (A) result in a
taxable gain, (B) otherwise subject the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC to tax (other than a tax at the highest marginal corporate tax
rate on net income from foreclosure property), or (c) cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC; and (ii)
exercise reasonable care not to allow the Trust Fund to receive any
contributions, or any income from the performance of services or from assets not
permitted under the REMIC Provisions to be held by a REMIC (provided, however,
that the receipt of any income expressly permitted or contemplated by the terms
of this Agreement shall not be deemed to violate this clause). None of the
Master Servicer, the Special Servicer and the Depositor shall be responsible or
liable (except in connection with any act or omission referred to in the two
preceding sentences or the following sentence) for any failure by the Trustee to
comply with the provisions of this Section 4.04. The Depositor, the Master
Servicer and the Special Servicer shall cooperate in a timely manner with the
Trustee in supplying any information within the Depositor's, the Master
Servicer's or the Special Servicer's control (other than any confidential
information) that is reasonably necessary to enable the Trustee to perform its
duties under this Section 4.04.
(b) The Trustee shall administer the Loan REMIC, in accordance with
the related Loan REMIC Declaration and the REMIC Provisions and shall comply
with and perform all federal and, if applicable, state and local income tax
return and information reporting requirements with respect to the Loan REMIC,
and shall otherwise administer or cooperate in the administration of such Loan
REMIC in the same manner as specified for the Trust REMICs in Section 4.04(a).
The Trustee shall maintain separate accounting with respect to the Loan REMIC
sufficient (i) to comply with such return and information reporting
requirements, including quarterly and annual reporting on Schedule Q's to Form
1066 to the Holders of the [Class LR] Certificates with respect to the Loan
REMIC Residual Interest, (ii) to account for the Loan REMIC Regular Interest as
an asset of the Lower-Tier REMIC, (iii) to pay or cause to be paid any federal,
state or local income tax attributable to such Loan REMIC from payments received
on or with respect to the related Mortgage Loan, and (iv) to cause any payments
on the related Loan REMIC Loan in excess of amounts distributable in respect of
the such Loan REMIC Regular Interest to be distributed in respect of the Loan
REMIC Residual Interest to the extent provided in the Loan REMIC Declaration.
(c) The following assumptions are to be used for purposes of
determining the anticipated payments of principal and interest for calculating
the original yield to maturity and original issue discount with respect to the
Regular Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans will prepay in accordance with
the Prepayment Assumption; (ii) none of the Sole Certificateholder, the Master
Servicer, the Special Servicer and the Certificateholder owning a majority of
the Percentage Interests in the Controlling Class will exercise the right
described in Section 9.01 of this Agreement to cause early termination of the
Trust Fund; and (iii) no Mortgage Loan is repurchased by the Mortgage Loan
Seller pursuant to Article II hereof.
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Section 4.05 Imposition of Tax on the Trust Fund. In the event that
any tax, including interest, penalties or assessments, additional amounts or
additions to tax, is imposed on the Upper-Tier REMIC, the Lower-Tier REMIC or
the Loan REMIC, such tax shall be charged against amounts otherwise
distributable to the Holders of the Certificates; provided, that any taxes
imposed on any net income from foreclosure property pursuant to Code Section
860G(d) or any similar tax imposed by a state or local jurisdiction shall
instead be treated as an expense of the related REO Property in determining Net
REO Proceeds with respect to the REO Property (and until such taxes are paid,
the Special Servicer from time to time shall withdraw from amounts in the REO
Account (and, in the case of the Loan Combination, from amounts in the Loan
Combination REO Account) allocable to the Mortgage Loans and transfer to the
Trustee amounts reasonably determined by the Trustee to be necessary to pay such
taxes, which the Trustee shall maintain in a separate, non-interest-bearing
account, and the Trustee shall send to the Special Servicer for deposit in the
REO Account (or, if applicable, the Loan Combination REO Account) the excess
determined by the Trustee from time to time of the amount in such account over
the amount necessary to pay such taxes) and shall be paid therefrom; provided
that any such tax imposed on net income from foreclosure property that exceeds
the amount in any such reserve shall be retained from Available Funds as
provided in Section 3.06(b)(xiii) or, in the case of the Loan Combination, in
Section 3.06(c)(xiii), and the next sentence. Except as provided in the
preceding sentence, the Trustee is hereby authorized to and shall retain or
cause to be retained from Available Funds sufficient funds to pay or provide for
the payment of, and to actually pay, such tax as is legally owed by the
applicable REMIC (but such authorization shall not prevent the Trustee from
contesting, at the expense of the Trust Fund that (any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The Trustee is hereby authorized to and shall
segregate or cause to be segregated, into a separate non-interest bearing
account, (i) the net income allocable to the Mortgage Loans from any "prohibited
transaction" under Code Section 860F(a) or (ii) the amount of any 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 tax (and return the
balance thereof, if any, to the Collection Account, the Lower-Tier Distribution
Account or the Upper-Tier Distribution Account, as the case may be). To the
extent that any such tax is paid to the IRS, the Trustee shall retain an equal
amount from future amounts otherwise distributable to the Holders of the [Class
R] or the [Class LR] Certificates, as the case may be, and shall distribute such
retained amounts to the Holders of Regular Certificates, or the Trustee as
Holder of the Lower-Tier Regular Interests, until they are fully reimbursed and
then to the Holders of the [Class R] Certificates or the [Class LR]
Certificates, as applicable. Neither the Master Servicer, the Special Servicer
nor the Trustee 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 tax is
attributable to a breach of a representation or warranty or the gross negligence
or willful misconduct of the Master Servicer, the Special Servicer or the
Trustee or an act or omission of the Master Servicer, the Special Servicer or
the Trustee in contravention of this Agreement, provided, further, that such
breach, act or omission could result in liability under Section 6.03, in the
case of the Master Servicer or Section 4.04 or 8.01, in the case of the Trustee.
Notwithstanding anything in this Agreement to the contrary, in each such case,
the Master Servicer or the Special Servicer shall not be responsible for
Trustee's breaches, acts or omissions, and the Trustee shall not be responsible
for the breaches, acts or omissions of the Master Servicer or the Special
Servicer.
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Section 4.06 Remittances. (a) "Applicable Monthly Payment" shall
mean, for any Mortgage Loan with respect to any month, (A) if such Mortgage Loan
is delinquent as to its Balloon Payment (including any such Mortgage Loan as to
which the related Mortgaged Property has become an REO Property), the related
Assumed Scheduled Payment, and (B) if such Mortgage Loan is not described in
clause (A) above (including any such Mortgage Loan as to which the related
Mortgaged Property has become an REO Property), the Monthly Payment (after
giving effect to any modification other than as described in (A) above);
provided, however, that for purposes of calculating the amount of any P&I
Advance required to be made by the Master Servicer or the Trustee,
notwithstanding the amount of such Applicable Monthly Payment, interest shall be
calculated at the Net Mortgage Pass-Through Rate (plus the Trustee Fee Rate).
The Applicable Monthly Payment shall be reduced, for purposes of P&I Advances,
by any modifications pursuant to Section 3.31, Section 3.32, Section 3.33 or
Section 3.34, as applicable, or otherwise and by any reductions by a bankruptcy
court pursuant to a plan of reorganization or pursuant to any of its equitable
powers.
(b) On the Master Servicer Remittance Date immediately preceding
each Distribution Date, the Master Servicer with respect to the Mortgage Loans
that it is servicing shall:
(i) remit to the Trustee for deposit in the Lower-Tier Distribution
Account an amount equal to Prepayment Premiums and Yield Maintenance
Charges, and for deposit in accordance with Section 3.05(j) Excess
Liquidation Proceeds, in each case received by the Master Servicer in its
Collection Period preceding such Distribution Date;
(ii) remit to the Trustee for deposit in the Lower-Tier Distribution
Account an amount equal to the aggregate of the Available Funds for such
Distribution Date; and
(iii) remit to the Trustee for deposit in the Grantor Trust
Distribution Account any amounts received in respect of the Loan REMIC
Residual Interest for the benefit of the [Class LR] Certificateholders
received by the Master Servicer in the Collection Period preceding such
Distribution Date.
Section 4.07 P&I Advances. i) On or before 1:00 p.m. (New York City
time) on the Master Servicer Remittance Date, the Master Servicer shall in the
case of all Mortgage Loans that it is servicing either (i) remit to the Trustee
for deposit into the Lower-Tier Distribution Account from its own funds an
amount equal to the aggregate amount of P&I Advances, if any, to be made in
respect of the related Distribution Date, (ii) apply amounts held in its
Collection Account or the Loan Combination Collection Account, as applicable,
for future distribution to Certificateholders in subsequent months in discharge
of any such obligation to make P&I Advances; provided that amounts in the Loan
Combination Collection Account shall only be applied up to the related Mortgage
Loan's pro rata share of the amounts held therein on such date 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 by the Master Servicer. Any amounts held in
the Collection Account or the Loan Combination Collection Account, as
applicable, for future distribution and so used to make P&I Advances shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Collection Account or the Loan Combination
Collection Account, as applicable, on or before the next succeeding P&I Advance
Determination Date (to the extent not previously replaced through the deposit of
Late
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Collections of the delinquent principal and/or interest in respect of which such
P&I Advances were made). The Master Servicer shall notify the Trustee of (i) the
aggregate amount of P&I Advances for a Distribution Date and (ii) the amount of
any Nonrecoverable P&I Advances for such Distribution Date, on or before the P&I
Advance Determination Date. If the Master Servicer fails to make a required P&I
Advance by 1:00 p.m. (New York City time) on any Servicer Remittance Date, then
the Trustee shall make such P&I Advance pursuant to Section 7.06 by 12:00 noon
(New York City time) on the related Distribution Date, in each case unless the
Master Servicer shall have cured such failure (and provided written notice of
such cure to the Trustee) by 11:00 a.m. (New York City time) on such
Distribution Date or the Trustee determines that such P&I Advance, if made,
would be a Nonrecoverable Advance. Neither the Master Servicer nor the Trustee
shall be required to make P&I Advances on any [_________] B Loan.
(a) Subject to Sections 4.07(c) and 4.07(e) below, the aggregate
amount of P&I Advances to be made by the Master 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 Collection Period and delinquent as of the close of
business on the P&I Advance Determination Date (or not advanced by the Master
Servicer or any Sub-Servicer on behalf of the Master Servicer) with respect to
the Mortgage Loans that it is servicing and (ii) with respect to each Mortgage
Loan that the Master Servicer is servicing and as to which the related Balloon
Payment was due during or prior to the related Collection Period and was
delinquent (including any applicable grace period) as of the end of the related
Collection Period (including any REO Loan as to which the Balloon Payment would
have been past due), an amount equal to the Assumed Scheduled Payment therefor.
Subject to subsection (c) below, the obligation of the Master Servicer to make
such P&I Advances, with respect to the Mortgage Loans that it is servicing, is
mandatory, and with respect to any applicable Mortgage Loan or REO Loan, shall
continue until the Distribution Date on which Liquidation Proceeds or REO
Proceeds, if any, are to be distributed.
(b) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required hereunder if the Master Servicer, the Special Servicer or the
Trustee, as applicable, determines that such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In addition, the Master Servicer shall
not make any P&I Advance to the extent that it has received written notice that
the Special Servicer has determined that such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In making such recoverability
determination, the Master Servicer, the Special Servicer and the Trustee, as
applicable, will be entitled to (i) give due regard to the existence of any
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to
other Mortgage Loans, the recovery of which, at the time of such consideration,
is being deferred or delayed by the Master Servicer or the Trustee, as
applicable, in light of the fact that proceeds on the related Mortgage Loan are
a source of recovery not only for the P&I Advance under consideration, but also
as a potential source of recovery of such Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount which is being or may be deferred or
delayed and (ii) consider (among other things) only the obligations of the
Borrower under the terms of the related Mortgage Loan (or the Loan Combination,
as applicable) as it may have been modified, to consider (among other things)
the related Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions (consistent with the
applicable Servicing Standard in the
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case of the Master Servicer and the Special Servicer) regarding the possibility
and effects of future adverse change with respect to such Mortgaged Properties,
to estimate and consider (consistent with the applicable Servicing Standard in
the case of the Master Servicer and the Special Servicer) (among other things)
future expenses and to estimate and consider (among other things) the timing of
recoveries.
The Master Servicer, the Special Servicer and the Trustee, as
applicable, shall consider Unliquidated Advances in respect of prior P&I
Advances for purposes of nonrecoverability determinations as if such
Unliquidated Advances were xxxxxxxxxxxx X&X Advances. None of the Master
Servicer or Trustee shall make any P&I Advances with respect to delinquent
amounts due on any [_________] B Loan. If an Appraisal of the related Mortgaged
Property shall not have been obtained within the prior 12 month period (and the
Master Servicer and the Trustee shall each request any such appraisal from the
Special Servicer prior to ordering an Appraisal pursuant to this sentence) or if
such an Appraisal shall have been obtained but as a result of unforeseen
occurrences, such Appraisal does not, in the good faith determination of the
Master Servicer, the Special Servicer or the Trustee, reflect current market
conditions, and the Master Servicer or the Trustee, as applicable, and the
Special Servicer cannot agree on the appropriate downward adjustment to such
Appraisal, the Master Servicer, the Special Servicer or the Trustee, as the case
may be, may, subject to its reasonable and good faith determination that such
Appraisal will demonstrate the nonrecoverability of the related Advance, obtain
an Appraisal for such purpose at the expense of the Trust Fund (and, in the case
of the Loan Combination, first of the related B Loan Noteholder, if any, and
second, to the extent such expense remains unpaid, of the Trust Fund).
Any such determination by the Master Servicer or the Trustee 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 a
certificate of a Servicing Officer delivered to the Trustee, the other Servicer,
the Special Servicer and the Depositor and, in the case of the Trustee, by a
certificate of a Responsible Officer of the Trustee, delivered to the Depositor,
the Master Servicer and the Special Servicer, which in each case sets forth such
nonrecoverability determination and the considerations of the Master Servicer or
the Trustee, as applicable, forming the basis of such determination (such
certificate accompanied by, to the extent available, income and expense
statements, rent rolls, occupancy status, property inspections and other
information used by the Master Servicer or the Trustee, as applicable, to make
such determination, together with any existing Appraisal or any Updated
Appraisal); provided, however, that the Special Servicer may, at its option,
make a determination in accordance with the Servicing Standard, that any P&I
Advance previously made or proposed to be made is nonrecoverable and shall
deliver to the Master Servicer and the Trustee notice of such determination. Any
such determination shall be conclusive and binding on the Master Servicer, the
Special Servicer and the Trustee.
Any such Person may update or change its recoverability
determinations at any time (but not reverse any other Person's determination
that a P&I Advance is a Nonrecoverable Advance) and (consistent with the
applicable Servicing Standard in the case of the Master Servicer or the Special
Servicer) may obtain, at the expense of the Trust Fund (and, in the case of the
Loan Combination, first of the related B Loan Noteholder, if any, and second, to
the extent such expense remains unpaid, of the Trust Fund), any analysis,
Appraisals or market value
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estimates or other information for such purposes. Absent bad faith, any such
determination as to the recoverability of any P&I Advance shall be conclusive
and binding on the Certificateholders.
Notwithstanding the above, (i) the Trustee shall be entitled to rely
conclusively on any determination by the Master Servicer or the Special
Servicer, as applicable, that a P&I Advance, if made, would be a Nonrecoverable
P&I Advance and (ii) the Master Servicer will be entitled to rely conclusively
on any nonrecoverability determination of the Special Servicer. The Trustee, in
determining whether or not a P&I Advance previously made is, or a proposed P&I
Advance, if made, would be, a Nonrecoverable P&I Advance shall be subject to the
standards applicable to the Master Servicer hereunder. The Special Servicer
shall promptly furnish the Master Servicer and the Trustee with any information
in its possession regarding the Specially Serviced Loans and REO Properties as
each such party may reasonably request for purposes of making recoverability
determinations.
(c) In connection with the recovery of any P&I Advance out of the
Collection Account pursuant to Section 3.06(b) or the Loan Combination
Collection Account pursuant to Section 3.06(c), the Master Servicer shall be
entitled to pay itself or the Trustee, as the case may be (in reverse of such
order with respect to any Mortgage Loan or REO Property), out of any amounts
then on deposit in its Collection Account or the Loan Combination Collection
Account (to the extent amounts therein relate to the Mortgage Loans, taking into
account the related Co-Lender Agreement), as applicable, interest at the Advance
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 (or if such P&I
Advance was made prior to the end of any grace period applicable to the subject
delinquent Monthly Payment, for so long as such P&I Advance is outstanding
following the end of such grace period) with respect to the Mortgage Loan that
the Master Servicer is servicing. The Master 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 its
Collection Account or the Loan Combination Collection Account with respect to
the Mortgage Loan that the Master Servicer is servicing.
Notwithstanding the foregoing, (i) neither the Master Servicer nor
the Trustee shall make an advance for Yield Maintenance Charges or Penalty
Charges and (ii) the amount of any P&I Advance with respect to a Mortgage Loan
as to which there has been an Appraisal Reduction will be an amount equal to the
product of (i) the amount required to be advanced without giving effect to this
proviso and (ii) a fraction, the numerator of which is the Stated Principal
Balance of such Mortgage Loan as of the immediately preceding Determination Date
less any Appraisal Reduction Amount applicable to such Mortgage Loan and the
denominator of which is the Stated Principal Balance of such Mortgage Loan as of
such Determination Date. All P&I Advances for any Mortgage Loans that have been
modified shall be calculated on the basis of their terms as modified.
The portion of any Insurance Proceeds and Net Liquidation Proceeds
in respect of a Mortgage Loan or any REO Loan allocable to principal shall equal
the total amount of such proceeds minus (i) any portion thereof payable to the
Master Servicer, the Special Servicer or the Trustee pursuant to this Agreement
and (ii) a portion thereof equal to the interest component of the Monthly
Payment(s), as accrued at the related Net Mortgage Rate from the date as to
which interest was last paid by the Borrower up to but not including the Due
Date in the Collection Period in which such proceeds are received; provided,
however, in the event that the interest
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portion(s) of one or more P&I Advances with respect of such Mortgage Loan or REO
Loan, as applicable, were reduced as a result of an Appraisal Reduction Event,
the amount of the Net Liquidation Proceeds to be applied to interest shall be
reduced by the aggregate amount of such reductions and the portion of such Net
Liquidation Proceeds to be applied to principal shall be increased by such
amount, and if the amount of the Net Liquidation Proceeds to be applied to
principal has been applied to pay the principal of such Mortgage Loan or REO
Loan in full, any remaining Net Liquidation Proceeds shall then be applied to
pay any remaining accrued and unpaid interest of such Mortgage Loan or REO Loan.
(d) The Master Servicer or the Trustee, as applicable, shall be
entitled to the reimbursement of P&I Advances it makes to the extent permitted
pursuant to Section 3.06 of this Agreement together with any related Advance
Interest Amount in respect of such P&I Advances to the extent permitted pursuant
to Section 3.06 and the Master Servicer and the Special Servicer each hereby
covenants and agrees to promptly seek and effect the reimbursement of such
Advances from the related Borrowers to the extent permitted by applicable law
and the related Mortgage Loan and this Agreement.
Section 4.08 Grantor Trust Reporting. The parties intend that the
portions of the Trust Fund consisting of the Loan REMIC Residual Interest, shall
be treated as a "grantor trust" under the Code, and the provisions thereof shall
be interpreted consistently with this intention. In furtherance of such
intention, the Trustee shall furnish or cause to be furnished to the [Class
A-1], [Class X-C], [Class X-P] and [Class LR] Certificateholders and shall file
or cause to be filed with the IRS Form 1041 or such other form as may be
applicable and shall furnish or cause to be furnished to the Holders of the
[Class LR] Certificates their allocable share of income with respect to the Loan
REMIC Residual Interest, as the case may be, as such amounts accrue, in the case
of the Loan REMIC Residual Interest. In addition, the Trustee shall maintain
adequate books and records to account for the separate entitlements of the Loan
REMIC Interests, the Lower-Tier REMIC and the Grantor Trust.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. (a) The Certificates consist of the
[Class A-1] Certificates, the [Class A-2] Certificates, the [Class A-3]
Certificates, the [Class A-4] Certificates, the [Class A-AB] Certificates, the
[Class A-5A] Certificates, the [Class A-5B] Certificates, the [Class A-1A]
Certificates, the [Class X-C] Certificates, the [Class X-P] Certificates, the
[Class A-J] Certificates, the [Class B] Certificates, the [Class C]
Certificates, the [Class D] Certificates, the [Class E] Certificates, the [Class
F] Certificates, the [Class G] Certificates, the [Class H] Certificates, the
[Class J] Certificates, the [Class K] Certificates, the [Class L] Certificates,
the [Class M] Certificates, the [Class N] Certificates, the [Class O]
Certificates, the [Class P] Certificates, the [Class R] Certificates and the
[Class LR] Certificates.
The [Class A-1], [Class A-2], [Class A-3], [Class A-4], [Class
A-AB], [Class A-5A], [Class A-5B], [Class A-1A], [Class X-C], [Class X-P],
[Class A-J], [Class B], [Class C], [Class D], [Class E], [Class F], [Class G],
[Class H], [Class J], [Class K], [Class L], [Class M], [Class N], [Class O],
[Class P], [Class R] and [Class LR] Certificates will be
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substantially in the forms annexed hereto as Exhibits A-1 through A-27, as set
forth in the Table of Exhibits hereto. The Certificates of each Class will be
issuable in registered form only, in minimum denominations of authorized
Certificate Balance or Notional Balance, as applicable, as described in the
succeeding table, and multiples of $l in excess thereof (or such lesser amount
if the Certificate Balance or Notional Balance, as applicable, is not a multiple
of $1). 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) in the case of any Global Certificate, set forth on a
schedule attached thereto or, in the case of any beneficial interest in a Global
Certificate, the amount set forth on the books and records of the related
Depository Participant or Indirect Participant, as applicable, (ii) expressed in
terms of Certificate Balance or Notional Balance, as applicable, and (iii) be in
an authorized denomination, as set forth below.
Minimum Aggregate Denomination of
Class Denomination all Certificates of Class
------------------- ------------------- ------------------------------
[A-1]............ $[10,000] $[48,000,000]
[A-2]............ $[10,000] $[184,500,000]
[A-3]............ $[10,000] $[59,100,000]
[A-4]............ $[10,000] $[35,500,000]
[A-AB]........... $[10,000] $[71,900,000]
[A-5A]........... $[10,000] $[792,716,000]
[A-5B]........... $[10,000] $[113,246,000]
[A-1A]........... $[10,000] $[513,040,000]
[X-C]............ $[1,000,000] $[2,272,502,889]
[X-P]............ $[1,000,000] $[2,221,001,000]
[A-J]............ $[10,000] $[170,438,000]
[B].............. $[25,000] $[45,450,000]
[C].............. $[25,000] $[19,884,000]
[D].............. $[25,000] $[36,928,000]
[E].............. $[25,000] $[28,406,000]
[F].............. $[25,000] $[25,566,000]
[G].............. $[25,000] $[25,565,000]
[H].............. $[25,000] $[22,726,000]
[J].............. $[25,000] $[14,203,000]
[K].............. $[25,000] $[11,362,000]
[L].............. $[25,000] $[5,681,000]
[M].............. $[25,000] $[14,203,000]
[N].............. $[25,000] $[2,840,000]
[O].............. $[25,000] $[5,681,000]
[P].............. $[25,000] $[25,567,889]
Each Certificate will share ratably in all rights of the related
Class. The [Class R] and LR Certificates will each be issuable in one or more
registered, definitive physical certificates in minimum denominations of 5%
Percentage Interests and integral multiples of a 1% Percentage Interest in
excess thereof and together aggregating the entire 100% Percentage Interest in
each such Class.
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The Global Certificates shall be issued as one or more certificates
registered in the name of a nominee designated by the Depository, and Beneficial
Owners shall hold interests in the Global Certificates through the book-entry
facilities of the Depository in the minimum Denominations and aggregate
Denominations and Classes as set forth above.
The Global Certificates shall in all respects be entitled to the
same benefits under this Agreement as Individual Certificates authenticated and
delivered hereunder.
(b) Except insofar as pertains to any Individual Certificate, the
Trust Fund, the Paying Agent and the Trustee may for all purposes (including the
making of payments due on the Global Certificates and the giving of notice to
Holders thereof) deal with the Depository as the authorized representative of
the Beneficial Owners with respect to the Global Certificates for the purposes
of exercising the rights of Certificateholders hereunder; provided, however,
that, for purposes of providing information pursuant to Section 3.22 or
transmitting communications pursuant to Section 5.05(a), to the extent that the
Depositor has provided the Trustee with the names of Beneficial Owners (even if
such Certificateholders hold their Certificates through the Depository) the
Trustee shall provide such information to such Beneficial Owners directly. The
rights of Beneficial Owners with respect to Global Certificates shall be limited
to those established by law and agreements between such Certificateholders and
the Depository and Depository Participants. Except as set forth in Section
5.01(e) below, Beneficial Owners of Global Certificates shall not be entitled to
physical certificates for the Global Certificates as to which they are the
Beneficial Owners. Requests and directions from, and votes of, the Depository as
Holder of the Global Certificates shall not be deemed inconsistent if they are
made with respect to different Beneficial Owners. Subject to the restrictions on
transfer set forth in this Section 5.02 and Applicable Procedures, the holder of
a beneficial interest in a Private Global Certificate may request that the
Trustee cause the Depository (or any Agent Member) to notify the Certificate
Registrar and the Certificate Custodian in writing of a request for transfer or
exchange of such beneficial interest for an Individual Certificate or
Certificates. Upon receipt of such a request and payment by the related
Beneficial Owner of any attendant expenses, the Depositor shall cause the
issuance and delivery of such Individual Certificates. The Certificate Registrar
may establish a reasonable record date in connection with solicitations of
consents from or voting by Certificateholders and give notice to the Depository
of such record date. Without the written consent of the Certificate Registrar,
no Global Certificate may be transferred by the Depository except to a successor
Depository that agrees to hold the Global Certificates for the account of the
Beneficial Owners.
(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.
(d) The Global Certificates (i) shall be delivered by the
Certificate Registrar to the Depository or, pursuant to the Depository's
instructions on behalf of the Depository to, and deposited with, the Certificate
Custodian, and in either case shall be registered in the name of Cede & Co. and
(ii) shall bear a legend substantially to the following effect:
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"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 Global 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 (i) the Depository advises the Trustee in writing that the
Depository is no longer willing, qualified or able properly to discharge its
responsibilities as Depository, and the Depositor is unable to locate a
qualified successor, (ii) the Depositor, at its sole option, elects to terminate
the book-entry system through the Depository with respect to all or any portion
of any Class of Certificates or (iii) after the occurrence of an Event of
Default, Beneficial Owners owning not less than a majority in Certificate
Balance or Notional Balance, as applicable, of the Global Certificate for any
Class then outstanding advise the Trustee and the Depository through Depository
Participants in writing that the continuation of a book-entry system through the
Depository is no longer in the best interests of the Beneficial Owner or Owners
of such Global Certificate, the Trustee shall notify the affected Beneficial
Owner or Owners through the Depository of the occurrence of such event and the
availability of Individual Certificates to such Beneficial Owners requesting
them. Upon surrender to the Trustee of Global Certificates by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall issue the Individual Certificates. Neither the
Trustee, the Certificate Registrar, the Master Servicer, the Special Servicer
nor the Depositor shall be liable for any actions taken by the Depository or its
nominee, including, without limitation, any delay in delivery of such
instructions. Upon the issuance of Individual Certificates, the Trustee, the
Certificate Registrar and the Master Servicer shall recognize the Holders of
Individual Certificates as Certificateholders hereunder.
(f) If the Trustee, its agents or the Master Servicer or Special
Servicer have instituted or have been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under the
Certificates, and the Trustee, the Master Servicer or the Special Servicer have
been advised by counsel that in connection with such proceeding it is necessary
or appropriate for the Trustee, the Master Servicer or the Special Servicer to
obtain possession of the Certificates, the Trustee, the Master Servicer or the
Special Servicer may in their sole discretion determine that the Certificates
represented by the Global Certificates shall no longer be represented by such
Global Certificates. In such event, the Trustee or the Authenticating Agent will
execute and authenticate and the Certificate Registrar will deliver, in exchange
for such Global Certificates, Individual Certificates (and if the Trustee or the
Certificate Custodian has in its possession Individual Certificates previously
executed, the
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Authenticating Agent will authenticate and the Certificate Registrar will
deliver such Certificates) in a Denomination equal to the aggregate Denomination
of such Global Certificates.
(g) If the Trust Fund ceases to be subject to Section 13 or 15(d) of
the Exchange Act, the Trustee shall make available to each Holder of a [Class
X-C], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L], [Class
M], [Class N] and [Class O], [Class P], [Class R] or [Class LR] Certificate,
upon request of such a Holder, information, to the extent such information is in
its possession, substantially equivalent in scope to the information currently
filed by the Master Servicer with the Commission pursuant to the Exchange Act,
plus such additional information required to be provided for securities
qualifying for resales under Rule 144A under the Act, all of which information
referred to in this paragraph shall be provided on a timely basis to the Trustee
by the Master Servicer.
For so long as the [Class R] or [Class LR] Certificates remain
outstanding, none of the Depositor, the Trustee or the Certificate Registrar
shall take any action which would cause the Trust Fund to fail to be subject to
Section 15(d) of the Exchange Act.
(h) Each Certificate may be printed or in typewritten or similar
form, and each Certificate shall, upon original issue, be executed and
authenticated by the Trustee or the Authenticating Agent and delivered to the
Depositor. All Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee or Authenticating Agent by an authorized officer or
signatory. Certificates bearing the signature of an individual who was at any
time the proper officer or signatory of the Trustee or Authenticating Agent
shall bind the Trustee or Authenticating Agent, notwithstanding that such
individual has ceased to hold such office or position prior to the delivery of
such Certificates or did not hold such office or position at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication in the form set forth in Exhibits A-1 through
A-27 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.
(i) If, in connection with any Distribution Date, the Trustee shall
have reported the amount of an anticipated distribution to the Depository based
on the expected receipt of any monthly payment based on information set forth in
any report of the Master Servicer or the Special Servicer, or any other monthly
payment, Balloon Payment or prepayment expected to be paid on the last two
Business Days preceding such Distribution Date, and the related Borrower fails
to make such payments at such time, the Trustee shall use commercially
reasonable efforts to cause the Depository to make the revised distribution on a
timely basis on such Distribution Date. Any out-of-pocket costs incurred by the
Trustee as a consequence of a Borrower failing to make such payments shall be
reimbursable to the Trustee as an expense of the Trust Fund.
Section 5.02 Registration, Transfer and Exchange of Certificates.
(a) The Trustee shall keep or cause to be kept at its offices books (the
"Certificate Register") for the registration, transfer and exchange of
Certificates (the Trustee, in such capacity, being the "Certificate Registrar").
The Depositor, the Master Servicer and the Special Servicer shall have the right
to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and
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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 the individual Participants holding beneficial
interests in the Trust Fund through the Depository. 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 Depositor, Certificate
Registrar, the Master Servicer, Special Servicer, the Trustee, the Trustee, any
Paying Agent and any agent of any of them shall not be affected by any notice or
knowledge to the contrary. An Individual Certificate is transferable or
exchangeable only upon the surrender of such Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements of
Sections 5.01(h) and 5.02(c), (d), (e), (f), (g), (h) and (i). Upon request of
the Trustee, the Certificate Registrar shall provide the Trustee with the names,
addresses and Percentage Interests of the Holders.
(b) Upon surrender for registration of transfer of any Individual
Certificate, subject to the requirements of Sections 5.02(c), (d), (e), (f),
(g), (h) and (i), the Trustee 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 Individual 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
subsequently destroyed by the Certificate Registrar. Each new Certificate issued
pursuant to this Section 5.02 shall be registered in the name of any Person as
the transferring Holder may request, subject to the provisions of Sections
5.01(h) and 5.02(c), (d), (e), (f), (g), (h) and (i).
(c) In addition to the provisions of Sections 5.01(h) and 5.02(d),
(e), (f), (g), (h) and (i) and the rules of the Depository, the exchange,
transfer and registration of transfer of Individual Certificates or beneficial
interests in the Private Global Certificates shall be subject to the following
restrictions:
(i) Transfers between Holders of Individual Certificates. With
respect to the transfer and registration of transfer of an Individual
Certificate representing an interest in the [Class R] or [Class LR]
Certificates to a transferee that takes delivery in the form of an
Individual Certificate:
(A) The Certificate Registrar shall register the transfer of
an Individual Certificate if the requested transfer is being made by
a transferee who has provided the Certificate Registrar with an
Investment Representation Letter substantially in the form of
Exhibit D-1 hereto (an "Investment Representation Letter"), to the
effect that the transfer is being made to a Qualified Institutional
Buyer in accordance with Rule 144A;
(B) The Certificate Registrar shall register the transfer of
an Individual Certificate pursuant to Regulation S after the
expiration of the Restricted Period if (1) the transferor has
provided the Certificate Registrar with a Regulation S Transfer
Certificate substantially in the form of Exhibit G hereto (a
"Regulation S
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Transfer Certificate"), and (2) the transferee furnishes to the
Certificate Registrar an Investment Representation Letter; or
(C) The Certificate Registrar shall register the transfer of
an Individual Certificate if prior to the transfer such transferee
furnishes to the Certificate Registrar (1) an Investment
Representation Letter to the effect that the transfer is being made
to an Institutional Accredited Investor or to an Affiliated Person
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;
and, in each case, the Certificate Registrar shall register the transfer
of an Individual Certificate only if prior to the transfer the transferee
furnishes to the Certificate Registrar a written undertaking by the
transferor to reimburse the Trust Fund for any costs incurred by it in
connection with the proposed transfer. In addition, the Certificate
Registrar may, as a condition of the registration of any such transfer,
require the transferor to furnish such other certificates, legal opinions
or other information (at the transferor's expense) as the Certificate
Registrar may reasonably require to confirm that the proposed transfer is
being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Act and other applicable laws.
(ii) Transfers within the Private Global Certificates.
Notwithstanding any provision to the contrary herein, so long as a Private
Global Certificate remains outstanding and is held by or on behalf of the
Depository, transfers within the Private Global Certificates shall only be
made in accordance with this Section 5.02(c)(ii).
(A) Rule 144A Global Certificate to Regulation S Global
Certificate During the Restricted Period. If, during the Restricted
Period, a Beneficial Owner of an interest in a Rule 144A Global
Certificate wishes at any time to transfer its beneficial interest
in such Rule 144A Global Certificate to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the related
Regulation S Global 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 such Regulation S Global
Certificate only upon compliance with the provisions of this Section
5.02(c)(ii)(A). Upon receipt by the Certificate Registrar at the
Corporate Trust Office of (1) written instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Certificate Registrar to credit or cause to be
credited to another specified Agent Member's account a beneficial
interest in the Regulation S Global Certificate in an amount equal
to the Denomination of the beneficial interest in the Rule 144A
Global Certificate to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information
regarding the account of the Agent Member and the Euroclear or
Clearstream account, as the case may be, to be credited with, and
the account of the Agent Member to be debited for, such beneficial
interest, and (3) a certificate in the form of Exhibit H hereto
given by the Beneficial Owner of such interest, the Certificate
Registrar
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shall instruct the Depository or the Certificate Custodian, as
applicable, to reduce the Denomination of the Rule 144A Global
Certificate by the Denomination of the beneficial interest in the
Rule 144A Global Certificate to be so transferred and, concurrently
with such reduction, to increase the Denomination of the Regulation
S Global Certificate by the Denomination of the beneficial interest
in the Rule 144A Global 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 an Agent Member acting
for or on behalf of Euroclear or Clearstream, or both, as the ease
may be) a beneficial interest in the Regulation S Global Certificate
having a Denomination equal to the amount by which the Denomination
of the Rule 144A Global Certificate was reduced upon such transfer.
(B) Rule 144A Global Certificate to Regulation S Global
Certificate After the Restricted Period. If, after the Restricted
Period, a Beneficial Owner of an interest in a Rule 144A Global
Certificate wishes at any time to transfer its beneficial interest
in such Rule 144A Global Certificate to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the related
Regulation S Global 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 such Regulation S Global Certificate only upon
compliance with the provisions of this Section 5.02(c)(ii)(B). Upon
receipt by the Certificate Registrar at the Corporate Trust Office
of (1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate Registrar
to credit or cause to be credited to another specified Agent
Member's account a beneficial interest in the Regulation S Global
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Global Certificate to be transferred, (2)
a written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member
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 Agent Member to be
debited for, such beneficial interest, and (3) a certificate in the
form of Exhibit I hereto given by the Beneficial Owner of such
interest, the Certificate Registrar shall instruct the Depository or
the Certificate Custodian, as applicable, to reduce the Denomination
of the Rule 144A Global Certificate by the aggregate Denomination of
the beneficial interest in the Rule 144A Global Certificate to be so
transferred and, concurrently with such reduction, to increase the
Denomination of the Regulation S Global Certificate by the aggregate
Denomination of the beneficial interest in the Rule 144A Global
Certificate to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions
a beneficial interest in the Regulation S Global Certificate having
a Denomination equal to the amount by which the Denomination of the
Rule 144A Global Certificate was reduced upon such transfer.
(C) Regulation S Global Certificate to Rule 144A Global
Certificate. If the Beneficial Owner of an interest in a Regulation
S Global Certificate wishes
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at any time to transfer its beneficial interest in such Regulation S
Global Certificate to a Person who wishes to take delivery thereof
in the form of a beneficial interest in the related Rule 144A Global
Certificate, such Beneficial Owner may, in addition to complying
with all Applicable Procedures, transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in
such Rule 144A Global Certificate only upon compliance with the
provisions of this Section 5.02(c)(ii)(C). Upon receipt by the
Certificate Registrar at the Corporate Trust Office of (1) written
instructions given in accordance with the Applicable Procedures from
an Agent Member directing the Certificate Registrar to credit or
cause to be credited to another specified Agent Member's account a
beneficial interest in the Rule 144A Global Certificate in an amount
equal to the Denomination of the beneficial interest in the
Regulation S Global Certificate to be transferred, (2) a written
order given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member to be credited
with, and the account of the Agent Member 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 a Regulation S Global Certificate for a beneficial
interest in the related Rule 144A Global Certificate (i) during the
Restricted Period, a certificate in the form of Exhibit J hereto
given by the holder of such beneficial interest or (ii) after the
Restricted Period, an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified
Institutional Buyer, the Certificate Registrar shall instruct the
Depository or the Certificate Custodian, as applicable, to reduce
the Denomination of the Regulation S Global Certificate by the
aggregate Denomination of the beneficial interest in the Regulation
S Global Certificate to be transferred, and, concurrently with such
reduction, to increase the Denomination of the Rule 144A Global
Certificate by the aggregate Denomination of the beneficial interest
in the Regulation S Global Certificate to be so transferred, and to
credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in such Rule
144A Global Certificate having a Denomination equal to the amount by
which the Denomination of the Regulation S Global Certificate was
reduced upon such transfer.
(iii) Transfers from the Private Global Certificates to Individual
Certificates. Any and all transfers from a Private Global Certificate to a
transferee wishing to take delivery in the form of an Individual
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Individual Certificate described in a
legend set forth on the face of such Certificate substantially in the form
of Exhibit F as attached hereto (the "Securities Legend"), and such
transferee agrees that it will transfer such Individual Certificate only
as provided therein and herein. No such transfer shall be made and the
Certificate Registrar shall not register any such transfer unless such
transfer is made in accordance with this Section 5.02(c)(iii).
(A) Transfers of a beneficial interest in a Private Global
Certificate to an Institutional Accredited Investor will require
delivery in the form of an
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Individual Certificate and the Certificate Registrar shall register
such transfer only upon compliance with the provisions of Section
5.02(c)(i)(c).
(B) Transfers of a beneficial interest in a Private Global
Certificate to a Qualified Institutional Buyer or a Regulation S
Investor wishing to take delivery in the form of an Individual
Certificate will be registered by the Certificate Registrar only
upon compliance with the provisions of Sections 5.02(c)(i)(A) and
(B), respectively.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Global Certificate to an Individual
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
Private Global Certificate for an Individual Certificate, as provided
herein, the Certificate Registrar shall endorse on the schedule affixed to
the related Private Global Certificate (or on a continuation of such
schedule affixed to such Private Global 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 Private Global
Certificate equal to the Denomination of such Individual Certificate
issued in exchange therefor or upon transfer thereof. Unless determined
otherwise by the Certificate Registrar and the Depositor in accordance
with applicable law, an Individual Certificate issued upon transfer of or
exchange for a beneficial interest in the Private Global Certificate shall
bear the Securities Legend.
(iv) Transfers of Individual Certificates to the Private Global
Certificates. If a Holder of an Individual 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
Global Certificate or the related Rule 144A Global Certificate, such
transfer may be effected only in accordance with the Applicable Procedures
and this Section 5.02(c)(iv). Upon receipt by the Certificate Registrar at
the Corporate Trust Office of (l) the Individual Certificate to be
transferred with an assignment and transfer pursuant to Section 5.02(a),
(2) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate Registrar to
credit or cause to be credited to a specified Agent Member's account a
beneficial interest in such Regulation S Global Certificate or such Rule
144A Global Certificate, as the case may be, in an amount equal to the
Denomination of the Individual Certificate to be so transferred, (3) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member 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) an Investment Representation Letter from
the transferee and, if delivery is to be taken in the form of a beneficial
interest in the Regulation S Global 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 Global Certificate, the Certificate Registrar
shall cancel such Individual Certificate, execute and deliver a new
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Individual Certificate for the Denomination of the Individual 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
shall instruct the Depository or the Certificate Custodian, as applicable,
to increase the Denomination of the Regulation S Global Certificate or the
Rule 144A Global Certificate, as the case may be, by the Denomination of
the Individual Certificate to be so transferred, and to 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 Global Certificate
during the Restricted Period, shall be an Agent Member acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be, a
corresponding Denomination of the Rule 144A Global Certificate or the
Regulation S Global 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 Private
Global Certificate.
(v) All Transfers. An exchange of a beneficial interest in a Private
Global Certificate for an Individual Certificate or Certificates, an
exchange of an Individual Certificate or Certificates for a beneficial
interest in a Private Global Certificate and an exchange of an Individual
Certificate or Certificates for another Individual Certificate or
Certificates (in each case, whether or not such exchange is made in
anticipation of subsequent transfer, and, in the case of the Private
Global Certificates, so long as the Private Global Certificates remain
outstanding and are held by or on behalf of the Depository), may be made
only in accordance with this Section 5.02 and in accordance with the rules
of the Depository and Applicable Procedures.
(d) If Certificates are issued upon the transfer, exchange or
replacement of Certificates not bearing the Securities Legend, the Certificates
so issued shall not bear the Securities Legend. If Certificates are issued upon
the transfer, exchange or replacement of Certificates bearing the Securities
Legend, or if a request is made to remove the Securities Legend on a
Certificate, the Certificates so issued shall bear the Securities Legend, or the
Securities Legend shall not be removed, as the case may be, unless there is
delivered to the Certificate Registrar such satisfactory evidence, which may
include an opinion of counsel (at the expense of the party requesting the
removal of such legend) familiar with United States securities laws, as may be
reasonably required by the Certificate Registrar, that neither the Securities
Legend nor the restrictions on transfers set forth therein are required to
ensure that transfers of any Certificate comply with the provisions of Rule 144A
or Rule 144 under the Act or that such Certificate is not a "restricted
security" within the meaning of Rule 144 under the Act. Upon provision of such
satisfactory evidence, the Certificate Registrar shall execute and deliver a
Certificate that does not bear the Securities Legend.
(e) Subject to the restrictions on transfer and exchange set forth
in Section 5.01(i) and in this Section 5.02, the Holder of any Individual
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 office of the Trustee or at the office of any transfer agent
appointed as provided under this Agreement, 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. Following a proper request
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for transfer or exchange, the Certificate Registrar shall, within five Business
Days of such request if made at such office of the Trustee or within ten
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at the office of the Trustee 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, an Individual 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 Individual
Certificate shall not be valid unless made at the office of the Trustee 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.
(f) An Individual Certificate (other than an Individual Certificate
issued in exchange for a beneficial interest in a Global Certificate pursuant to
Section 5.01) or a beneficial interest in a Private Global Certificate may only
be transferred to Eligible Investors, as described herein. In the event that a
Responsible Officer of the Certificate Registrar becomes aware that such an
Individual Certificate or beneficial interest in a Private Global 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
Individual Certificate or beneficial interest in a Private Global Certificate to
an Eligible Investor within fourteen days after notice of such determination and
each Certificateholder by its acceptance of a Certificate authorizes the
Certificate Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding
transfer and exchange, transfers of the Global Certificates shall be limited to
transfers of such Global Certificates in whole, but not in part, to nominees of
the Depository or to a successor of the Depository or such successor's nominee.
(h) 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 other than for transfers to
Institutional Accredited Investors, as provided herein. 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. 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.
(i) Subject to Section 5.02(e), transfers of the [Class R] and
[Class LR] Certificates may be made only in accordance with this Section
5.02(i). The Certificate Registrar shall register the transfer of a [Class R] or
[Class LR] Certificate only if (x) the transferor has advised the Certificate
Registrar in writing that such Certificate is being transferred to a Qualified
Institutional Buyer, an Affiliated Person or an Institutional Accredited
Investor and (y) prior to such transfer the transferee furnishes to the
Certificate Registrar an Investment
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Representation Letter. In addition, the Certificate Registrar may as a condition
of the registration of any such transfer require the transferor to furnish such
other certifications, legal opinions or other information (at the transferor's
expense) as it may reasonably require to confirm that the proposed transfer is
being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Act and other applicable laws.
(j) Neither the Depositor, the Master Servicer, the Trustee nor the
Certificate Registrar are obligated to register or qualify the [Class X-C],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P], [Class R] or [Class LR] Certificates
under the Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of such Certificates
without registration or qualification. Any Certificateholder desiring to affect
such a transfer shall, and does hereby agree to, indemnify the Depositor, the
Master Servicer, the Trustee and the Certificate Registrar, against any loss,
liability or expense that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
(k) No transfer of any [Class J], [Class K], [Class L], [Class M],
[Class N] and [Class O], [Class P], [Class R] or [Class LR] Certificate (each, a
"Restricted Certificate") shall be made to (i) 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
(ii) a collective investment fund in which a Plan is invested, an insurance
company that is using the assets of any insurance company separate account or
general account in which the assets of any such Plan are invested (or which are
deemed pursuant to ERISA or any Similar Law to include assets of Plans) to
acquire any such Restricted Certificate or any other Person acting on behalf of
any Plan or using the assets of any Plan to acquire any such Restricted
Certificate, other than (with respect to transfer of Restricted Certificates
other than the Residual Certificates) an insurance company using the assets of
its general account under circumstances whereby such transfer to such insurance
company would be exempt from the "prohibited transaction" provisions of Sections
406 and 407 of ERISA and Section 4975 of the Code under Sections I and III of
PTCE 95-60, or a substantially similar exemption under Similar Law. Each
prospective transferee of a Restricted Certificate shall either (i) deliver to
the Depositor, the Certificate Registrar and the Trustee, a transfer or
representation letter, substantially in the form of Exhibit D-2 hereto, stating
that the prospective transferee is not a Person referred to in (i) or (ii) above
or (ii) in the event the transferee is such an entity specified in (i) or (ii)
above (except in the case of a Residual Certificate, which may not be
transferred unless the transferee represents it is not such an entity), such
entity shall provide any opinions of counsel, officers' certificates or
agreements as may be required by, and in form and substance satisfactory to, the
Depositor, the Trustee and the Certificate Registrar, to the effect that the
purchase and holding of the Certificates by or on behalf of a Plan will not
constitute or result in a non-exempt prohibited transaction within the meaning
of Sections 406 and 407 of ERISA and Section 4975 of the Code, and will not
subject the Master Servicer, the Special Servicer, the Depositor, the Trustee or
the Certificate Registrar to any obligation or liability. None of the Trustee or
the Certificate Registrar shall register a [Class R] or [Class LR] Certificate
in any Person's name unless such Person has provided the letter referred to in
clause (i) of the preceding sentence. The transferee of a beneficial interest in
a Global Certificate that is a Restricted Certificate shall be deemed to
represent that it is not a
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Plan or a Person acting on behalf of any Plan or using the assets of any Plan to
acquire such interest other than (with respect to transfers of beneficial
interests in Global Certificates which are Restricted Certificates other than
the Residual Certificates) an insurance company using the assets of its general
account under circumstances whereby such transfer to such insurance company
would be exempt from the "prohibited transaction" provisions of Sections 406 and
407 of ERISA and Section 4975 of the Code under Sections I and III of PTCE
95-60, or a substantially similar exemption under Similar Law. Any transfer of a
Restricted Certificate that would violate or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code or Similar Law shall be
deemed absolutely null and void ab initio.
(l) Each Person who has or acquires any Ownership Interest shall be
deemed by the acceptance or acquisition of such Ownership Interest to have
agreed to be bound by the following provisions and the rights of each Person
acquiring any Ownership Interest are expressly subject to the following
provisions:
(i) Each Person acquiring or holding any Ownership Interest shall be
a Permitted Transferee and shall not acquire or hold such Ownership
Interest as agent (including a broker, nominee or other middleman) on
behalf of any Person that is not a Permitted Transferee. Any such Person
shall promptly notify the Certificate Registrar of any change or impending
change in its status (or the status of the beneficial owner of such
Ownership Interest) as a Permitted Transferee. Any acquisition described
in the first sentence of this Section 5.02(l) by a Person who is not a
Permitted Transferee or by a Person who is acting as an agent of a Person
who is not a Permitted Transferee shall be void and of no effect, and the
immediately preceding owner who was a Permitted Transferee shall be
restored to registered and beneficial ownership of the Ownership Interest
as fully as possible.
(ii) No Ownership Interest may be Transferred, and no such Transfer
shall be registered in the Certificate Register, without the express
written consent of the Certificate Registrar, and the Certificate
Registrar shall not recognize the Transfer, and such proposed Transfer
shall not be effective, without such consent with respect thereto. In
connection with any proposed Transfer of any Ownership Interest, the
Certificate Registrar shall, as a condition to such consent, (x) require
delivery to it in form and substance satisfactory to it, and the proposed
transferee shall deliver to the Certificate Registrar and to the proposed
transferor an affidavit in substantially the form attached as Exhibit C-1
(a "Transferee Affidavit") of the proposed transferee (A) that such
proposed transferee is a Permitted Transferee and (B) stating that (i) the
proposed transferee historically has paid its debts as they have come due
and intends to do so in the future, (ii) the proposed transferee
understands that, as the holder of an Ownership Interest, it may incur
liabilities in excess of cash flows generated by the residual interest,
(iii) the proposed transferee intends to pay taxes associated with holding
the Ownership Interest as they become due, (iv) the proposed transferee
will not transfer the Ownership Interest to any Person that does not
provide a Transferee Affidavit or as to which the proposed transferee has
actual knowledge that such Person is not a Permitted Transferee or is
acting as an agent (including a broker, nominee or other middleman) for a
Person that is not a Permitted Transferee, (v) the proposed transferee
will not cause income from the [Class R] or [Class LR] Certificate to be
attributable to a foreign permanent
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establishment or fixed base, within the meaning of an applicable income
tax treaty, of the proposed transferee or any other U.S. Person and (vi)
the proposed transferee expressly agrees to be bound by and to abide by
the provisions of this Section 5.02(l) and (y) other than in connection
with the initial issuance of the [Class R] and [Class LR] Certificates,
require a statement from the proposed transferor substantially in the form
attached as Exhibit C-2 (the "Transferor Letter"), that the proposed
transferor has no actual knowledge that the proposed transferee is not a
Permitted Transferee and has no actual knowledge or reason to know that
the proposed transferee's statements in the preceding clauses (x)(B)(i) or
(iii) are false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by a
proposed transferee under clause (ii) above, if a Responsible Officer of
the Certificate Registrar has actual knowledge that the proposed
transferee is not a Permitted Transferee, no Transfer to such proposed
transferee shall be effected and such proposed Transfer shall not be
registered on the Certificate Register; provided, however, that the
Certificate Registrar shall not be required to conduct any independent
investigation to determine whether a proposed transferee is a Permitted
Transferee.
Neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction or transfer imposed under Article V of this Agreement or under
applicable law with respect to any transfer of any Certificate, or any interest
therein, other than to require delivery of the certification(s) and/or opinions
of counsel described in Article V applicable with respect to changes in
registration of record ownership of Certificates in the Certificate Register.
The Trustee and the Certificate Registrar shall have no liability for transfers,
including transfers made through the book-entry facilities of the Depository or
between or among Depository Participants or Beneficial Owners made in violation
of applicable restrictions.
Upon notice to the Certificate Registrar that there has occurred a
Transfer to any Person that is a Disqualified Organization or an agent thereof
(including a broker, nominee, or middleman) in contravention of the foregoing
restrictions, and in any event not later than 60 days after a request for
information from the transferor of such Ownership Interest, or such agent, the
Certificate Registrar and the Trustee agree to furnish to the IRS and the
transferor of such Ownership Interest or such agent such information necessary
to the application of Section 860E(e) of the Code as may be required by the
Code, including, but not limited to, the present value of the total anticipated
excess inclusions with respect to such [Class R] or [Class LR] Certificate (or
portion thereof) for periods after such Transfer. At the election of the
Certificate Registrar and the Trustee, the Certificate Registrar and the Trustee
may charge a reasonable fee for computing and furnishing such information to the
transferor or to such agent referred to above; provided, however, that such
Persons shall in no event be excused from furnishing such information.
Section 5.03 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 Certificate Registrar such security or indemnity as may be required by it to
save it, the Trustee and the Master Servicer harmless, then, in the absence of
actual knowledge by a Responsible Officer of the Certificate Registrar that such
Certificate has been
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acquired by a bona fide purchaser, the Trustee or the Authenticating Agent shall
execute and authenticate and the Certificate Registrar shall 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 tenor and
Percentage Interest. Upon the issuance of any new Certificate under this Section
5.03, 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
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership of the corresponding interest in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04 Appointment of Paying Agent. The Trustee may appoint a
paying agent for the purpose of making distributions to Certificateholders
pursuant to Section 4.01. The Trustee shall cause such Paying Agent, if other
than the Trustee or the Master Servicer, to execute and deliver to the Master
Servicer and the Trustee an instrument in which such Paying Agent shall agree
with the Master Servicer and the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in trust for the benefit
of the Certificateholders entitled thereto until such sums have been paid to the
Certificateholders or disposed of as otherwise provided herein. The initial
Paying Agent shall be the Trustee. Except for the Trustee, as the initial Paying
Agent, the Paying Agent shall at all times be an entity having a long-term
unsecured debt rating of at least "A+" by [S&P] and "A1" by [Xxxxx'x], or shall
be otherwise acceptable to each Rating Agency.
Section 5.05 Access to Certificateholders' Names and Addresses. (a)
If any Certificateholder (for purposes of this Section 5.05, an "Applicant")
applies in writing to the Certificate Registrar, and such application states
that the Applicant desires to communicate with other Certificateholders, the
Certificate Registrar shall furnish or cause to be furnished to such Applicant a
list of the names and addresses of the Certificateholders as of the most recent
Record Date, at the expense of the Applicant.
(b) Every Certificateholder, by receiving and holding its
Certificate, agrees with the Trustee that the Trustee and the Certificate
Registrar shall not be held accountable in any way by reason of the disclosure
of any information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 5.06 Actions of Certificateholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Certificateholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Certificateholders in person or by agent duly appointed in writing; and
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
when required, to the Master Servicer. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any purpose of
this Agreement and conclusive in favor of the Trustee and the Master Servicer,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder of
any such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
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(c) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder shall bind every Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, or omitted to be done,
by the Trustee or the Master Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
(d) The Trustee or Certificate Registrar may require such additional
proof of any matter referred to in this Section 5.06 as it shall deem necessary.
ARTICLE VI
THE DEPOSITOR, THE SERVICERS AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer. The Depositor, the Master Servicer and the Special Servicer
each shall be liable in accordance herewith only to the extent of the
obligations specifically imposed by this Agreement.
Section 6.02 Merger or Consolidation of the Master Servicer. Subject
to the following paragraph, the Master Servicer will keep in full effect its
existence, rights and good standing as a corporation under the laws of the State
of Delaware or State of California, as applicable and will not jeopardize its
ability to do business in each jurisdiction in which the Mortgaged Properties
securing the Mortgage Loans that it is servicing are located or to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans that it is servicing and to perform its respective duties under
this Agreement.
The Master Servicer, the Special Servicer or the Depositor may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets to any Person, in which case any Person resulting from any
merger or consolidation to which it shall be a party, or any Person succeeding
to its business, shall be the successor of the Master Servicer, the Special
Servicer or the Depositor hereunder, and shall be deemed to have assumed all of
the liabilities of the Master Servicer, the Special Servicer or the Depositor
hereunder, if each of the Rating Agencies has confirmed in writing that such
merger or consolidation or transfer of assets and succession, in and of itself,
will not cause a downgrade, qualification or withdrawal of the then-current
ratings assigned by such Rating Agency to any Class of Certificates.
Section 6.03 Limitation on Liability of the Depositor, the
Applicable Servicer and Others. (a) Neither the Depositor, the Master Servicer
nor the Special Servicer nor any of the directors, officers, employees, members,
managers or agents (including Sub-Servicers) of the Depositor, the Master
Servicer or the Special Servicer shall be under any liability to the Trust Fund,
the Certificateholders or the [_____] B Loan Noteholder for any action taken, or
for refraining from the taking of any action, in good faith pursuant to this
Agreement (including actions taken at the direction of the Directing
Certificateholder), or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or the Special
Servicer, or any member, manager, director, officer, employee or agent
(including Sub-Servicers) of the Depositor, the Master Servicer or the Special
Servicer, against any breach of
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warranties or representations made herein, or against any liability which would
otherwise be imposed by reason of willful misconduct, bad faith, fraud or
negligence (or in the case of the Master Servicer or Special Servicer, by reason
of any specific liability imposed hereunder for a breach of the Servicing
Standard) in the performance of duties or by reason of negligent disregard of
obligations or duties hereunder. The Depositor, the Master Servicer, the Special
Servicer, and any member, manager, director, officer, employee or agent
(including Sub-Servicers) of the Depositor, the Master Servicer or the Special
Servicer may rely in good faith on any document of any kind which, prima facie,
is properly executed and submitted by any appropriate Person respecting any
matters arising hereunder. The Depositor, the Master Servicer, the Special
Servicer and any member, manager, director, officer, employee or agent
(including Sub-Servicers) of the Depositor, the Master Servicer or the Special
Servicer shall be indemnified and held harmless by the Trust Fund out of its
Collection Account (or if such matter relates directly to the Loan Combination,
first out of the Loan Combination Collection Account; provided that such
expenses will first be allocated to the related B Loan, if any, and then will be
allocated to the related Mortgage Loan, and then, if funds therein are
insufficient, out of the Collection Accounts in accordance with Section 3.06.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its respective duties under this Agreement and
in its opinion does not expose it to any expense or liability; provided,
however, that the Depositor, the Master Servicer or the Special Servicer may in
its discretion undertake any action related to its obligations hereunder which
it may deem necessary or desirable with 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 and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund and, in the case of the Loan Combination, first out of amounts
allocated to the related B Loan, if any, out of the Loan Combination Collection
Account.
The terms of this Section 6.03 shall survive the termination of any
party hereto or of this Agreement.
(b) The Directing Certificateholder shall have no liability
whatsoever to the Trust Fund or any Certificateholder (except that if the
Directing Certificateholder is the Controlling Class Representative, the
Directing Certificateholder shall have no liability to any Controlling Class
Certificateholder 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, with respect to Controlling Class Certificateholders,
the Controlling Class Representative shall not be protected against any
liability that 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 or one or
more [_________] B Loan Noteholder over Certificateholders or other [_________]
B Loan Noteholder, and that the Directing Certificateholder may have special
relationships and interests that conflict with those of Holders of some Classes
of the Certificates or other [_________] B Loan Noteholder, that the Directing
Certificateholder may act solely in its own interest (and if the Directing
Certificateholder is the Controlling Class Representative, the interests of the
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Holders of the Controlling Class), that the Directing Certificateholder does not
have any duties to the Holders of any Class of Certificates or other [_________]
B Loan Noteholder (and if the Directing Certificateholder is the Controlling
Class Representative, other than the Controlling Class), that the Directing
Certificateholder that is not the Controlling Class Representative may take
actions that favor its own interest over the interests of the Certificateholders
or other [_________] B Loan Noteholder (and if the Directing Certificateholder
is the Controlling Class Representative, such Directing Certificateholder may
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 that is not the Controlling Class Representative, absent
willful misfeasance, bad faith or negligence, shall not be deemed to have been
negligent or reckless, or to have acted in bad faith or engaged in willful
misfeasance, by reason of its having acted solely in its own interests (and if
the Directing Certificateholder is the Controlling Class Representative, 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 or [_________] B Loan Noteholder may take any action
whatsoever against the Directing Certificateholder or any director, officer,
employee, agent or principal thereof for having so acted.
Section 6.04 Limitation on Resignation of the Master Servicer and
the Special Servicer; Termination of the Master Servicer and the Special
Servicer. (a) The Master Servicer and the Special Servicer may assign their
respective rights and delegate their respective duties and obligations under
this Agreement in connection with the sale or transfer of a substantial portion
of their mortgage servicing or asset management portfolio, provided that: (i)
the purchaser or transferee accepting such assignment and delegation (A) shall
be an established mortgage finance institution, bank or mortgage servicing
institution, organized and doing business under the laws of any state of the
United States or the District of Columbia, authorized under such laws to perform
the duties of a servicer of mortgage loans or a Person resulting from a merger,
consolidation or succession that is permitted under Section 6.02, (B) shall be
acceptable to each Rating Agency as confirmed by a letter from each Rating
Agency delivered to the Trustee that such assignment or delegation will not
cause a downgrade, withdrawal or qualification of the then-current ratings of
the Certificates, and (C) shall execute and deliver to the Trustee an agreement,
in form and substance reasonably satisfactory to the Trustee, which contains an
assumption by such Person of the due and punctual performance and observance of
each covenant and condition to be performed or observed by the Master Servicer
or Special Servicer, as applicable under this Agreement from and after the date
of such agreement; (ii) as confirmed by a letter from each Rating Agency
delivered to the Trustee, each Rating Agency's rating or ratings of the
Certificates in effect immediately prior to such assignment, sale or transfer
will not be qualified, downgraded or withdrawn as a result of such assignment,
sale or transfer; (iii) the Master Servicer or the Special Servicer shall not be
released from its obligations under this Agreement that arose prior to the
effective date of such assignment and delegation under this Section 6.04; (iv)
the Trustee shall have given its written consent thereto; and (v) the rate at
which the Master Servicer Compensation or Special Servicer Compensation, as
applicable (or any component thereof) is calculated shall not exceed the rate
then in effect. Upon acceptance of such assignment and delegation, the purchaser
or transferee shall be successor Master Servicer or Special Servicer, as
applicable, hereunder.
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(b) Except as provided in Section 6.02 and this Section 6.04, the
Master Servicer and the Special Servicer shall not resign from its respective
obligations and duties hereby imposed on it except upon determination that such
duties hereunder are no longer permissible under applicable law. Any such
determination permitting the resignation of the Master Servicer or the Special
Servicer, as applicable, shall be evidenced by an Opinion of Counsel (obtained
at the resigning Master Servicer's or Special Servicer's expense) to such effect
delivered to the Trustee.
(c) The Trustee shall be permitted to remove the Master Servicer or
the Special Servicer upon the Master Servicer Event of Default or a Special
Servicer Event of Default, as applicable. Without limiting the generality of the
succeeding paragraph, no such removal shall be effective unless and until (i)
the Master Servicer or the Special Servicer has been paid any unpaid Servicer
Compensation or Special Servicer Compensation, as applicable, unreimbursed
Advances (including Advance Interest Amounts thereon to which it is entitled)
and all other amounts to which the Master Servicer or the Special Servicer is
entitled hereunder to the extent such amounts accrue prior to such effective
date and (ii) with respect to a resignation by the Master Servicer, successor
Master Servicer has deposited into the Investment Accounts from which amounts
were withdrawn to reimburse the terminated Master Servicer, an amount equal to
the amounts so withdrawn, to the extent such amounts would not have been
permitted to be withdrawn except pursuant to this paragraph, in which case
successor Master Servicer shall, immediately upon deposit, have the same right
of reimbursement or payment as the terminated Master Servicer had immediately
prior to its termination without regard to the operation of this paragraph.
No resignation or removal of the Master Servicer or the Special
Servicer as contemplated by the preceding paragraphs shall become effective
until the Trustee or a successor Master Servicer or Special Servicer shall have
assumed the Master Servicer's or the Special Servicer's responsibilities,
duties, liabilities and obligations hereunder. If no successor Master Servicer
or Special Servicer can be obtained to perform such obligations for the same
compensation to which the terminated Master Servicer or Special Servicer would
have been entitled, additional amounts payable to such successor Master Servicer
or Special Servicer shall be treated as Realized Losses.
Section 6.05 Rights of the Depositor and the Trustee in Respect of
the Applicable Servicer and the Special Servicer. The Master Servicer and the
Special Servicer shall afford the Depositor, the Underwriters, the Trustee and
the Rating Agencies, upon reasonable notice, during normal business hours access
to all records maintained by it in respect of its rights and obligations
hereunder and access to its officers responsible for such obligations. Upon
request, the Master Servicer and/or the Special Servicer, as applicable, shall
furnish to the Depositor, the Master Servicer, Special Servicer, the Trustee its
most recent financial statements (or, with respect to the Master Servicer, those
of its ultimate parent) and such other non-proprietary information as the Master
Servicer or Special Servicer, as the case may be, shall determine in its sole
and absolute discretion as it possesses, which is relevant to the performance of
its duties hereunder and which it is not prohibited by applicable law or
contract from disclosing. The Depositor may, but is not obligated to, enforce
the obligations of the Master Servicer or the Special Servicer hereunder which
are in default and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of such Person hereunder or
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exercise its rights hereunder, provided that the Master Servicer and the Special
Servicer shall not be relieved of any of its obligations hereunder by virtue of
such performance by the Depositor or its designee. In the event the Depositor or
its designee undertakes any such action, it will be reimbursed by the Trust Fund
from the Collection Account (or with respect to the Loan Combination, to the
extent such reimbursement is allocable to such Loan Combination Collection
Account, as applicable), as provided in Section 3.06 and Section 6.03(a) hereof
to the extent not recoverable from the Master Servicer or Special Servicer, as
applicable. Neither the Depositor nor the Trustee and neither the Master
Servicer, with respect to the Special Servicer, or the Special Servicer, with
respect to the Master Servicer, shall have any responsibility or liability for
any action or failure to act by the Master Servicer or the Special Servicer and
neither such Person is obligated to monitor or supervise the performance of the
Master Servicer or the Special Servicer under this Agreement or otherwise.
Neither the Master Servicer nor the Special Servicer shall be under any
obligation to disclose confidential or proprietary information pursuant to this
Section.
Section 6.06 The Master Servicer or Special Servicer as Owners of a
Certificate. The Master Servicer or an Affiliate of the Master Servicer, or the
Special Servicer or an Affiliate of the Special Servicer, may become the Holder
(or with respect to a Global Certificate, Beneficial Owner) of any Certificate
with the same rights it would have if it were not the Master Servicer or the
Special Servicer or an Affiliate thereof. If, at any time during which the
Master Servicer or the Special Servicer or an Affiliate of the Master Servicer
or the Special Servicer is the Holder or Beneficial Owner of any Certificate,
the Master Servicer or the Special Servicer proposes to take action (including
for this purpose, omitting to take action) that (i) is not expressly prohibited
by the terms hereof and would not, in the Master Servicer's or the Special
Servicer's good faith judgment, violate the Servicing Standard, and (ii) if
taken, might nonetheless, in the Master Servicer's or the Special Servicer's
good faith judgment, be considered by other Persons to violate the Servicing
Standard, the Master Servicer or the Special Servicer may but need not seek the
approval of the Certificateholders to such action by delivering to the Trustee a
written notice that (i) states that it is delivered pursuant to this Section
6.06, (ii) identifies the Percentage Interest in each Class of Certificates
beneficially owned by the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer, and (iii) describes in
reasonable detail the action that the Master Servicer or the Special Servicer
proposes to take. The Trustee, upon receipt of such notice, shall forward it to
the Certificateholders (other than Master Servicer and its Affiliates or the
Special Servicer and its Affiliates, as appropriate) together with such
instructions for response as the Trustee shall reasonably determine. If at any
time Certificateholders holding a majority of the Voting Rights of all
Certificateholders and the Controlling Class Representative (calculated without
regard to the Certificates beneficially owned by the Master Servicer or its
Affiliates or the Special Servicer or its Affiliates, as applicable) shall have
consented in writing to the proposal described in the written notice, and if the
Master Servicer or the Special Servicer shall act as proposed in the written
notice, such action shall be deemed to comply with the Servicing Standard. The
Trustee shall be entitled to reimbursement from the Master Servicer or the
Special Servicer, as applicable, of the reasonable expenses of the Trustee
incurred pursuant to this paragraph. It is not the intent of the foregoing
provision that the Master Servicer or the Special Servicer be permitted to
invoke the procedure set forth herein with respect to routine servicing matters
arising hereunder, except in the case of unusual circumstances.
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ARTICLE VII
DEFAULT
Section 7.01 Events of Default. (a) "Servicer Event of Default,"
wherever used herein, means any one of the following events:
(i) (A) any failure by the Master Servicer to make any deposit
required to its Collection Account on the day and by the time such deposit
was first 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
Master Servicer to deposit into, or remit to the Trustee for deposit into,
any Distribution Account any amount required to be so deposited or
remitted (including, without limitation, any required P&I Advance, unless
the Master Servicer determines such P&I Advance is a Nonrecoverable
Advance), which failure is not remedied (with interest as set forth in
Section 3.06(d)) by 11:00 a.m. (New York City time) on the relevant
Distribution Date or any failure by the Master Servicer to remit to any
holder of the [_____] B Loan, as and when required by this Agreement or
any related Co-Lender Agreement, any amount required to be so remitted;
(ii) any failure on the part of the Master Servicer duly to observe
or perform in any material respect any of its other covenants or
obligations contained in this Agreement, which failure continues
unremedied for a period of 30 days (15 days in the case of the Master
Servicer's failure to make a Property Advance, 45 days in the case of a
failure to pay the premium for any insurance policy required to be
force-placed by the Master Servicer or 5 days in the case of a failure to
deliver the reports required by Section 3.14, Section 3.15 and Section
3.22(f) of this Agreement in any year that a report on Form 10-K is
required to be filed with the Commission) after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Master Servicer, 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% or by the affected [_____] B Loan Noteholder; provided,
however, if such failure (other than the failure to deliver the reports
required by Section 3.13 or Section 3.14 of this Agreement in any year
that a report on Form 10-K is required to be filed with the Commission) is
capable of being cured and the Master Servicer is diligently pursuing such
cure, such 30- or 45-day period, as applicable, will be extended an
additional 30 days;
(iii) any breach on the part of the Master Servicer of any
representation or warranty contained in Section 2.04(a) which materially
and adversely affects the interests of any Class of Certificateholders or
the [_____] B Loan Noteholder and which continues unremedied for a period
of 30 days after the date on which notice of such breach, requiring the
same to be remedied, shall have been given to the Master Servicer by the
Depositor or the Trustee, or to the Master Servicer, the Special Servicer,
the Depositor and the Trustee by the Holders of Certificates of any Class
evidencing, as to such Class, Percentage Interests aggregating not less
than 25% or by the affected [_____] B Loan Noteholder; provided, however,
if such breach is capable of being cured and the Master Servicer is
diligently pursuing such cure, such 30-day period will be extended an
additional 30 days;
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(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer and such decree or order shall have remained in force
undischarged, undismissed or unstayed for a period of 60 days;
(v) the Master 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 Master Servicer
or of or relating to all or substantially all of its property;
(vi) the Master 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;
(vii) the Master Servicer has been removed from [S&P]'s approved
master servicer list and any of the ratings assigned to the Certificates
have been qualified, downgraded or withdrawn in connection with such
removal;
(viii) a servicing officer of the Master Servicer obtains actual
knowledge that [Xxxxx'x] has (i) qualified, downgraded or withdrawn its
rating or ratings of one or more Classes of Certificates, or (ii) has
placed one or more Classes of Certificates on "watch status" in
contemplation of a ratings downgrade or withdrawal (and such "watch
status" placement shall not have been withdrawn by [Xxxxx'x] within 60
days of the date such servicing officer obtained such actual knowledge)
and, in the case of either of clauses (i) or (ii), cited servicing
concerns with the Master Servicer as the sole or material factor in such
rating action; or
(ix) [the Master Servicer or Special Servicer, or any Primary
Servicer or Sub-Servicer appointed by the Master Servicer or Special
Servicer, shall fail to deliver the items required to be delivered by such
servicer under Item 1122 and 1123 of Regulation AB by the time provided
for in this Agreement.]
then, and in each and every such case, so long as the Master Servicer Event of
Default shall not have been remedied, the Trustee may, (a) and at the written
direction of the Holders of at least 51% of the aggregate Voting Rights of all
Certificates shall terminate all of the rights and obligations of the Master
Servicer (other than the rights to indemnification provided in Section 6.03 and
compensation provided in Section 3.12). In the case of clauses (vii), (viii) and
(ix) above, the Trustee shall be required to notify Certificateholders of the
Master Servicer Event of Default and request whether such Certificateholders
and, if applicable, the [_____] B Loan Noteholder favor such termination.
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In the event that the Master Servicer is also the Special Servicer
and the Master Servicer is terminated as provided in this Section 7.01, then the
Master Servicer shall also be terminated as Special Servicer.
(b) "Special Servicer Event of Default," wherever used herein, means
any one of the following events:
(i) any failure by the Special Servicer to deposit into the REO
Account, or to remit to the Master Servicer for deposit into, the related
Collection Account (or, in the case of the Loan Combination, the Loan
Combination Collection 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; provided, however, that the failure of
the Special Servicer to remit such amount to the Master Servicer shall not
be an Event of Default if such failure is remedied within one Business Day
and if the Special Servicer has compensated the Master Servicer for any
loss of income on such amount suffered by the Master Servicer due to and
caused by the late remittance of the Special Servicer and reimburse the
Trust for any resulting advance interest due to the Master Servicer; or
(ii) any failure on the part of the Special Servicer duly to observe
or perform in any material respect any of its other covenants or
obligations contained in this Agreement, which failure continues
unremedied for a period of [30] days ([45] days in the case of a failure
to pay the premium for any insurance policy required to be force-placed by
the Special Servicer or [5] days in the case of a failure to deliver the
reports required by Section 3.14, Section 3.15 and Section 3.22(g) of this
Agreement in any year that a report on Form 10-K is required to be filed
with the Commission after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Special Servicer, 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% or by the affected [_____] B Loan Noteholder; provided, however,
if such failure (other than the failure to deliver the reports required by
Section 3.13 or Section 3.14 of this Agreement in any year that a report
on Form 10-K is required to be filed with the Commission) is capable of
being cured and the Special Servicer is diligently pursuing such cure,
such [30]- or [45-day period, as applicable, will be extended an
additional [30] days;
(iii) any breach on the part of the Special Servicer of any
representation or warranty contained in Section 2.04(b) which materially
and adversely affects the interests of any Class of Certificateholders or
the [_____] B Loan Noteholder 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 Special Servicer by the
Depositor or the Trustee, or to the Master Servicer, the Special Servicer,
the Depositor and the Trustee by the Holders of Certificates of any Class
evidencing, as to such Class, Percentage Interests aggregating not less
than 25% or by the affected [_____] B Loan Noteholder; provided, however,
if such breach is capable of being cured and the Special Servicer is
diligently pursuing such cure, such [30-day] period will be extended an
additional [30] days;
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(iv) 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 Special Servicer and such decree or order shall have remained in force
undischarged, undismissed or unstayed for a period of [60] days;
(v) 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 Special Servicer
or of or relating to all or substantially all of its property;
(vi) 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;
(vii) the Special Servicer has been removed from [S&P]'s approved
special servicer list, and any of the ratings assigned to the Certificates
have been qualified, downgraded or withdrawn in connection with such
removal, whichever is earlier; or
(viii) a servicing officer of the Special Servicer obtains actual
knowledge that [Xxxxx'x] has (i) qualified, downgraded or withdrawn its
rating or ratings of one or more Classes of Certificates, or (ii) has
placed one or more Classes of Certificates on "watch status" in
contemplation of a ratings downgrade or withdrawal (and such "watch
status" placement shall not have been withdrawn by [Xxxxx'x] within [60]
days of the date such servicing officer obtained such actual knowledge)
and, in the case of either of clauses (i) or (ii), cited servicing
concerns with the Special Servicer as the sole or material factor in such
rating action.
then, and in each and every such case, so long as a Special Servicer Event of
Default shall not have been remedied, the Trustee may, (a) and at the written
direction of the Holders of at least 51% of the aggregate Voting Rights of all
Certificates shall terminate all of the rights and obligations of the Special
Servicer (other than the rights to indemnification provided in Section 6.03(a)
and compensation provided in Section 3.12(c)). In the case of clauses (vii),
(viii) and (ix) above, the Trustee shall be required to notify
Certificateholders and [_____] B Loan Noteholder of such Special Servicer Event
of Default and request whether such Certificateholders and, if applicable, the
[_____] B Loan Noteholder, favor such termination.
(c) In the event that the Master Servicer or the Special Servicer is
terminated pursuant to this Section 7.01, the Trustee (the "Terminating Party")
shall, by notice in writing to the Master Servicer or the Special Servicer, as
the case may be (the "Terminated Party"), terminate all of its rights and
obligations under this Agreement and in and to the Mortgage Loans and the
proceeds thereof, other than any rights the Terminated Party may have hereunder
as a Certificateholder and any rights or obligations that accrued prior to the
date of such termination
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(including the right to receive all amounts accrued or owing to it under this
Agreement, plus interest at the Advance Rate on such amounts until received to
the extent such amounts bear interest as provided in this Agreement, with
respect to periods prior to the date of such termination and the right to the
benefits of Section 6.03 notwithstanding any such termination, and with respect
to (i) the Master Servicer (or its third party assignee) it shall also be
entitled to the Excess Servicing Strip and (ii) the Special Servicer, shall also
be entitled to receive any Workout Fee subsequent to its termination as Special
Servicer, pursuant to Section 3.12(c) and any successor Special Servicer shall
not be entitled to such Workout Fee received by the terminated Special
Servicer). On or after the receipt by the Terminated Party of such written
notice, all of its authority and power under this Agreement, whether with
respect to the Certificates (except that the Terminated Party shall retain its
rights as a Certificateholder in the event and to the extent that it is a
Certificateholder), the Mortgage Loans, the [_____] B Loan, or otherwise, shall
pass to and be vested in the Terminating Party pursuant to and under this
Section and, without limitation, the Terminating Party is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Terminated Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer and the Special Servicer
each agree in the event it is terminated pursuant to this Section 7.01 to
promptly (and in any event no later than ten Business Days subsequent to such
notice) provide, at its own expense, the Terminating Party with all documents
and records requested by the Terminating Party to enable the Terminating Party
to assume its functions hereunder, and to cooperate with the Terminating Party
and the successor to its responsibilities hereunder in effecting the termination
of its responsibilities and rights hereunder, including, without limitation, the
transfer to successor Master Servicer or Special Servicer or the Terminating
Party, as applicable, for administration by it of all cash amounts which shall
at the time be or should have been credited by the Master Servicer or the
Special Servicer to its Collection Account, the Loan Combination Collection
Account, any REO Account, any Excess Liquidation Proceeds Account, Lock-Box
Account or Cash Collateral Account or which shall thereafter be received with
respect to the Mortgage Loans, and shall promptly provide the Terminating Party
or such successor Master Servicer or successor Special Servicer (which may
include the Trustee) all documents and records reasonably requested by it, such
documents and records to be provided in such form as the Terminating Party or
such successor Master Servicer or Special Servicer shall reasonably request
(including electromagnetic form), to enable it to assume the Master Servicer's
or Special Servicer's function hereunder. All reasonable costs and expenses of
the Terminating Party or successor Master Servicer or successor Special Servicer
incurred in connection with transferring the Mortgage Files to successor Master
Servicer or Special Servicer and amending this Agreement to reflect such
succession as successor Master Servicer or successor Special Servicer pursuant
to this Section 7.01 shall be paid by the predecessor Servicer or the Special
Servicer, as applicable, upon presentation of reasonable documentation of such
costs and expenses. If the predecessor Servicer or Special Servicer (as the case
may be) has not reimbursed the Terminating Party or successor Master Servicer or
Special Servicer for such expenses within 90 days after the presentation of
reasonable documentation, such expense shall be reimbursed by the Trust Fund;
provided that the Terminated Party shall not thereby be relieved of its
liability for such expenses. If and to the extent that the Terminated Party has
not reimbursed such costs and expenses, the
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Terminating Party shall have an affirmative obligation to take all reasonable
actions to collect such expenses on behalf of the Trust Fund.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Master Servicer or the Special Servicer receives a notice of
termination pursuant to Section 7.01, the Terminating Party (subject to Sections
7.01(c)) shall be its successor in all respects in its capacity as the Master
Servicer or Special Servicer under this Agreement and the transactions set forth
or provided for herein and, except as provided herein, shall be subject to all
the responsibilities, duties, limitations on liability and liabilities relating
thereto and arising thereafter placed on the Master Servicer or Special Servicer
by the terms and provisions hereof, provided, however, that (i) the Terminating
Party shall have no responsibilities, duties, liabilities or obligations with
respect to any act or omission of the Master Servicer or Special Servicer and
(ii) any failure to perform, or delay in performing, such duties or
responsibilities caused by the Terminated Party's failure to provide, or delay
in providing, records, tapes, disks, information or monies shall not be
considered a default by such successor hereunder. The Trustee, as successor
Master Servicer or successor Special Servicer, shall be indemnified to the full
extent provided to the Master Servicer or Special Servicer, as applicable, under
this Agreement prior to the Master Servicer's or the Special Servicer's
termination. The appointment of a successor Master Servicer or successor Special
Servicer shall not affect any liability of the predecessor Servicer or Special
Servicer which may have arisen prior to its termination as the Master Servicer
or Special Servicer. The Terminating Party shall not be liable for any of the
representations and warranties of the Master Servicer or Special Servicer herein
or in any related document or agreement, for any acts or omissions of the
predecessor Servicer or predecessor Special Servicer or for any losses incurred
in respect of any Permitted Investment by the Master Servicer pursuant to
Section 3.07 hereunder nor shall the Trustee be required to purchase any
Mortgage Loan or the [_____] B Loan hereunder. As compensation therefor, the
Terminating Party as successor Master Servicer or successor Special Servicer
shall be entitled to the Servicing Compensation or Special Servicing
Compensation, as applicable, and all funds relating to the Mortgage Loans or the
[_____] B Loan that accrue after the date of the Terminating Party's succession
to which such predecessor Servicer or Special Servicer would have been entitled
if such predecessor Servicer or Special Servicer, as applicable, had continued
to act hereunder. In the event any Advances made by the Master Servicer or the
Trustee shall at any time be outstanding, or any amounts of interest thereon
shall be accrued and unpaid, all amounts available to repay Advances and
interest hereunder shall be applied entirely to the Advances made by the Trustee
(and the accrued and unpaid interest thereon), until such Advances and interest
shall have been repaid in full. Notwithstanding the above, the Trustee may, if
it shall be unwilling to so act, or shall (i) if it is unable to so act, (ii) if
the Holders of Certificates entitled to at least 25% of the aggregate Voting
Rights or the affected [_____] B Loan Noteholder so request in writing to the
Trustee or if the Trustee is not an "approved" servicer by any of the Rating
Agencies for mortgage pools similar to the Trust Fund, promptly appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution the appointment of which will not result in a
downgrade, qualification or withdrawal of the then-current rating or ratings
assigned to any Class of Certificates, evidenced in writing by each Rating
Agency, as the successor to the Master Servicer or Special Servicer, as
applicable, hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer or Special
Servicer hereunder. No appointment of a successor to the Master Servicer or
Special Servicer hereunder shall be effective until the assumption by such
successor of all the Master Servicer's or Special Servicer's
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responsibilities, duties and liabilities hereunder. Pending appointment of a
successor to the Master Servicer (or the Special Servicer if the Special
Servicer is also the Master Servicer) hereunder, unless the Trustee shall be
prohibited by law from so acting, the Trustee shall act in such capacity as
hereinabove provided. Pending the appointment of a successor to the Special
Servicer, the Trustee shall act in such capacity. In connection with such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans, [_____] B Loan, or otherwise as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of that
permitted to the Terminated Party hereunder, provided, further, that if no
successor to the Terminated Party can be obtained to perform the obligations of
such Terminated Party hereunder after consultation with the Controlling Class
Representative or if such default relates solely to the Loan Combination, the
Directing Certificateholder, additional amounts shall be paid to such successor
and such amounts in excess of that permitted the Terminated Party shall be
treated as Realized Losses. The Depositor, the Trustee, the Master Servicer or
Special Servicer and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
Section 7.03 Notification to Certificateholders and Other Persons.
(a) Upon any termination pursuant to Section 7.01 above or appointment of a
successor to the Master Servicer or the Special Servicer, the Trustee shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register, to each Rating Agency and to
the [_____] B Loan Noteholder at its address appearing in the [_____] B Loan
Noteholder Register.
(b) Within [30] days after the occurrence of any Event of Default of
which a Responsible Officer of the Trustee has actual knowledge, the Trustee
shall transmit by mail to all Holders of Certificates, each Rating Agency, the
[_____] B Loan Noteholder notice of such Event of Default, unless such Event of
Default shall have been cured or waived.
Section 7.04 Other Remedies of Trustee. During the continuance of
any Servicer Event of Default or a Special Servicer Event of Default, so long as
the Master Servicer Event of Default or Special Servicer Event of Default, if
applicable, shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right, in its own name as Trustee of
an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders and,
in the case of the [_____] B Loan, of the [_____] B Loan Noteholder (including
the institution and prosecution of all judicial, administrative and other
proceedings and the filing of proofs of claim and debt in connection therewith).
In such event, the legal fees, expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund and, in the case of the Loan Combination first of the related B Loan
Noteholder, if any, and second, to the extent such expense remains unpaid, of
the Trust Fund on a pro rata basis based on the Mortgage Loan's Stated Principal
Balance. Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Servicer Event of Default or
Special Servicer Event of Default, if applicable.
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Section 7.05 Waiver of Past Events of Default; Termination. The
Holders of Certificates evidencing not less than 66-2/3% of the aggregate Voting
Rights of the Certificates may, together with each affected [_____] B Loan
Noteholder (to the extent they are adversely affected by such Event of Default),
on behalf of all Holders of Certificates may waive any default by the Master
Servicer or Special Servicer in the performance of its obligations hereunder and
its consequences, except a default in making any required deposits (including,
with respect to the Master Servicer, P&I Advances) to or payments from its
Collection Account, the Loan Combination Collection Account or the Lower-Tier
Distribution Account or in remitting payments as received, in each case in
accordance with this Agreement. Upon any such waiver of a past default, such
default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 7.06 Trustee as Maker of Advances. In the event that any
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 of the Event of Default resulting from such failure by
the Master Servicer with respect to Property Advances to the extent a
Responsible Officer of the Trustee has actual knowledge of such failure with
respect to such Property Advances and (y) by 12:00 noon (New York City time) on
the related Distribution Date with respect to P&I Advances pursuant to the
Trustee's notice of failure pursuant to Section 4.07(a) unless the Trustee has
received notice that such failure has been cured by 11:00 a.m. on such
Distribution Date. With respect to any such Advance made by the Trustee, the
Trustee shall succeed to all of the Master Servicer's rights with respect to
Advances hereunder, including, without limitation, the Master Servicer's rights
of reimbursement and interest on each Advance at the Advance Rate, and rights to
determine that a proposed Advance is a Nonrecoverable P&I Advance or Property
Advance, as the case may be (without regard to any impairment of any such rights
of reimbursement caused by the Master Servicer's default in its obligations
hereunder); provided, however, that if Advances made by the Trustee and the
Master 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 Master
Servicer for such Advances. The Trustee shall be entitled to conclusively rely
on any notice given with respect to a Nonrecoverable Advance or any
determination of nonrecoverability in connection therewith by the Master
Servicer hereunder.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee. (a) The Trustee undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement and no permissive right of the Trustee shall be construed as a duty.
During the continuance of an Event of Default of which a Responsible Officer of
the Trustee has actual knowledge, the Trustee, subject to the provisions of
Sections 7.02 and 7.05 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 such person's own affairs.
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(b) The Trustee, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform on their face to the requirements of this Agreement; provided, however,
that, the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument provided to it hereunder. If any such instrument is found not
to conform on its face to the requirements of this Agreement in a material
manner, the Trustee shall request the provider of such instrument to have the
instrument corrected, and if the instrument is not corrected to the Trustee's
reasonable satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
(c) Neither the Trustee nor any of its officers, directors,
employees, agents or "control" persons within the meaning of the Act shall have
any liability arising out of or in connection with this Agreement, provided,
that, subject to Section 8.02, no provision of this Agreement shall be construed
to relieve the Trustee, or any such person, from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct or its
own bad faith; and provided, further, that:
(i) The Trustee's duties and obligations 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 resolutions, certificates,
statements, reports, opinions, documents, orders or other instruments
furnished to the Trustee that conform on their face to the requirements of
this Agreement to the extent set forth herein without responsibility for
investigating the contents thereof;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to
greater than a majority of the Percentage Interests (or such other
percentage as is specified herein) of each affected Class, or of the
aggregate Voting Rights of the Certificates, 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;
(iv) Neither the Trustee nor any of its directors, officers,
employees, agents or control persons shall be responsible for any act or
omission of any Custodian, Paying Agent or Certificate Registrar that is
not an Affiliate of the Trustee and that is selected other than by the
Trustee, performed or omitted in compliance with any custodial or other
agreement, or any act or omission of the Master Servicer, Special
Servicer, the Depositor
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or any other Person, including, without limitation, in connection with
actions taken pursuant to this Agreement;
(v) The Trustee shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its
respective duties as Trustee in accordance with this Agreement (and, if it
does, all legal expenses and costs of such action shall be expenses and
costs of the Trust Fund and, in the case of the Loan Combination, first of
the related B Loan Noteholder, if any, and second, to the extent such
expense remains unpaid, of the Trust Fund; and
(vi) The Trustee shall not be charged with knowledge of any act,
failure to act or breach of any Person upon the occurrence of which the
Trustee may be required to act, unless a Responsible Officer of the
Trustee obtains actual knowledge of such failure. The Trustee shall not be
deemed to have actual knowledge of the Master Servicer's or the Special
Servicer's failure to provide scheduled reports, certificates and
statements when and as required to be delivered to the Trustee pursuant to
this Agreement.
None of the provisions contained in this Agreement shall require
either the Trustee, in its capacity as Trustee to expend or risk its own funds,
or otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if in the opinion
of the Trustee the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of the obligations of
the Master Servicer or the Special Servicer under this Agreement, except during
such time, if any, as the Trustee shall be the successor to, and be vested with
the rights, duties, powers and privileges of, the Master Servicer or the Special
Servicer in accordance with the terms of this Agreement. The Trustee shall not
be required to post any surety or bond of any kind in connection with its
performance of its obligations under this Agreement and the Trustee shall not be
liable for any loss on any investment of funds pursuant to this Agreement.
Notwithstanding any other provision hereof, however, whenever acting as or
instead of the Master Servicer or Special Servicer hereunder or the Trustee
shall comply with the Servicing Standard.
Section 8.02 Certain Matters Affecting the Trustee. (a) Except as
otherwise provided in Section 8.01:
(i) The Trustee may request and/or 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 and
the Trustee shall not have responsibility to ascertain or confirm the
genuineness of any such party or parties;
(ii) The Trustee may consult with counsel and 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 with such Opinion of Counsel;
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(iii) (A) The Trustee shall not be under any obligation to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby, provided that nothing contained herein
shall relieve the Trustee of the obligations, upon the occurrence of an
Event of Default (which has not been cured or waived) of which a
Responsible Officer of the Trustee has actual knowledge, 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 person would
exercise or use under the circumstances in the conduct of such person's
own affairs; and (B) the right of the Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act;
(iv) Neither the Trustee nor any of its directors, officers,
employees, Affiliates, agents or "control" persons within the meaning of
the Act shall be personally liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by the Trustee to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document, unless requested in writing to do so by
Holders of Certificates entitled to at least 25% (or such other percentage
as is specified herein) of the Percentage Interests of any affected Class;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action. The reasonable expense of every such investigation shall be paid
by the Master Servicer or the Special Servicer if an Event of Default
shall have occurred and be continuing relating to the Master Servicer, or
the Special Servicer, respectively, and otherwise by the
Certificateholders requesting the investigation; and
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys but shall not be relieved of the obligations hereunder.
(b) Following the Startup Day, the Trustee shall not, except as
expressly required by any provision of this Agreement, accept any contribution
of assets to the Trust Fund unless the Trustee shall have received an Opinion of
Counsel (the costs of obtaining such opinion to be borne by the Person
requesting such contribution) to the effect that the inclusion of such assets in
the Trust Fund will not cause the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC, or the Grantor Trust to fail to
qualify as a grantor trust, at any time that any Certificates are outstanding,
or subject the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to any
tax under the REMIC Provisions or other
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applicable provisions of federal, state and local law or ordinances, or cause
the Grantor Trust not to be treated as a grantor trust.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
The Trustee shall not have a duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the repurchase of
any Mortgage Loan by any Mortgage Loan Seller pursuant to this Agreement or the
eligibility of any Mortgage Loan for purposes of this Agreement.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall not be taken as the
statements of the Trustee, the Master Servicer, or the Special Servicer and the
Trustee, the Master Servicer and the Special Servicer assume no responsibility
for their correctness. The Trustee, the Master Servicer and the Special Servicer
make no representations or warranties as to the validity or sufficiency of this
Agreement, of the Certificates or any prospectus used to offer the Certificates
for sale or the validity, enforceability or sufficiency of any Mortgage Loan, or
related document. The Trustee shall not at any time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Mortgage, any Mortgage Loan, or the perfection and priority of any Mortgage
or the maintenance of any such perfection and priority, or for or with respect
to the sufficiency of the Trust Fund or its ability to generate the payments to
be distributed to Certificateholders under this Agreement. Without limiting the
foregoing, the Trustee shall not be liable or responsible for: (i) the
existence, condition and ownership of any Mortgaged Property; (ii) the existence
of any hazard or other insurance thereon (other than if the Trustee shall assume
the duties of the Master Servicer or the Special Servicer pursuant to Section
7.02) or the enforceability thereof; (iii) the existence of any Mortgage Loan or
the contents of the related Mortgage File on any computer or other record
thereof (other than if the Trustee shall assume the duties of the Master
Servicer or the Special Servicer pursuant to Section 7.02); (iv) the validity of
the assignment of any Mortgage Loan to the Trust Fund or of any intervening
assignment; (v) the completeness of any Mortgage File; the performance or
enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Master Servicer or the Special Servicer pursuant to Section 7.02);
(vi) the compliance by the Depositor, the Master Servicer or the Special
Servicer with any warranty or representation made under this Agreement or in any
related document or the accuracy of any such warranty or representation prior to
the Trustee's receipt of notice or other discovery of any non-compliance
therewith or any breach thereof; (vii) any investment of monies by or at the
direction of the Master Servicer or any loss resulting therefrom, the acts or
omissions of any of the Depositor, the Master Servicer or the Special Servicer
(other than if the Trustee shall assume the duties of the Master Servicer or
Special Servicer pursuant to Section 7.02) or any Sub-Servicer or any Borrower;
any action of the Master Servicer or Special Servicer (other than if the Trustee
shall assume the duties of the Master Servicer or Special Servicer pursuant to
Section 7.02) or any Sub-Servicer taken in the name of the Trustee, except to
the extent such action is taken at the express written direction of the Trustee;
(viii) the failure of the Master Servicer or the Special Servicer or any
Sub-Servicer to
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act or perform any duties required of them on behalf of the Trust Fund or the
Trustee hereunder; or (ix) any action by or omission of the Trustee taken at the
instruction of the Master Servicer or the Special Servicer (other than if the
Trustee shall assume the duties of the Master Servicer or the Special Servicer
pursuant to Section 7.02) unless the taking of such action is not permitted by
the express terms of this Agreement; provided, however, that the foregoing shall
not relieve the Trustee of its obligation to perform its duties as specifically
set forth in this Agreement. The Trustee shall not be accountable for the use or
application by the Depositor, the Master Servicer or the Special Servicer of any
of the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor, the Master Servicer or the
Special Servicer in respect of the assignment of the Mortgage Loans or deposited
in or withdrawn from the Collection Account, the Loan Combination Collection
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Grantor Trust Distribution Account, the Lock-Box Account, the Cash
Collateral Account, the Reserve Accounts, the Interest Reserve Account, any REO
Account or any Excess Liquidation Proceeds Account or any other account
maintained by or on behalf of the Master Servicer or the Special Servicer, other
than any funds held by the Trustee. The Trustee shall not have any
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder (unless the Trustee shall have
become successor Master Servicer) or to record this Agreement. In making any
calculation hereunder which includes as a component thereof the payment or
distribution of interest for a stated period at a stated rate "to the extent
permitted by applicable law," the Trustee shall assume that such payment is so
permitted unless a Responsible Officer of the Trustee has actual knowledge, or
receives an Opinion of Counsel (at the expense of the Person asserting the
impermissibility) to the effect, that such payment is not permitted by
applicable law. The Depositor is not obligated to monitor or supervise the
performance of the Trustee under this Agreement or otherwise.
Section 8.04 Trustee May Own Certificates. The Trustee and any agent
of the Trustee in its individual capacity or any other capacity may become the
owner or pledgee of Certificates, and may deal with the Depositor, the Master
Servicer, the Special Servicer, the Initial Purchaser and the Underwriters in
banking transactions, with the same rights it would have if it were not Trustee
or such agent, as the case may be.
Section 8.05 Payment of Trustee's Fees and Expenses;
Indemnification. (a) On each Distribution Date, prior to the distribution of
amounts to the Certificateholders, the Trustee shall be entitled to pay itself
the Trustee Fee as reasonable compensation from amounts remitted to the
Lower-Tier Distribution Account (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) for all
services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties of the Trustee
hereunder at the Trustee Fee Rate.
(b) In the event that the Trustee assumes the servicing
responsibilities of the Master Servicer or the Special Servicer hereunder
pursuant to or otherwise arising from the resignation or removal of the Master
Servicer or the Special Servicer, the Trustee shall be entitled to the
compensation to which the Master Servicer or the Special Servicer, as the case
may be, would have been entitled (other than the rights of the Special Servicer
to receive any Workout Fee specified in Section 3.12(c) in the event that the
Special Servicer is terminated).
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(c) The Trustee shall be paid or reimbursed by the Trust Fund upon
its request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee pursuant to and in accordance with any of the provisions of
this Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ),
which, to the extent not previously paid pursuant to Section 3.06(d), the
Trustee will be entitled to withdraw from the Distribution Accounts prior to the
distribution to Certificateholders to the extent set forth herein and to the
extent such payments are "unanticipated expenses incurred by the REMIC" within
the meaning of Treasury Regulations Section 1.860G-1(b)(iii) except any such
expense, disbursement or advance as may arise from its negligence or bad faith;
provided, however, that, subject to the last paragraph of Section 8.01, the
Trustee shall not refuse to perform any of its duties hereunder solely as a
result of the failure to be paid the Trustee Fee and the Trustee's expenses. The
term "unanticipated expenses incurred by the REMIC" shall include any fees,
expenses and disbursement of any separate Trustee or co-Trustee appointed
hereunder, only to the extent such fees, expenses and disbursements were not
reasonably anticipated as of the Closing Date and are attributable to the Loan
REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC or the Grantor Trust and the
losses, liabilities, damages, claims or expenses (including reasonable
attorneys' fees) incurred or advanced by an Indemnified Party in connection with
any litigation arising out of this Agreement attributable to the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC or the Grantor Trust, including,
without limitation, under Section 2.03, Section 3.10, the third paragraph of
Section 3.11, Section 4.05 and Section 7.01.
The Master Servicer and the Special Servicer covenant and agree to
pay or reimburse the Trustee for the reasonable expenses, disbursements and
advances incurred or made by the Trustee in connection with any transfer of the
servicing responsibilities of the Master Servicer or the Special Servicer,
respectively, hereunder, pursuant to or otherwise arising from the resignation
or removal of the Master Servicer or Special Servicer (except in the case of
removal of the Special Servicer without cause), as applicable, in accordance
with any of the provisions of this Agreement (and including the reasonable fees
and expenses and disbursements of its counsel and all other persons not
regularly in its employ), except any such expense, disbursement or advance as
may arise from the negligence or bad faith of the Trustee.
(d) Each of the Paying Agent, the Certificate Registrar, the
Custodian, the Depositor, the Master Servicer and the Special Servicer (each, in
such context, an "Indemnifying Party") shall indemnify the Trustee and its
Affiliates and each of the directors, officers, employees and agents of the
Trustee and its Affiliates (each, in such context, an "Indemnified Party"), and
hold each of them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that the Indemnified
Party may sustain in connection with this Agreement (including, without
limitation, reasonable fees and disbursements of counsel incurred by the
Indemnified Party in any action or proceeding between the Indemnifying Party and
the Indemnified Party or between the Indemnified Party and any third party or
otherwise) related to each such Indemnifying Party's respective willful
misconduct, bad faith, fraud or negligence in the performance of each of its
respective duties hereunder or by reason of reckless disregard of its respective
obligations and duties hereunder (including in the case of any Servicer, any
agent of the Master Servicer or Sub-Servicer).
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(e) The Trust Fund shall indemnify each Indemnified Party from, and
hold it harmless against, any and all losses, liabilities, damages, claims or
unanticipated expenses (including, without limitation, reasonable fees and
disbursements of counsel incurred by the Indemnified Party in any action or
proceeding between the Indemnifying Party and the Indemnified Party or between
the Indemnified Party and any third party or otherwise) arising in respect of
this Agreement or the Certificates other than (i) those resulting from the
negligence, fraud, bad faith or willful misconduct of the Indemnified Party and
(ii) those as to which such Indemnified Party is entitled to indemnification
pursuant to Section 8.05(d). The right of reimbursement of the Indemnified
Parties under this Section 8.05(e) shall be senior to the rights of all
Certificateholders.
(f) Notwithstanding anything herein to the contrary, this Section
8.05 shall survive the termination or maturity of this Agreement or the
resignation or removal of the Trustee, as the case may be, regarding rights
accrued prior to such resignation or removal and (with respect to any acts or
omissions during its respective tenures) the resignation, removal or termination
of the Master Servicer, the Special Servicer, the Paying Agent, the Certificate
Registrar or the Custodian.
(g) This Section 8.05 shall be expressly construed to include, but
not be limited to, such indemnities, compensation, expenses, disbursements,
advances, losses, liabilities, damages and the like, as may pertain or relate to
any environmental law or environmental matter.
(h) The Trustee (the "Indemnifying Party") shall indemnify the
Master Servicer and the Special Servicer and their respective Affiliates and
each of the directors, officers, employees and agents of the Master Servicer and
the Special Servicer and their respective Affiliates (each, in such context, an
"Indemnified Party"), and hold each of them harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees and expenses that
the Indemnified Party may sustain in connection with this Agreement (including,
without limitation reasonable fees and disbursements of counsel incurred by the
Indemnified Party in any action or proceeding between the Indemnifying Party and
the Indemnified Party or between the Indemnified Party and any third party or
otherwise) related to the Indemnifying Party's willful misconduct, bad faith,
fraud or negligence in the performance of its duties hereunder or by reason of
reckless disregard of its obligations and duties hereunder.
Section 8.06 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a corporation or association 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 $[50,000,000], its long-term unsecured debt obligations must be rated at
least "A+" by [S&P] and "Aa3" by [Xxxxx'x], and its short-term unsecured debt
obligations must be rated at least "A-1" by [S&P] or, in each case, such other
ratings acceptable to the Rating Agencies, and shall be subject to supervision
or examination by federal or state authority and shall not be an Affiliate of
the Master Servicer (except during any period when the Trustee has assumed the
duties of the Master Servicer pursuant to Section 7.02). If a corporation or
association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for purposes of this
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Section the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If the place of business from which the Trustee
administers the Trust Fund is a state or local jurisdiction that imposes a tax
on the Trust Fund or the net income of any Trust REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions) the Trustee shall
elect either to (i) resign immediately in the manner and with the effect
specified in Section 8.07, (ii) pay such tax and continue as Trustee or (iii)
administer the Trust Fund from a state and local jurisdiction that does not
impose such a tax. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07.
Section 8.07 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Trustee, the Depositor, the Master Servicer, the
Special Servicer and each Rating Agency. Upon such notice of resignation from
the Trustee, the Master Servicer shall promptly appoint a successor trustee, the
appointment of which is subject to the requirements contained in Section 8.06.
If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor or the Master Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee (or of its property) shall be appointed,
or any public officer shall take charge or control of the Trustee (or of its
property or affairs) for the purpose of rehabilitation, conservation or
liquidation, then the Depositor or the Master Servicer may remove the Trustee
and the Depositor or the Master Servicer shall promptly appoint a successor
trustee by written instrument, which shall be delivered to the Trustee so
removed and to the successor trustee.
The Holders of Certificates entitled to at least a majority of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in seven originals, signed by such Holders
or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Depositor, one complete set to the Master
Servicer and Special Servicer, one complete set to the Trustee so removed, and
one complete set to the successor trustee.
In addition, if the Trustee is terminated without cause, the
terminating party shall pay all of the expenses of the Trustee necessary to
affect the transfer of its responsibilities to the successor trustee.
In the event that the Trustee is terminated or removed pursuant to
this Section 8.07, all of its rights and obligations under this Agreement and in
and to the Mortgage Loans shall be terminated, other than any rights or
obligations that accrued prior to the date of such termination or removal
(including the right to receive all fees, expenses and other amounts accrued or
owing to it under this Agreement, plus interest at the Advance Rate on all such
amounts until received to the extent such amounts bear interest as provided in
this Agreement, with respect to periods prior to the date of such termination or
removal).
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Section 8.08 Successor Trustee. (a) Any successor trustee shall
execute, acknowledge and deliver to the Depositor, the Master Servicer and to
the predecessor Trustee, as the case may be, instruments accepting their
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as Trustee herein, provided that such
successor trustee shall satisfy the requirements contained in Section 8.06. The
predecessor Trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder, and the Depositor and
the predecessor Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly vesting
and confirming in the successor trustee all such rights, powers, duties and
obligations. No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
Trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Depositor fails to mail such notice within [10]
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Depositor.
(b) Any successor trustee appointed pursuant to this Agreement shall
satisfy the eligibility requirements set forth in Section 8.06 hereof.
Section 8.09 Merger or Consolidation of Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be eligible under the provisions of Section 8.06, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
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
Depositor 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 (at the expense of the Trustee) 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 Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall not have joined in such appointment within [15] days
after the receipt by it of a request so to do, or in case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power to
make such appointment. Except as required by applicable law, the appointment of
a co-Trustee or separate Trustee shall not relieve the Trustee of its
responsibilities, obligations and liabilities hereunder. No co-Trustee or
separate Trustee hereunder shall be required to meet the
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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.
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 (it being understood that such separate Trustee or co-Trustee is not
authorized to act separately without the Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular act or
acts are to be performed (whether as Trustee hereunder or as successor to the
Master Servicer 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 solely at the direction of the Trustee.
No Trustee under this Agreement shall be personally liable by reason
of any act or omission of any other Trustee under this Agreement. The Depositor
and the Trustee acting jointly may at any time accept the resignation of or
remove any separate Trustee or co-Trustee, or if the separate Trustee or
co-Trustee is an employee of the Trustee, the Trustee acting alone may accept
the resignation of or remove any separate Trustee or co-Trustee.
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. Every such instrument shall be filed with the Trustee.
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. In no
event shall any such separate Trustee or co-Trustee be entitled to any provision
relating to the conduct of, affecting the liability of or affording protection
to such separate Trustee or co-Trustee that imposes a standard of conduct less
stringent than that imposed by the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
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.
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ARTICLE IX
TERMINATION
Section 9.01 Termination. (a) The respective obligations and
responsibilities of the Master Servicer, the Special Servicer, the Depositor and
the Trustee created hereby with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as hereinafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders, the [_____] B Loan Noteholder
of all amounts held by or on behalf of the Trustee and Master Servicer, as the
case may be, required hereunder to be so paid on the Distribution Date following
the earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c); (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) and (iii) the later of (a) the receipt
or collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to this Agreement of the
last asset held by the Trust Fund; provided, however, that in no event shall the
trust created hereby continue beyond the expiration of twenty-one years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the United Kingdom, living on the date
hereof.
For purposes of this Section 9.01, the Sole Certificateholder shall
have the first option to terminate the Trust Fund, pursuant to subsection (g),
and then the Certificateholder owning a majority of the Percentage Interests in
the Controlling Class, the Master Servicer and the Special Servicer, in that
order, pursuant to subsection (c).
(b) The Trust Fund, the Upper-Tier REMIC and the Lower-Tier REMIC
shall be terminated and the assets of the Trust Fund shall be sold or otherwise
disposed of in connection therewith, only pursuant to a "plan of complete
liquidation" within the meaning of Code Section 860F(a)(4)(A) providing for the
actions contemplated by the provisions hereof and pursuant to which the
applicable Notice of Termination is given, and requiring that the Trust Fund,
the Upper-Tier REMIC and the Lower-Tier REMIC shall terminate on a Distribution
Date occurring not more than 90 days following the date of adoption of the plan
of complete liquidation. For purposes of this Section 9.01(b), the Notice of
Termination given pursuant to Section 9.01(c) shall constitute the adoption of
the plan of complete liquidation as of the date such notice is given, which date
shall be specified by the Master Servicer in the final federal income tax
returns of the Upper-Tier REMIC and the Lower-Tier REMIC. The Loan REMIC shall
be terminated in such a complete liquidation simultaneously with the Upper-Tier
REMIC and the Lower-Tier REMIC and in accordance with the provisions of the Loan
REMIC Declaration. Notwithstanding the termination of the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC or the Trust Fund, the Trustee shall be
responsible for filing the final Tax Returns for each such REMIC and for the
Grantor Trust for the period ending with such termination, and shall retain
books and records with respect to such REMICs and the Grantor Trust for the same
period of retention for which it maintains its own tax returns or such other
reasonable period. The Trustee shall sign all Tax Returns and other reports
required by this Section.
(c) The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder exercises
such option, the Master Servicer
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and if the Master Servicer does not exercise such option, the Special Servicer,
may effect an early termination of the Trust Fund, upon not less than [30] days'
prior Notice of Termination given to the Trustee, the Special Servicer and the
Master Servicer any time on or after the Early Termination Notice Date
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage Loan
included in the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date (less any P&I Advances previously
made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not more
than [30] days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of each
Mortgage Loan (including any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the Mortgage Rate
to the last day of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on account of interest);
and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the Trust Fund,
on the last day of the month preceding such Anticipated Termination Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more than [30] days prior to the last day of the
month preceding such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In the event that the Certificateholder owning a majority of the
Percentage Interests in the Controlling Class, any Servicer or the Special
Servicer purchases all of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund in accordance with this
Section 9.01(c), the Certificateholder owning a majority of the Percentage
Interests in the Controlling Class, the Master Servicer or the Special Servicer,
as applicable, shall deposit in the Lower-Tier Distribution Account not later
than the Master Servicer Remittance Date relating to the Anticipated Termination
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
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Collection Account). In addition, the Master Servicer shall transfer to
the Trustee for deposit in the Lower-Tier Distribution Account all amounts
required to be transferred thereto on the Master Servicer Remittance Date from
its Collection Account, together with any other amounts on deposit in the
Collection 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 Certificateholder owning a majority of the
Percentage Interests in the Controlling Class, the Master Servicer or the
Special Servicer, as applicable, the Mortgage Files for the remaining Mortgage
Loans and shall execute all assignments, endorsements and other instruments
furnished to it by such purchasing party as shall be necessary to effectuate
transfer of the Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining in the Trust Fund, and the Trust Fund shall be
liquidated in accordance with this Article IX.
As a condition to the purchase of the assets of the Trust Fund
pursuant to this Section 9.01(c), the purchaser shall deliver to the Trustee an
Opinion of Counsel, which shall be at the expense of such purchaser, stating
that such termination will be a "qualified liquidation" under Section
860F(a)(4)(A) of the Code. All costs and expenses incurred by any and all
parties to this Agreement or by the Trust Fund in connection with the purchase
of the Mortgage Loans and other assets of the Trust Fund pursuant to this
Section 9.01(c) shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to this subsection (c).
(d) If the Trust Fund has not been previously terminated pursuant to
subsection (c) of this Section 9.01, the Trustee shall determine as soon as
practicable the Distribution Date on which the Trustee reasonably anticipates,
based on information with respect to the Mortgage Loans previously provided to
it, that the final distribution will be made (i) to the Holders of outstanding
Regular Certificates, and to the Trustee in respect of outstanding Lower-Tier
Regular Interests, notwithstanding that such distribution may be insufficient to
distribute in full the Certificate Balance or Lower-Tier Principal Balance of
each Class of Certificates or Lower-Tier Regular Interests, respectively,
together with amounts required to be distributed on such Distribution Date
pursuant to Section 4.01(a), (b), or (c) and (ii) if no such Classes of
Certificates are then outstanding, to the Holders of the [Class LR] Certificates
of any amount remaining in the Collection Account or the Lower-Tier Distribution
Account, and to the Holders of the [Class R] Certificates of any amount
remaining in the Upper-Tier Distribution Account.
(e) Notice of any termination of the Trust Fund pursuant to this
Section 9.01 shall be mailed by the Trustee to affected Certificateholders with
a copy to the Master Servicer and each Rating Agency at their addresses shown in
the Certificate Registrar as soon as practicable after the Trustee shall have
received, given or been deemed to have received a Notice of Termination but in
any event not more than 30 days, and not less than ten days, prior to the
Anticipated Termination Date. The notice mailed by the Trustee to affected
Certificateholders shall:
(i) specify the Anticipated Termination Date on which the final
distribution is anticipated to be made to Holders of Certificates of the
Classes specified therein;
(ii) specify the amount of any such final distribution, if known;
and
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(iii) state that the final distribution to Certificateholders will
be made only upon presentation and surrender of Certificates at the office
of the Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for any
reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(f) Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to this Section 9.01 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Residual Certificateholders. No interest shall accrue or
be payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01.
(g) Following the date on which the aggregate Certificate Balance of
the [Class A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class
A-5A], [Class A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class
D] Certificates is reduced to zero, the Sole Certificateholder shall have the
right to exchange all of its Certificates (other than the [Class R] and [Class
LR] Certificates), including the [Class X-C] and [Class X-P] Certificates, for
all of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of Section 9.01(a) by giving written notice to all
the parties hereto no later than [60] days prior to the anticipated date of
exchange. In the event that the Sole Certificateholder elects to exchange all of
its Certificates (other than the [Class R] and [Class LR] Certificates),
including the [Class X-C] and [Class X-P] Certificates, for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund in accordance with the
preceding sentence, such Sole Certificateholder, not later than the Distribution
Date on which the final distribution on the Certificates is to occur, shall
deposit in the Collection Account an amount in immediately available funds equal
to all amounts due and owing to the Depositor, the Master Servicer, the Special
Servicer and the Trustee hereunder through the date of the liquidation of the
Trust Fund that may be withdrawn from the Collection Account, or an escrow
account acceptable to the respective parties hereto, pursuant to Section 3.06(b)
or that may be withdrawn from the Distribution Accounts pursuant to Section
3.06(a), but only to the extent that
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such amounts are not already on deposit in the Collection Account. In addition,
the Master Servicer shall transfer all amounts required to be transferred to the
Trustee for deposit in the Lower-Tier Distribution Account on the Master
Servicer Remittance Date from the Collection Account pursuant to Section 3.05.
Upon confirmation that such final deposits have been made and following the
surrender of all its Certificates (other than the [Class R] and [Class LR]
Certificates) on the final Distribution Date, the Trustee shall, upon receipt of
a Request for Release from the Master Servicer, release or cause to be released
to the Sole Certificateholder or any designee thereof, the Mortgage Files for
the remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Sole Certificateholder as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in the Trust Fund, and the Trust Fund shall be liquidated in
accordance with this Article IX. The remaining Mortgage Loans and REO Properties
are deemed distributed to the Sole Certificateholder in liquidation of the Trust
Fund pursuant to this Article IX. Solely for federal income tax purposes, the
Sole Certificateholder shall be deemed to have purchased the assets of the Loan
REMIC and the Lower-Tier REMIC for an amount equal to the remaining Certificate
Balance of its Certificates (other than the [Class R] and [Class LR]
Certificates), plus accrued, unpaid interest with respect thereto, and the
Trustee shall credit such amounts against amounts distributable in respect of
the Lower-Tier Regular Interests and such Certificates.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.02 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, or 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, or
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
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, and
nothing herein set forth, or contained in the terms of the Certificates, shall
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; and no Certificateholder shall be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder or the [_____] B Loan Noteholder shall have any
right 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 such
Certificateholder or such [_____] B Loan Noteholder, as applicable, previously
shall have given to the Trustee a written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also such [_____] B
Loan Noteholder or the Certificateholders representing Percentage Interests of
at least 25% of each
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affected Class of Certificates, as applicable, have (or in the case of the
[_____] B Loan Noteholder, has) made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and have (or in the case of the [_____] B Loan Noteholder, has) offered to the
Trustee such reasonable security or 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
security or indemnity, shall have failed or refused to institute any such
action, suit or proceeding. It is understood and intended, and expressly
covenanted by the [_____] B Loan Noteholder and by each Certificateholder with
every other Certificateholder and the Trustee, that no [_____] B Loan Noteholder
or one or more Certificateholder of any Class shall have any right in any manner
whatever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of [_____] B Loan Noteholder or the Holders of any other of
such Certificates, or to obtain or seek to obtain priority over or preference to
any other such [_________] B Loan Noteholder or Certificateholder, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all [_________] B Loan Noteholder and
Holders of Certificates of such Class, as applicable. For the protection and
enforcement of the provisions of this Section, each and every [_________] B Loan
Noteholder, Certificateholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
Section 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 10.04 Notices. All demands, notices and communications
hereunder shall be in writing, shall be deemed to have been given upon receipt
(except that notices to Holders of [Class R] and [Class LR] Certificates or
Holders of any Class of Certificates no longer held through a Depository and
instead held in registered, definitive form shall be deemed to have been given
upon being sent by first-class mail, postage prepaid or by overnight courier) as
follows:
If to the Trustee or Paying Agent, to:
[________]
If to the Depositor, to:
Deutsche Mortgage & Asset Receiving Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
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If to the Master Servicer, to:
[________]
with a copy to:
[________]
If to the Special Servicer, to:
[________]
with a copy to:
[________]
If to the Underwriters, to:
[________]
with a copy to:
[________]
If to any Certificateholder, to:
the address set forth in the Certificate Register,
If to the initial Controlling Class Representative
[________]
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
Section 10.05 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, to the extent permitted by applicable law,
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 10.06 Notice to the Depositor and Each Rating Agency. (a)
The Trustee shall use its best efforts to promptly provide notice (and, in the
case of subsection (vii), promptly furnish or make available) to the Depositor,
the Underwriters, the Controlling Class Representative and each Rating Agency
with respect to each of the following of which a Responsible Officer of the
Trustee has actual knowledge:
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(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the merger, consolidation, resignation or termination of the
Master Servicer, the Special Servicer or the Trustee;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.03(d);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection Account, the Loan
Combination Collection Account, the Distribution Accounts, the Interest
Reserve Account, or the Excess Liquidation Proceeds Account; and
(vii) each report to Certificateholders described in Section 4.02,
Section 3.13 and Section 3.22.
(b) The Master Servicer shall promptly furnish to each Rating Agency
copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.14;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.15;
(iii) a copy of each rent roll and each operating and other
financial statement and occupancy reports, to the extent such information
is required to be delivered under a Mortgage Loan, in each case to the
extent collected pursuant to Section 3.03;
(iv) a copy of any notice with respect to a breach of a
representation or warranty with respect to any Mortgage Loan;
(v) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Master Servicer;
(vi) any change in the lien priority of a Mortgage Loan;
(vii) any new lease of an anchor or a termination of an anchor lease
at a retail Mortgaged Property;
(viii) any material damage to a Mortgaged Property; and
(ix) any amendment, modification, consent or waiver to or of any
provision of a Mortgage Loan.
(c) The Trustee, the Master Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency with respect to the Trust Fund,
a Mortgaged Property, a Borrower and a Specially Serviced Loan such information
as the Rating Agency and the
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Depositor shall reasonably request and which the Trustee, the Master Servicer or
the Special Servicer, can reasonably provide in accordance with applicable law
and without violating the terms of this Agreement or any Loan Documents. The
Rating Agencies shall not be charged any fee or expense in connection therewith.
Each party hereto shall send copies to the Depositor of any information that it
provided to any Rating Agency. Notwithstanding anything to the contrary herein,
nothing in this Section 10.06 shall require a party to provide duplicative
notices or copies to the Rating Agencies with respect to any of the above listed
items.
(d) Notices to each Rating Agency shall be addressed as follows:
[________]
[________]
or in each case to such other address as either Rating Agency shall specify by
written notice to the parties hereto.
Section 10.07 Amendment. This Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the [_____] B Loan Noteholder, (i) to cure any ambiguity or to correct any
error; (ii) to cause the provisions herein to conform or be consistent with or
in furtherance of the statements made in the Prospectus, the Private Placement
Memorandum, in each case, with respect to the Certificates, the Trust or this
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision hereof to the extent necessary or desirable to maintain
the rating or ratings assigned to each of the Classes of Certificates by each
Rating Agency; and (iv) to amend or supplement a provision, or to supplement any
other provisions to the extent not inconsistent with the provisions of this
Agreement, or any other change which will not adversely affect in any material
respect the interests of any Certificateholder or the [_____] B Loan Noteholder
not consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or the [_____] B Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to
qualify as a grantor trust.
This Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the prior written consent of the Holders of Certificates
representing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected thereby and the [_____] B Loan Noteholder 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 modifying in any manner
the rights of the Certificateholders or the [_____] B Loan Noteholder; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to be
distributed on any Certificate,
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without the consent of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby, or which
are required to be distributed to the [_____] B Loan Noteholder without
the consent of such [_____] B Loan Noteholder;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or inaction under
this Agreement;
(iii) alter the Servicing Standard or obligations of the Master
Servicer or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section hereof which relates to the amendment of this
Agreement without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or Classes
affected thereby and the consent of any affected [_____] B Loan
Noteholder.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the [_____] B Loan Noteholder, may amend
this Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Loan REMIC,
the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the qualification of
the Grantor Trust as a Grantor Trust, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, the [_____] B Loan Noteholder.
In the event that neither the Depositor nor any successor thereto,
if any, is in existence, any amendment under this Section 10.07 shall be
effective with the consent of the Trustee, the Master Servicer and the Special
Servicer, in writing, and to the extent required by this Section 10.07, the
Certificateholders and [_____] B Loan Noteholder. Promptly after the execution
of any amendment, the Master Servicer shall forward to the Trustee and the
Special Servicer, and the Trustee shall furnish written notification of the
substance of such amendment to each Certificateholder, the [_____] B Loan
Noteholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 10.07 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The method of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders and, if applicable,
[_____] B Loan Noteholder, shall be subject to such reasonable regulations as
the Trustee may prescribe; provided, however, that such method shall always be
by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no
amendment shall be made to this Agreement or any Custodial Agreement unless the
Trustee has received an
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Opinion of Counsel, at the expense of the party requesting such amendment (or,
if such amendment is required by any Rating Agency to maintain the rating issued
by it or requested by the Trustee for any purpose described in clause (i), (ii)
or (iii) of the first sentence of this Section, then at the expense of the Trust
Fund) to the effect that such amendment is permitted hereunder and such
amendment will not 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 Certificates are
outstanding, or cause the Grantor Trust to fail to qualify as a Grantor Trust,
or cause a tax to be imposed on the Trust Fund, any such REMIC or the Grantor
Trust.
Prior to the execution of any amendment to this Agreement or any
Custodial Agreement, the Trustee, the Special Servicer and the Master Servicer
may request and shall be entitled to rely conclusively upon an Opinion of
Counsel, at the expense of the party requesting such amendment (or, if such
amendment is required by any Rating Agency to maintain the rating issued by it
or requested by the Trustee for any purpose described in the first sentence of
this Section 10.07 (which do not modify or otherwise relate solely to the
obligations, duties or rights of the Trustee), then at the expense of the Trust
Fund) stating that the execution of such amendment is authorized or permitted by
this Agreement. The Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Trustee's own rights, duties or immunities
under this Agreement.
Notwithstanding any contrary provision contained in this Agreement,
no amendment shall be made to this Agreement which shall affect the obligations
of any Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
Section 10.08 Confirmation of Intent. It is the express intent of
the parties hereto that the conveyance of the Trust Fund (including the Mortgage
Loans) by the Depositor to the Trustee on behalf of Certificateholders as
contemplated by this Agreement and the sale by the Depositor of the Certificates
be, and be treated for all purposes as, a sale by the Depositor of the undivided
portion of the beneficial interest in the Trust Fund represented by the
Certificates. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Trust Fund by the Depositor to the Trustee
to secure a debt or other obligation of the Depositor. However, in the event
that, notwithstanding the intent of the parties, the Trust Fund is held to
continue to be property of the Depositor then (a) this Agreement shall also be
deemed to be a security agreement under applicable law; (b) the transfer of the
Trust Fund provided for herein shall be deemed to be a grant by the Depositor to
the Trustee on behalf of Certificateholders of a first priority security
interest in all of the Depositor's right, title and interest in and to the Trust
Fund and all amounts payable to the holders of the Mortgage Loans in accordance
with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Collection Account, the Loan Combination Collection Account, the
Distribution Accounts, the Interest Reserve Account, any REO Account and any
Excess Liquidation Proceeds Account whether in the form of cash, instruments,
securities or other property; (c) the possession by the Trustee (or the
Custodian on its behalf) of Notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-313 of the Delaware Uniform Commercial Code; and
(d) notifications to Persons holding such property, and acknowledgments,
receipts or
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confirmations from Persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Any assignment of the
interest of the Trustee pursuant to any provision hereof shall also be deemed to
be an assignment of any security interest created hereby. The Depositor shall,
and upon the request of the Master Servicer, the Trustee shall, to the extent
consistent with this Agreement (and at the expense of the Trust Fund), take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans or Loan Combination, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement. It is the intent of the parties that such a security interest
would be effective whether any of the Certificates are sold, pledged or
assigned.
Section 10.09 No Intended Third-Party Beneficiaries. Except as
specified in Section 10.12, no Person other than a party to this Agreement, any
Mortgage Loan Seller or any Certificateholder shall have any rights with respect
to the enforcement of any of the rights or obligations hereunder. Without
limiting the foregoing, the parties to this Agreement specifically state that no
Borrower, Manager or other party to a Mortgage Loan is an intended third-party
beneficiary of this Agreement.
Section 10.10 [Reserved]
Section 10.11 Entire Agreement. This Agreement and with respect to
the [_____] B Loan Noteholder, the related Co-Lender Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous
agreements, understanding, inducements and conditions, express or implied, oral
or written, of any nature whatsoever with respect to the subject matter hereof.
The express terms hereof control and supersedes any course of performance or
usage of the trade inconsistent with any of the terms hereof.
Each of the Trustee and the Master Servicer acknowledges that the
holder of the [_____] B Loan is an intended third party beneficiary in respect
of the rights afforded it under this Agreement and may directly enforce such
rights.
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness. Except with
respect to Section 11.08, Section 11.09 and Section 11.10, the parties hereto
acknowledge and agree that the purpose of Article XI of this Agreement is to
facilitate compliance by the Depositor with the provisions of Regulation AB and
related rules and regulations of the Commission. Neither the Depositor nor the
Master Servicer shall exercise its rights to request delivery of information or
other performance under these provisions other than in good faith, or for
purposes other than compliance with the Securities Act, the Exchange Act, the
Xxxxxxxx-Xxxxx Act and, in each case, the rules and regulations of the
Commission thereunder. The parties hereto acknowledge that interpretations of
the requirements of Regulation AB may change over time, whether due to
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interpretive guidance provided by the Commission or its staff, consensus among
participants in the asset-backed securities markets, advice of counsel, or
otherwise, and agree to comply with requests made by the Depositor or the Master
Servicer in good faith for delivery of information under these provisions on the
basis of evolving interpretations of Regulation AB. In connection with the
transaction governed by this Agreement, each of the Master Servicer, the Special
Servicer, any primary servicer or subservicer, the Trustee and the Paying Agent
shall cooperate fully with the Depositor and the Master Servicer, as applicable,
to deliver or make available to the Depositor or the Master Servicer, as
applicable (including any of their assignees or designees), any and all
statements, reports, certifications, records and any other information in its
possession and necessary in the good faith determination of the Depositor or the
Master Servicer, as applicable, to permit the Depositor to comply with the
provisions of Regulation AB, together with such disclosure relating to the
Master Servicer, the Special Servicer, or any primary servicer or subservicer,
the Trustee and the Paying Agent, as applicable, and any Sub-Servicer, or the
Servicing of the Mortgage Loans, reasonably believed by the Depositor or the
Master Servicer, as applicable, to be necessary in order to effect such
compliance.
Section 11.02 Filing Obligations. The Master Servicer, the Special
Servicer, any primary servicer or subservicer, the Paying Agent and the Trustee
shall, and the Master Servicer and Special Servicer shall cause each Additional
Servicer with which it has entered into a servicing relationship with respect to
the Mortgage Loans to, reasonably cooperate with the Depositor in connection
with the satisfaction of the Trust's reporting requirements under the Exchange
Act.
Section 11.03 Form 10-D Filings. Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act), the
Paying Agent shall prepare and file on behalf of the Trust any Form 10-D
required by the Exchange Act, in form and substance as required by the Exchange
Act. The Paying Agent shall file each Form 10-D with a copy of the related
Distribution Date Statement attached thereto. Any disclosure in addition to the
Distribution Date Statement that is required to be included on Form 10-D
("Additional Form 10-D Disclosure") shall be determined and prepared pursuant to
the following paragraph and the Paying Agent shall have no duty or liability for
any failure hereunder to determine or prepare any Additional Form 10-D
Disclosure, except as set forth in the next paragraph.
As set forth on Schedule IV hereto, within 5 calendar days after the
related Distribution Date, the person identified on such schedule shall be
required to provide to the Depositor and the Paying Agent, to the extent known,
any Additional Form 10-D Disclosure, if applicable. Within 5 calendar days after
the related Distribution Date, the Paying Agent shall provide to the Depositor,
and will thereafter include in the applicable Form 10-D, any information related
to the Paying Agent or its duties required to be included in a Form 10-D. The
Paying Agent shall (i) forward any Additional Form 10-D Disclosure received by
it or prepared by it (with respect to Additional Form 10-D Disclosure relating
to the Paying Agent) to the Depositor at least 5 calendar days after the related
Distribution Date, which delivery will also include notice to the Depositor of
any breaches of pool asset representations and warranties or transaction
covenants of which it has notice, which the Paying Agent shall include in the
draft Form 10-D provided to the Depositor in the following paragraph and (ii) at
any time prior to filing the related Form 10-D, provide prompt notice to the
Depositor to the extent that the Paying Agent is notified of an event reportable
on Form 10-D for which it has not received the necessary
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Additional Form 10-D Disclosure from the applicable party. The Depositor shall,
at least 4 Business Days prior to the date the related From 10-D is required to
be filed, subject to timely receipt of such disclosure, (i) direct the Paying
Agent either to include the Additional Form 10-D Disclosure, not include such
disclosure or provide comments to such disclosure and (ii) indicate to the
Paying Agent who will be signing the Form 10-D. The Depositor will be
responsible for any reasonable out-of-pocket fees and expenses incurred by the
Paying Agent in connection with including any Additional Form 10-D Disclosure on
Form 10-D pursuant to this paragraph.
After preparing the Form 10-D, on or prior to the [ ] Business Day
prior to the 15th calendar day after the related Distribution Date the Paying
Agent shall forward electronically a draft copy of the Form 10-D to the
Depositor and the Master Servicer for review. No later than [ ] Business Days
prior to the 15th calendar day after the related Distribution Date, a duly
authorized representative of the Depositor shall sign [or direct the Paying
Agent to sign pursuant to a power-of-attorney from the Depositor] the Form 10-D
and return an electronic or fax copy of such signed Form 10-D [or power of
attorney] (with an original executed hard copy to follow by overnight mail) to
the Paying Agent. If a Form 10-D cannot be filed on time or if a previously
filed Form 10-D needs to be amended, the Paying Agent will follow the procedures
set forth in Section 11.10(b). After their filing with the Commission, the
Trustee shall, pursuant to Section 4.02(c), make available on its internet
website a final executed copy of each Form 10-D. The Paying Agent shall have no
liability with respect to any failure to properly prepare, execute or file such
Form 10-D resulting from the Paying Agent's inability or failure to obtain or
receive any information needed to prepare, arrange for execution or file such
Form 10-D on a timely basis, not resulting from its own negligence, bad faith or
willful misconduct.
Section 11.04 Form 10-K Filings. Within 90 days after the end of
each fiscal year of the Trust or such earlier date as may be required by the
Exchange Act (the "10-K Filing Deadline") (it being understood that the fiscal
year for the Trust ends on December 31st of each year), commencing in March
200[7], the Paying Agent shall prepare and file on behalf of the Trust a Form
10-K, in form and substance as required by the Exchange Act. Each such Form 10-K
shall include the following items, in each case to the extent they have been
delivered to the Paying Agent within the applicable time frames set forth in
this Agreement, (i) an annual compliance statement for each Master Servicer,
Special Servicer and Additional Servicer, as described under Section 11.08,
(ii)(A) the annual reports on assessment of compliance with servicing criteria
for each Reporting Servicer, as described under Section 11.09, and (B) if any
Reporting Servicer's report on assessment of compliance with servicing criteria
described under Section 11.09 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any Reporting
Servicer's report on assessment of compliance with servicing criteria described
under Section 11.09 is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is not
included, (iii)(A) the registered public accounting firm attestation report for
each Reporting Servicer, as described under Section 11.10, and (B) if any
registered public accounting firm attestation report described under Section
11.10 identifies any material instance of noncompliance, disclosure identifying
such instance of noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is not
included, and (iv) a Xxxxxxxx-Xxxxx Certification as described in Section 11.05.
Any disclosure or
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information in addition to (i) through (iv) above that is required to be
included on Form 10-K ("Additional Form 10-K Disclosure") shall be determined
and prepared pursuant to the following paragraph and the Paying Agent will have
no duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-K Disclosure, except as set forth in the next paragraph.
As set forth on Schedule V hereto, no later than [____] of each year
that the Trust is subject to the Exchange Act reporting requirements, commencing
in 200[7], the persons identified on such schedule shall be required to provide
to the Depositor, to the extent known, any Additional Form 10-K Disclosure, if
applicable. The Paying Agent shall (i) forward any Additional Form 10-K
Disclosure received by it or prepared by it (with respect to Additional Form
10-K Disclosure relating to the Paying Agent) to the Depositor at least 15
calendar days prior to the date the related Form 10-K is required to be filed,
which delivery will also include notice to the Depositor of any breaches of pool
asset representations and warranties or transaction covenants of which it has
notice and (ii) at any time prior to filing the related Form 10-K, provide
prompt notice to the Depositor to the extent that the Paying Agent is notified
of an event reportable on Form 10-K for which it has not received the necessary
Additional Form 10-K Disclosure from the applicable party. The Depositor shall,
at least 7 calendar days prior to the date the related From 10-K is required to
be filed, to the extent it deems necessary, forward to the Paying Agent in
XXXXX-compatible form, or in such other form as otherwise agreed upon by the
Paying Agent and the Depositor, the form and substance of the Additional Form
10-K Disclosure, which the Paying Agent shall then file with the related Form
10-K. The Depositor will be responsible for any reasonable fees and expenses
incurred by the Paying Agent in connection with including any Additional Form
10-K Disclosure on Form 10-K pursuant to this paragraph.
After preparing the Form 10-K, on or prior to the [ ] Business Day
prior to the 10-K Filing Deadline, the Paying Agent shall forward electronically
a draft copy of the Form 10-K to the Depositor and the Master Servicer for
review. No later than 5:00pm EST on the [ ] Business Day prior to the 10-K
Filing Deadline, a senior officer in charge of securitization of the Depositor
shall sign [or direct the Paying Agent to sign pursuant to a power-of-attorney
from the Depositor] the Form 10-K and return an electronic or fax copy of such
signed Form 10-K [or power of attorney (with an original executed hard copy to
follow by overnight mail) to the Paying Agent. If a Form 10-K cannot be filed on
time or if a previously filed Form 10-K needs to be amended, the Paying Agent
will follow the procedures set forth in Section 11.10(b). After filing with the
Commission, the Paying Agent shall, pursuant to Section [ ], make available on
its internet website a final executed copy of each Form 10-K. The signing party
at the Depositor can be contacted at [______]. The Paying Agent shall have no
liability with respect to any failure to properly prepare, execute or file such
Form 10-K resulting from the Paying Agent's inability or failure to obtain or
receive any information needed to prepare, arrange for execution or file such
Form 10-K on a timely basis, not resulting from its own negligence, bad faith or
willful misconduct.
Section 11.05 Xxxxxxxx-Xxxxx Certification. Each Form 10-K shall
include a certification (the "Xxxxxxxx-Xxxxx Certification"), in the form
required by Regulation AB, required to be included therewith pursuant to the
Xxxxxxxx-Xxxxx Act. Each Reporting Servicer shall, and the Master Servicer and
the Special Servicer shall cause use reasonable best efforts to
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cause each Servicing Function Participant with which it has entered into a
servicing relationship with respect to the Mortgage Loans (other than any party
to this Agreement) to, provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the "Certifying Person"), by [March [ ]] of each year in which
the Trust is subject to the reporting requirements of the Exchange Act and
otherwise within a reasonable period of time upon request, a certification
(each, a "Performance Certification"), in substantially similar form to that
executed by the Depositor (but covering the Servicing Function Participant's
related obligations), upon which the Certifying Person, the entity for which the
Certifying Person acts as an officer, and such entity's officers, directors and
Affiliates (collectively with the Certifying Person, "Certification Parties")
can reasonably rely. The senior officer in charge of the servicing function of
the Depositor shall serve as the Certifying Person on behalf of the Trust. Such
officer of the Certifying Person can be contacted at [_____] . If any Reporting
Servicer is terminated or resigns pursuant to the terms of this Agreement, or
any applicable sub-servicing agreement or primary servicing agreement, as the
case may be, such Reporting Servicer shall provide a Performance Certification
and a reliance certificate to the Certifying Person pursuant to this Section
11.08 with respect to the period of time it was subject to this Agreement or the
applicable sub-servicing or primary servicing agreement, as the case may be.
Each Performance Certification shall include a reasonable reliance
provision enabling the Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 11.08, (ii) annual report on
assessment of compliance with servicing criteria provided pursuant to Section
11.09 and (iii) registered public accounting firm attestation report provided
pursuant to Section 11.10, and shall include a certification that each such
annual report on assessment of compliance discloses any deficiencies or defaults
described to the registered public accountants of such Reporting Servicer to
enable such accountants to render the attestation provided for in Section 11.09.
Section 11.06 Form 8-K Filings. Within four (4) Business Days after
the occurrence of an event requiring disclosure under Form 8-K (each a
"Reportable Event"), [and if requested by the Depositor,] the Paying Agent shall
prepare and file on behalf of the Trust any Form 8-K, as required by the
Exchange Act, provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included on
Form 8-K ("Form 8-K Disclosure Information") shall be determined and prepared
pursuant to the following paragraph and the Paying Agent shall have no duty or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
As set forth on Schedule VI hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than the end of
business on the [ ] Business Day after the occurrence of a Reportable Event (i)
the applicable person identified on such schedule shall be required to provide
to the Depositor and the Paying Agent any Form 8-K Disclosure Information, if
applicable, and (ii) unless otherwise directed by the Depositor, no later than
noon on the third Business Day after the Reportable Event, the Paying Agent
shall forward to the Depositor in XXXXX-compatible form, or in such other form
as otherwise agreed upon by the Paying Agent and the Depositor, containing the
Form 8-K Disclosure Information. No later than noon on the fourth Business Day
after the Reportable Event, the Depositor shall provide
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comments and, if it determines that such Form 8-K is required to be filed,
direct the Paying Agent to file such Form 8-K, and upon signature thereof as
provided below, the Paying Agent shall file such Form 8-K not later than the
required filing date. The Depositor will be responsible for any reasonable
out-of-pocket fees and expenses incurred by the Paying Agent in connection with
including any Form 8-K Disclosure Information on Form 8-K pursuant to this
paragraph.
After preparing the Form 8-K, the Paying Agent shall, no later than
Noon on the [ ] Business Day after the Reportable Event, forward electronically
a draft copy of the Form 8-K to the Depositor and the Master Servicer for
review. No later than Noon on the [ ] Business Day after the Reportable Event, a
duly authorized representative of the Depositor shall sign [or direct the Paying
Agent to sign pursuant to a power-of-attorney from the Depositor] the Form 8-K
and return an electronic or fax copy of such signed Form 8-K [or power of
attorney] (with an original executed hard copy to follow by overnight mail) to
the Paying Agent. If a Form 8-K cannot be filed on time or if a previously filed
Form 8-K needs to be amended, the Paying Agent will follow the procedures set
forth in Section 11.10(b). After their filing with the Commission, the Trustee
will, pursuant to Section 4.02(c), make available on its internet website a
final executed copy of each Form 8-K. The Paying Agent shall have no obligation
to prepare, execute or file such Form 8-K or any liability with respect to any
failure to properly prepare, execute or file such Form 8-K resulting from the
Paying Agent's inability or failure to obtain or receive any information needed
to prepare, arrange for execution or file such Form 8-K within the time frames
required by this Section, not resulting from its own negligence, bad faith or
willful misconduct.
The Master Servicer, the Special Servicer, the Paying Agent and the
Trustee shall promptly notify (and the Master Servicer and the Special Servicer
shall cause each Servicing Function Participant with which it has entered into a
servicing relationship with respect to the Mortgage Loans to promptly notify)
the Depositor and the Paying Agent, but in no event later than [ ] Business Day
after its occurrence, of any Reportable Event of which it has knowledge.
Section 11.07 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports (a) Prior to January 30 of the first year in
which the Paying Agent is able to do so under applicable law, the Paying Agent
shall file a Form 15 relating to the automatic suspension of reporting in
respect of the Trust under the Exchange Act.
(b) If the Paying Agent is unable to timely file with the Commission
all or any required portion of any Form 8-K, 10-D or 10-K required to be filed
by this Agreement because required disclosure information was either not
delivered to it or delivered to it after the delivery deadlines set forth in
this Agreement, the Paying Agent will immediately notify the Depositor and each
Reporting Servicer that failed to make such delivery. In the case of Form 10-D
and 10-K, each such Reporting Servicer will thereupon cooperate with the
Depositor and the Paying Agent in the preparation and filing [by the Paying
Agent] of a Form 12b-25 and a 10-DA and 10-KA as applicable, pursuant to Rule
12b-25 of the Exchange Act. In the case of Form 8-K, the Paying Agent shall,
upon receipt of all required Form 8-K Disclosure Information, include such
disclosure information on the next Form 10-D. In the event that any previously
filed Form 8-K, 10-D or 10-K needs to be amended, the Paying Agent will notify
the Depositor and the Master Servicer and such parties will cooperate to prepare
any necessary 8-KA, 10-DA or 10-KA.
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Section 11.08 Annual Compliance Statements. The Master Servicer and
the Special Servicer shall, and the Master Servicer and Special Servicer shall
cause each Additional Servicer with which it has entered into a servicing
relationship with respect to the Mortgage Loans to, deliver to the Depositor,
the Paying Agent and the Trustee on or before [March [ ]] of each year,
commencing in March 200[7], an Officer's Certificate stating, as to the signer
thereof, that (A) a review of such Certifying Servicer's activities during the
preceding calendar year or portion thereof and of such Certifying Servicer's
performance under this Agreement, or the applicable sub-servicing agreement or
primary servicing agreement in the case of an Additional Servicer, has been made
under such officer's supervision and (B) to the best of such officer's
knowledge, based on such review, such Certifying Servicer has fulfilled all its
obligations under this Agreement, or the applicable sub-servicing agreement or
primary servicing agreement in the case of an Additional Servicer, in all
material respects throughout such year or portion thereof, or, if there has been
a failure to fulfill any such obligation in any material respect, specifying
each such failure known to such officer and the nature and status thereof.
Promptly after receipt of each such Officer's Certificate, the Depositor shall
have the right to review such Officer's Certificate and, if applicable, consult
with each Certifying Servicer, as applicable, as to the nature of any failures
by such Certifying Servicer, in the fulfillment of any of the Certifying
Servicer's obligations hereunder or under the applicable sub-servicing or
primary servicing agreement.
Section 11.09 Annual Reports on Assessment of Compliance with
Servicing Criteria By March [ ] of each year, commencing in March 200[7], the
Master Servicer, the Special Servicer (regardless of whether the Special
Servicer has commenced special servicing of any Mortgage Loan), the Paying
Agent, the Trustee, and each Sub-Servicer, each at its own expense, shall
furnish, and each of the preceding parties, as applicable, shall use
[reasonable] efforts to cause each other Servicing Function Participant to
furnish, each at its own expense, to the Trustee, the Paying Agent and the
Depositor, a report on an assessment of compliance with the Relevant Servicing
Criteria with respect to commercial mortgage backed securities transactions
taken as a whole involving such party that contains (A) a statement by such
Reporting Servicer of its responsibility for assessing compliance with the
Relevant Servicing Criteria, (B) a statement that such Reporting Servicer used
the Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such Reporting Servicer's assessment of compliance with the
Relevant Servicing Criteria as of and for the period ending the end of the
fiscal year covered by the Form 10-K required to be filed pursuant to Section
11.04, including, if there has been any material instance of noncompliance with
the Relevant Servicing Criteria, a discussion of each such failure and the
nature and status thereof, and (D) a statement that a registered public
accounting firm has issued an attestation report on such Reporting Servicer's
assessment of compliance with the Relevant Servicing Criteria as of and for such
period.
No later than the end of each fiscal year for the Trust for which a
10-K is required to be filed, the Master Servicer, Special Servicer and Trustee
shall each forward to the Paying Agent the name of each Servicing Function
Participant engaged by it and what Relevant Servicing Criteria will be addressed
in the report on assessment of compliance prepared by such Servicing Function
Participant. When the Master Servicer, Special Servicer and Trustee submit their
assessments by [March [ ]] to the Paying Agent, such parties will also at such
time include the assessment (and attestation pursuant to Section 11.10) of each
Servicing Function Participant engaged by it.
-273-
Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor shall have the right to review each such report
and, if applicable, consult with the Master Servicer, the Special Servicer, the
Paying Agent, the Trustee and any Servicing Function Participant as to the
nature of any material instance of noncompliance with the Relevant Servicing
Criteria by the Master Servicer, the Special Servicer, the Paying Agent, the
Trustee or any Servicing Function Participant, and (ii) the Paying Agent shall
confirm that the assessments, taken as a whole, address all of the Servicing
Criteria and taken individually address the Relevant Servicing Criteria for each
party as set forth on Schedule III and notify the Depositor of any exceptions.
None of the Master Servicer, the Special Servicer, any primary servicer or
subservicer or any Servicing Function Participant shall be required to deliver,
or to endeavor to cause the delivery of, any such reports until April 15 in any
given year so long as it has received written confirmation from the Depositor
that a Form 10-K is not required to be filed in respect of the Trust for the
preceding calendar year.
Section 11.10 Annual Independent Public Accountants' Servicing
Report. By March [ ] of each year, commencing in March 200[7], the Master
Servicer, the Special Servicer, the Paying Agent, the Trustee and each
Sub-Servicer, each at its own expense, shall use [reasonable] efforts to cause,
and each of the preceding parties, as applicable, shall use [reasonable] efforts
to cause each other Servicing Function Participant with which it has entered
into a servicing relationship with respect to the Mortgage Loans (other than any
party to this Agreement) to cause, each at its own expense, a registered public
accounting firm (which may also render other services to the Master Servicer,
the Special Servicer, the Paying Agent, the Trustee, such Sub-Servicer or such
other Servicing Function Participant, as the case may be) and that is a member
of the American Institute of Certified Public Accountants to furnish a report to
the Trustee, the Paying Agent and the Depositor, to the effect that (i) it has
obtained a representation regarding certain matters from the management of such
Reporting Servicer, which includes [an assessment from such Reporting Servicer
of its compliance with the Relevant Servicing Criteria], and (ii) on the basis
of an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the PCAOB, it is expressing an
opinion as to whether such Reporting Servicer's compliance with the Relevant
Servicing Criteria was fairly stated in all material respects, or it cannot
express an overall opinion regarding such Reporting Servicer's assessment of
compliance with the Relevant Servicing Criteria. If an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language.
Promptly after receipt of such report from the Master Servicer, the
Special Servicer, the Paying Agent, the Trustee, any Sub-Servicer or any
Servicing Function Participant with which it has entered into a servicing
relationship with respect to the Mortgage Loans, (i) the Depositor shall have
the right to review the report and, if applicable, consult with the Master
Servicer, Special Servicer, the Paying Agent, the Trustee, any Sub-Servicer or
any such Servicing Function Participant as to the nature of any [material
instance of noncompliance] by the Master Servicer, the Special Servicer, the
Paying Agent, the Trustee or any such Servicing Function Participant with the
Servicing Criteria applicable to such person, with which it has entered into a
servicing relationship with respect to the Mortgage Loans (other than any party
to this Agreement), as the case may be, in the fulfillment of any of the Master
Servicer's, the Special Servicer's, the Paying Agent's, the Trustee's, the
applicable Sub-Servicer's or the
-274-
applicable Servicing Function Participant's obligations hereunder or under any
applicable sub-servicing or primary servicing agreement, and (ii) the Paying
Agent shall confirm that each assessment submitted pursuant to Section 11.09 is
coupled with an attestation meeting the requirements of this Section and notify
the Depositor of any exceptions. The Master Servicer, the Special Servicer, the
Paying Agent, the Trustee or any Servicing Function Participant shall not be
required to deliver, or to endeavor to cause the delivery of, such reports until
April 15 in any given year so long as it has received written confirmation from
the Depositor that a 10-K is not required to be filed in respect of the Trust
for the preceding fiscal year.
Section 11.11 Exchange Act Reporting Indemnification. Each of the
Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall
indemnify and hold harmless each Certification Party from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments and other costs and expenses incurred by such
Certification Party arising out of (i) an actual breach by the Master Servicer,
the Special Servicer, the Trustee or the Paying Agent, as the case may be, of
its obligations under this Article XI or (ii) negligence, bad faith or willful
misconduct on the part of the Master Servicer, the Special Servicer, the Trustee
or the Paying Agent in the performance of such obligations.
The Master Servicer and the Special Servicer shall use [reasonable]
best efforts to cause each Additional Servicer and each Servicing Function
Participant with which it has entered into a servicing relationship with respect
to the Mortgage Loans (other than any party to this Agreement) to indemnify and
hold harmless each Certification Party from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments and other costs and expenses incurred by such Certification Party
arising out of (i) a breach of its obligations to provide any of the annual
compliance statements or annual assessment of servicing criteria or attestation
reports pursuant to this Agreement, or the applicable sub-servicing or primary
servicing agreement, as applicable, or (ii) negligence, bad faith or willful
misconduct its part in the performance of such obligations thereunder.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
Special Servicer, Paying Agent, Additional Servicer or other Servicing Function
Participant (the "Performing Party") shall contribute to the amount paid or
payable to the Certification Party as a result of the losses, claims, damages or
liabilities of the Certification Party in such proportion as is appropriate to
reflect the relative fault of the Certification Party on the one hand and the
Performing Party on the other in connection with a breach of the Performing
Party's obligations pursuant to this Article XI (or breach of its obligations
under the applicable sub-servicing or primary servicing agreement to provide any
of the annual compliance statements or annual servicing criteria compliance
reports or attestation reports or otherwise comply with the requirements of this
Article XI) or the Performing Party's negligence, bad faith or willful
misconduct in connection therewith. The Master Servicer and Special Servicer
shall use reasonable best efforts to cause each Additional Servicer or Servicing
Function Participant with which it has entered into a servicing relationship
with respect to the Mortgage Loans (other than any party to this Agreement) to
the Mortgage Loans to agree to the foregoing indemnification and contribution
obligations.
-275-
Section 11.12.Amendments. This Article XI may be amended by the
parties hereto for purposes of complying with Regulation AB without any Opinions
of Counsel, Officer's Certificates, Rating Agency Confirmations or the consent
of any Certificateholder, notwithstanding anything to the contrary contained in
this Agreement.
-276-
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Paying Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized all as of the day
and year first above written.
DEUTSCHE MORTGAGE & ASSET
Signed and acknowledged RECEIVING CORPORATION,
in the presence of as Depositor
------------------------------
Print Name: By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
------------------------------
Print Name:
------------------------------
Print Name: By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
------------------------------
Print Name
[________]
Signed and acknowledged as Master Servicer
in the presence of
------------------------------
Print Name: By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
------------------------------
Print Name
[________]
Signed and acknowledged
in the presence of
------------------------------
Print Name: By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
------------------------------
Print Name
[________],
Signed and acknowledged as Special Servicer
in the presence of
------------------------------
Print Name: By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
------------------------------
Print Name
[________],
Signed and acknowledged as Trustee and Paying Agent
in the presence of
------------------------------
Print Name: By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
------------------------------
Print Name
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the [_____] day of [_____] in the year [____], before me, the
undersigned, personally appeared Xxxxxx Xxxxxxxx and Xxxx Xxxxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
------------------------------------
Signature and Office of individual
taking acknowledgment
This instrument prepared by:
Name: Cadwalader, Xxxxxxxxxx & Xxxx LLP
Address: One World Financial Center
New York, New York 10281
STATE OF )
: ss.:
COUNTY OF )
On the ______ day of [____] in the year [____], before me, the
undersigned, personally appeared
_________________________________________________, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument, and that
such individual made such appearance before the undersigned in the
_____________________________ (insert the city or other political subdivision
and the state or county or other place the acknowledgment was taken).
------------------------------------
Signature and Office of individual
taking acknowledgment
This instrument prepared by:
Name: Cadwalader, Xxxxxxxxxx & Xxxx LLP
Address: One World Financial Center
New York, New York 10281
STATE OF )
: ss.:
COUNTY OF )
On the ______ day of [____] in the year [___], before me, the
undersigned, personally appeared
_________________________________________________, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument, and that
such individual made such appearance before the undersigned in the
_____________________________ (insert the city or other political subdivision
and the state or county or other place the acknowledgment was taken).
------------------------------------
Signature and Office of individual
taking acknowledgment
This instrument prepared by:
Name: Cadwalader, Xxxxxxxxxx & Xxxx LLP
Address: One World Financial Center
New York, New York 10281
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ______ day of [____] in the year [___], before me, the
undersigned, personally appeared
_________________________________________________, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
------------------------------------
Signature and Office of individual
taking acknowledgment
This instrument prepared by:
Name: Cadwalader, Xxxxxxxxxx & Xxxx LLP
Address: One World Financial Center
New York, New York 10281
STATE OF )
: ss.:
COUNTY OF )
On the ______ day of [____] in the year [___], before me, the
undersigned, personally appeared
_________________________________________________, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument, and that
such individual made such appearance before the undersigned in the
_____________________________ (insert the city or other political subdivision
and the state or county or other place the acknowledgment was taken).
------------------------------------
Signature and Office of individual
taking acknowledgment
This instrument prepared by:
Name: Cadwalader, Xxxxxxxxxx & Xxxx LLP
Address: One World Financial Center
New York, New York 10281
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ______ day of [____] in the year [___], before me, the
undersigned, personally appeared
_________________________________________________, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
------------------------------------
Signature and Office of individual
taking acknowledgment
This instrument prepared by:
Name: Cadwalader, Xxxxxxxxxx & Xxxx LLP
Address: Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A-1
FORM OF [CLASS A-1] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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, AND CERTAIN OTHER ASSETS.
A-1-1
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS A-1]
[Class A-1] Pass-Through Rate: [_______]% CUSIP: [_______________]
ISIN: [_______________]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class A-1] Certificates: this Certificate:
$[_______________] $[_______________]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [A-1]-1
[__________________], 20[__]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class A-1] Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties and
held in trust by the Trustee and serviced by the applicable Servicer. The Trust
Fund was created, and the Mortgage Loans are to be serviced, pursuant to the
Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the [Class
A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class
A-1A], [Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P], [Class R] and [Class LR]
Certificates (together with the [Class A-1] Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business
A-1-2
Day immediately following such day, commencing in [__________] 20[__] (each such
date, a "Distribution 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 A-l] Certificates for such Distribution Date, all
as more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class A-1] Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their
A-1-3
Certificates. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders shall be paid out of such funds. If within
two years after the second notice any such Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor trustee and (ii) the termination of the
Trust Fund and distribution of such amounts to the Residual Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with the Pooling and
Servicing Agreement. Such funds held by the Trustee may be invested under
certain circumstances, and all income and gain realized from investment of such
funds shall accrue for its benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
A-1-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
A-1-5
inconsistent with the provisions of the Pooling and Servicing Agreement, or any
other change which will not adversely affect in any material respect the
interests of any Certificateholder or B Loan Noteholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel or, if solely affecting any
Certificateholder or B Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding;
A-1-6
provided, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding
A-1-7
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
A-1-8
IN WITNESS WHEREOF, the Trustee has caused this [Class A-1]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class A-l] Certificates referred to in the
Pooling and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
A-1-9
EXHIBIT A-2
FORM OF [CLASS A-2] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
A-2-1
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS A-2]
[Class A-2] Pass-Through Rate: [_______]% CUSIP: [_______]
ISIN: [_______]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class A-2] Certificates: $[_______] this Certificate: $[_______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [A-2]-1
[_______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class A-2] Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties and
held in trust by the Trustee and serviced by the applicable Servicer. The Trust
Fund was created, and the Mortgage Loans are to be serviced, pursuant to the
Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the [Class
A-1], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class
A-1A], [Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P], [Class R] and [Class LR]
Certificates (together with the [Class A-2] Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any
A-2-2
Certificate), on the tenth day of each month, or if such day is not a Business
Day, the Business Day immediately following such day, commencing in [__________]
20[__] (each such date, a "Distribution 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 A-2] Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums
and Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class A-2] Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee may, directly or through an
agent, take appropriate
A-2-3
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.
If within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor trustee and (ii) the termination of the
Trust Fund and distribution of such amounts to the Residual Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with the Pooling and
Servicing Agreement. Such funds held by the Trustee may be invested under
certain circumstances, and all income and gain realized from investment of such
funds shall accrue for its benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing
A-2-4
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision
A-2-5
of the Pooling and Servicing Agreement to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; and (iv) to amend or supplement a provision, or to
supplement any other provisions to the extent not inconsistent with the
provisions of the Pooling and Servicing Agreement, or any other change which
will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the
A-2-6
Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on
A-2-7
the last day of the month preceding such Anticipated
Termination Date, as determined by an Independent appraiser
acceptable to the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
A-2-8
IN WITNESS WHEREOF, the Trustee has caused this [Class A-2]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class A-2] Certificates referred to in the
Pooling and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
A-2-9
EXHIBIT A-3
FORM OF [CLASS A-3] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
A-3-1
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS A-3]
[Class A-3] Pass-Through Rate: [______]% CUSIP: [______]
ISIN: [______]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class A-3] Certificates: $[______] this Certificate: $[______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [A-3]-1
[______] 20[__]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class A-3] Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties and
held in trust by the Trustee and serviced by the applicable Servicer. The Trust
Fund was created, and the Mortgage Loans are to be serviced, pursuant to the
Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the [Class
A-1], [Class A-2], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class
A-1A], [Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P], [Class R] and [Class LR]
Certificates (together with the [Class A-3] Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business
A-3-2
Day immediately following such day, commencing in [__________] 20[__] (each such
date, a "Distribution 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 A-3] Certificates for such Distribution Date, all
as more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class A-3] Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their
A-3-3
Certificates. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders shall be paid out of such funds. If within
two years after the second notice any such Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor trustee and (ii) the termination of the
Trust Fund and distribution of such amounts to the Residual Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with the Pooling and
Servicing Agreement. Such funds held by the Trustee may be invested under
certain circumstances, and all income and gain realized from investment of such
funds shall accrue for its benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
A-3-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
A-3-5
inconsistent with the provisions of the Pooling and Servicing Agreement, or any
other change which will not adversely affect in any material respect the
interests of any Certificateholder or B Loan Noteholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel or, if solely affecting any
Certificateholder or B Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding;
A-3-6
provided, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding
A-3-7
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
A-3-8
IN WITNESS WHEREOF, the Trustee has caused this [Class A-3]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class A-3] Certificates referred to in the
Pooling and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
A-3-9
EXHIBIT A-4
FORM OF [CLASS A-4] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
A-4-1
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS A-4]
[Class A-4] Pass-Through Rate: [_______]% CUSIP: [_______]
ISIN: [_______]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class A-4] Certificates: $[_______] this Certificate: $[_______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [A-4]-1
[_______] 20[__]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class A-4] Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties and
held in trust by the Trustee and serviced by the applicable Servicer. The Trust
Fund was created, and the Mortgage Loans are to be serviced, pursuant to the
Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the [Class
A-1], [Class A-2], [Class A-3], [Class A-AB], [Class A-5A], [Class A-5B], [Class
A-1A], [Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P], [Class R] and [Class LR]
Certificates (together with the [Class A-4] Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business
A-4-2
Day immediately following such day, commencing in [__________] 20[__] (each such
date, a "Distribution 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 A-4] Certificates for such Distribution Date, all
as more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class A-4] Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their
A-4-3
Certificates. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders shall be paid out of such funds. If within
two years after the second notice any such Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor trustee and (ii) the termination of the
Trust Fund and distribution of such amounts to the Residual Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with the Pooling and
Servicing Agreement. Such funds held by the Trustee may be invested under
certain circumstances, and all income and gain realized from investment of such
funds shall accrue for its benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
A-4-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
A-4-5
inconsistent with the provisions of the Pooling and Servicing Agreement, or any
other change which will not adversely affect in any material respect the
interests of any Certificateholder or B Loan Noteholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel or, if solely affecting any
Certificateholder or B Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding;
A-4-6
provided, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding
A-4-7
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
A-4-8
IN WITNESS WHEREOF, the Trustee has caused this [Class A-4]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class A-4] Certificates referred to in the
Pooling and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
A-4-9
EXHIBIT A-5
FORM OF [CLASS A-AB] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
A-AB-1
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS A-AB]
[Class A-AB] Pass-Through Rate: [_______]% CUSIP: [_______]
ISIN: [_______]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class A-AB] Certificates: $[_______] this Certificate: $[_______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [A-AB]-1
[_______] 20[__]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class A-AB] Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties and
held in trust by the Trustee and serviced by the applicable Servicer. The Trust
Fund was created, and the Mortgage Loans are to be serviced, pursuant to the
Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-5A], [Class A-5B], [Class
A-1A], [Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P], [Class R] and [Class LR]
Certificates (together with the [Class A-AB] Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business
A-AB-2
Day immediately following such day, commencing in [__________] 20[__] (each such
date, a "Distribution 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 A-AB] Certificates for such Distribution Date, all
as more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class A-AB] Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their
A-AB-3
Certificates. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders shall be paid out of such funds. If within
two years after the second notice any such Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor trustee and (ii) the termination of the
Trust Fund and distribution of such amounts to the Residual Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with the Pooling and
Servicing Agreement. Such funds held by the Trustee may be invested under
certain circumstances, and all income and gain realized from investment of such
funds shall accrue for its benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
A-AB-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
A-AB-5
inconsistent with the provisions of the Pooling and Servicing Agreement, or any
other change which will not adversely affect in any material respect the
interests of any Certificateholder or B Loan Noteholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel or, if solely affecting any
Certificateholder or B Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding;
A-AB-6
provided, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding
A-AB-7
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
A-AB-8
IN WITNESS WHEREOF, the Trustee has caused this [Class A-AB]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class A-AB] Certificates referred to in the
Pooling and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
A-AB-9
EXHIBIT A-6
FORM OF [CLASS A-5A] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
A-5A-1
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS A-5A]
[Class A-5A] Pass-Through Rate: [_______]% CUSIP: [_______]
ISIN: [_______]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class A-5A] Certificates: $[_______] this Certificate: $[_______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [A-5A]-1
[_______], 20[__]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class A-5A] Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties and
held in trust by the Trustee and serviced by the applicable Servicer. The Trust
Fund was created, and the Mortgage Loans are to be serviced, pursuant to the
Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5B], [Class
A-1A], [Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P], [Class R] and [Class LR]
Certificates (together with the [Class A-5A] Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business
A-5A-2
Day immediately following such day, commencing in [__________] 20[__] (each such
date, a "Distribution 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 A-5A] Certificates for such Distribution Date, all
as more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class A-5A] Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their
A-5A-3
Certificates. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders shall be paid out of such funds. If within
two years after the second notice any such Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor trustee and (ii) the termination of the
Trust Fund and distribution of such amounts to the Residual Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with the Pooling and
Servicing Agreement. Such funds held by the Trustee may be invested under
certain circumstances, and all income and gain realized from investment of such
funds shall accrue for its benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
A-5A-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
A-5A-5
inconsistent with the provisions of the Pooling and Servicing Agreement, or any
other change which will not adversely affect in any material respect the
interests of any Certificateholder or B Loan Noteholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel or, if solely affecting any
Certificateholder or B Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding;
A-5A-6
provided, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding
A-5A-7
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
A-5A-8
IN WITNESS WHEREOF, the Trustee has caused this [Class A-5A]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class A-5A] Certificates referred to in the
Pooling and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
A-5A-9
EXHIBIT A-7
FORM OF [CLASS A-5B] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
THIS [CLASS A-5B] CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
A-5B-1
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS A-5B]
[Class A-5B] Pass-Through Rate: [_______]% CUSIP: [_______]
ISIN: [_______]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class A-5B] Certificates: $[_______] this Certificate: $[_______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [A-5B]-1
[_______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class A-5B] Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties and
held in trust by the Trustee and serviced by the applicable Servicer. The Trust
Fund was created, and the Mortgage Loans are to be serviced, pursuant to the
Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-1A], [Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P], [Class R] and [Class LR]
Certificates (together with the [Class A-5B] Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business
A-5B-2
Day immediately following such day, commencing in [__________] 20[__] (each such
date, a "Distribution 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 A-5B] Certificates for such Distribution Date, all
as more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class A-5B] Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their
A-5B-3
Certificates. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders shall be paid out of such funds. If within
two years after the second notice any such Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor trustee and (ii) the termination of the
Trust Fund and distribution of such amounts to the Residual Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with the Pooling and
Servicing Agreement. Such funds held by the Trustee may be invested under
certain circumstances, and all income and gain realized from investment of such
funds shall accrue for its benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
A-5B-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
A-5B-5
inconsistent with the provisions of the Pooling and Servicing Agreement, or any
other change which will not adversely affect in any material respect the
interests of any Certificateholder or B Loan Noteholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel or, if solely affecting any
Certificateholder or B Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding;
A-5B-6
provided, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding
A-5B-7
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
A-5B-8
IN WITNESS WHEREOF, the Trustee has caused this [Class A-5B]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class A-5B] Certificates referred to in the
Pooling and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
X-0X-0
XXXXXXX X-0
FORM OF [CLASS A-1A] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
A-1A-1
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS A-1A]
[Class A-1A] Pass-Through Rate: [_______]% CUSIP: [_______]
ISIN: [_______]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class A-1A] Certificates: $[_______] this Certificate: $[_______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [A-1A]-1
[_______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class A-1A] Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties and
held in trust by the Trustee and serviced by the applicable Servicer. The Trust
Fund was created, and the Mortgage Loans are to be serviced, pursuant to the
Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P], [Class R] and [Class LR]
Certificates (together with the [Class A-1A] Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business
A-1A-2
Day immediately following such day, commencing in [__________] 20[__] (each such
date, a "Distribution 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 A-1A] Certificates for such Distribution Date, all
as more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class A-1A] Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their
A-1A-3
Certificates. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders shall be paid out of such funds. If within
two years after the second notice any such Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor trustee and (ii) the termination of the
Trust Fund and distribution of such amounts to the Residual Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with the Pooling and
Servicing Agreement. Such funds held by the Trustee may be invested under
certain circumstances, and all income and gain realized from investment of such
funds shall accrue for its benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
A-1A-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
A-1A-5
inconsistent with the provisions of the Pooling and Servicing Agreement, or any
other change which will not adversely affect in any material respect the
interests of any Certificateholder or B Loan Noteholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel or, if solely affecting any
Certificateholder or B Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding;
A-1A-6
provided, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding
A-1A-7
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
A-1A-8
IN WITNESS WHEREOF, the Trustee has caused this [Class A-1A]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class A-lA] Certificates referred to in the
Pooling and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
A-1A-9
EXHIBIT A-9
FORM OF [CLASS X-C]
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST
X-C-1
ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR
IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THE HOLDERS OF THIS [CLASS X-C] CERTIFICATE WILL BE ENTITLED ONLY TO
DISTRIBUTIONS OF INTEREST ON THE NOTIONAL BALANCE OF THE [CLASS X-C]
CERTIFICATES AND WILL NOT BE ENTITLED TO ANY DISTRIBUTIONS WITH RESPECT TO
PRINCIPAL. THE NOTIONAL BALANCE OF THE [CLASS X-C] CERTIFICATES IS EQUAL TO AN
AMOUNT AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.
ACCORDINGLY, THE OUTSTANDING NOTIONAL BALANCE OF THIS CERTIFICATE AT ANY TIME
MAY BE LESS THAN THE INITIAL NOTIONAL BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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, AND CERTAIN OTHER ASSETS.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
X-C-2
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS X-C]
[Class X-C] Pass-Through Rate: Variable,
as determined in accordance with the CUSIP: [_______] [_______]
Pooling and Servicing Agreement.
[_______]% ISIN: [_______] [_______]
Original Aggregate Notional Balance of Initial Notional Balance of this
the [Class X-C] Certificates: $[_______] Certificate: $[_______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [X-C]-1
[_______] 20[__]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class X-C] Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties and
held in trust by the Trustee and serviced by the applicable Servicer. The Trust
Fund was created, and the Mortgage Loans are to be serviced, pursuant to the
Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class X-P], [Class A-J], [Class B], [Class C], [Class D],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P], [Class R] and [Class LR]
Certificates (together with the [Class X-C] Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
X-C-3
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in [__________] 20[__] (each such date, a "Distribution
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 X-C]
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class X-C] Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Notional Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with
X-C-4
respect thereto. If within one year after the second notice not all of such
Certificates shall have been surrendered for cancellation, the Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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
X-C-5
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be
X-C-6
defective or inconsistent with any other provisions herein or therein; (iii) to
amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add
X-C-7
to any of its provisions to such extent as shall be necessary to maintain the
qualification of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as
a REMIC or the qualification of the Grantor Trust as a Grantor Trust, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder or, if applicable, any B Loan
Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
X-C-8
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate
X-C-9
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
X-C-10
IN WITNESS WHEREOF, the Trustee has caused this [Class X-C]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class X-C] Certificates referred to in the
Pooling and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
X-C-11
[Class X-C]
Notional Balance Remaining Notional Balance Notation
Date Exchanged or Transferred of this Certificate Made By
---------- ------------------------ -------------------------- -----------
__________ ________________________ __________________________ ___________
__________ ________________________ __________________________ ___________
__________ ________________________ __________________________ ___________
__________ ________________________ __________________________ ___________
__________ ________________________ __________________________ ___________
__________ ________________________ __________________________ ___________
__________ ________________________ __________________________ ___________
__________ ________________________ __________________________ ___________
__________ ________________________ __________________________ ___________
__________ ________________________ __________________________ ___________
X-C-12
EXHIBIT A-10
FORM OF [CLASS X-P] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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, AND CERTAIN OTHER ASSETS.
X-P-1
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS X-P]
[Class X-P] Pass-Through Rate: [_______]% CUSIP: [_______]
ISIN: [_______]
Original Aggregate Notional Balance of Initial Notional Balance of this
the [Class X-P] Certificates: $[_______] Certificate: $[_______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: X-P-1
[_______] 20[__]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class X-P] Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties and
held in trust by the Trustee and serviced by the applicable Servicer. The Trust
Fund was created, and the Mortgage Loans are to be serviced, pursuant to the
Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class-1,
[Class A-2], [Class A-3], [Class A-AB], [Class A-4], [Class A-1A], [Class X-C],
[Class A-J], [Class B], [Class C], [Class D], [Class E], [Class F], [Class G],
[Class H], [Class J], [Class K], [Class L], [Class M], [Class N], [Class O],
[Class P], [Class R] and [Class LR] Certificates (together with the [Class X-P]
Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business
X-P-2
Day immediately following such day, commencing in [__________] 20[__] (each such
date, a "Distribution 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 X-P] Certificates for such Distribution Date, all
as more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class X-P] Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their
X-P-3
Certificates. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders shall be paid out of such funds. If within
two years after the second notice any such Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor trustee and (ii) the termination of the
Trust Fund and distribution of such amounts to the Residual Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with the Pooling and
Servicing Agreement. Such funds held by the Trustee may be invested under
certain circumstances, and all income and gain realized from investment of such
funds shall accrue for its benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
X-P-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
X-P-5
inconsistent with the provisions of the Pooling and Servicing Agreement, or any
other change which will not adversely affect in any material respect the
interests of any Certificateholder or B Loan Noteholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel or, if solely affecting any
Certificateholder or B Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding;
X-P-6
provided, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding
X-P-7
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
X-P-8
IN WITNESS WHEREOF, the Trustee has caused this [Class X-P]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class X-P] Certificates referred to in the
Pooling and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
X-P-9
EXHIBIT A-11
FORM OF [CLASS A-J] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
A-J-1
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS A-J]
[Class A-J] Pass-Through Rate: [_______]% CUSIP: [_______]
ISIN: [_______]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class A-J] Certificates: $[_______] this Certificate: $[_______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [A-J]-1
[_______] 20[__]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class A-J] Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties and
held in trust by the Trustee and serviced by the applicable Servicer. The Trust
Fund was created, and the Mortgage Loans are to be serviced, pursuant to the
Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class X-C], [Class X-P], [Class B], [Class C], [Class D],
[Class E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P], [Class R] and [Class LR]
Certificates (together with the [Class A-J] Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business
A-J-2
Day immediately following such day, commencing in [__________] 20[__] (each such
date, a "Distribution 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 A-J] Certificates for such Distribution Date, all
as more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class A-J] Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their
A-J-3
Certificates. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders shall be paid out of such funds. If within
two years after the second notice any such Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor trustee and (ii) the termination of the
Trust Fund and distribution of such amounts to the Residual Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with the Pooling and
Servicing Agreement. Such funds held by the Trustee may be invested under
certain circumstances, and all income and gain realized from investment of such
funds shall accrue for its benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
A-J-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
A-J-5
inconsistent with the provisions of the Pooling and Servicing Agreement, or any
other change which will not adversely affect in any material respect the
interests of any Certificateholder or B Loan Noteholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel or, if solely affecting any
Certificateholder or B Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding;
A-J-6
provided, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding
A-J-7
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
A-J-8
IN WITNESS WHEREOF, the Trustee has caused this [Class A-J]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class A-J] Certificates referred to in the
Pooling and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
A-J-9
EXHIBIT A-12
FORM OF [CLASS B] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
B-1
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS B]
[Class B] Pass-Through Rate: [_______]% CUSIP: [_______]
ISIN: [_______]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class B] Certificates: $[_______] this Certificate: $[_______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [B]-1
[_______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class B] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class-1, [Class A-2], [Class A-3],
[Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A], [Class
X-C], [Class X-P], [Class A-J], [Class C], [Class D], [Class E], [Class F],
[Class G], [Class H], [Class J], [Class K], [Class L], [Class M], [Class N],
[Class O], [Class P], [Class R] and [Class LR] Certificates (together with the
[Class B] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business
B-2
Day immediately following such day, commencing in [__________] 20[__] (each such
date, a "Distribution 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 B] Certificates for such Distribution Date, all as
more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class B] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their
B-3
Certificates. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders shall be paid out of such funds. If within
two years after the second notice any such Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor trustee and (ii) the termination of the
Trust Fund and distribution of such amounts to the Residual Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with the Pooling and
Servicing Agreement. Such funds held by the Trustee may be invested under
certain circumstances, and all income and gain realized from investment of such
funds shall accrue for its benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
B-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
B-5
inconsistent with the provisions of the Pooling and Servicing Agreement, or any
other change which will not adversely affect in any material respect the
interests of any Certificateholder or B Loan Noteholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel or, if solely affecting any
Certificateholder or B Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding;
B-6
provided, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding
B-7
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
B-8
IN WITNESS WHEREOF, the Trustee has caused this [Class B]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class B] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
B-9
EXHIBIT A-13
FORM OF [CLASS C] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
C-1
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS C]
[Class C] Pass-Through Rate: [_______]% CUSIP: [_______]
ISIN: [_______]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class C] Certificates: $[_______] this Certificate: $[_______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [C]-1
[_______] 20[__]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class C] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class D], [Class E], [Class
F], [Class G], [Class H], [Class J], [Class K], [Class L], [Class M], [Class N],
[Class O], [Class P], [Class R] and [Class LR] Certificates (together with the
[Class C] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business
C-2
Day immediately following such day, commencing in [__________] 20[__] (each such
date, a "Distribution 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 C] Certificates for such Distribution Date, all as
more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class C] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their
C-3
Certificates. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders shall be paid out of such funds. If within
two years after the second notice any such Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor trustee and (ii) the termination of the
Trust Fund and distribution of such amounts to the Residual Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with the Pooling and
Servicing Agreement. Such funds held by the Trustee may be invested under
certain circumstances, and all income and gain realized from investment of such
funds shall accrue for its benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
C-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
C-5
inconsistent with the provisions of the Pooling and Servicing Agreement, or any
other change which will not adversely affect in any material respect the
interests of any Certificateholder or B Loan Noteholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel or, if solely affecting any
Certificateholder or B Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding;
C-6
provided, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding
C-7
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
C-8
IN WITNESS WHEREOF, the Trustee has caused this [Class C]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class C] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
C-9
EXHIBIT A-14
FORM OF [CLASS D] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
D-1
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS D]
[Class D] Pass-Through Rate: [_______]% CUSIP: [_______]
ISIN: [_______]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class D] Certificates: $[_______] this Certificate: $[_______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [D]-1
[_______] 20[__]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class D] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class E], [Class
F], [Class G], [Class H], [Class J], [Class K], [Class L], [Class M], [Class N],
[Class O], [Class P], [Class R] and [Class LR] Certificates (together with the
[Class D] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business
D-2
Day immediately following such day, commencing in [__________] 20[__] (each such
date, a "Distribution 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 D] Certificates for such Distribution Date, all as
more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges
as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class D] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their
D-3
Certificates. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders shall be paid out of such funds. If within
two years after the second notice any such Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of (i) its
termination as Trustee under the Pooling and Servicing Agreement and the
transfer of such amounts to a successor trustee and (ii) the termination of the
Trust Fund and distribution of such amounts to the Residual Certificateholders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with the Pooling and
Servicing Agreement. Such funds held by the Trustee may be invested under
certain circumstances, and all income and gain realized from investment of such
funds shall accrue for its benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
D-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
D-5
inconsistent with the provisions of the Pooling and Servicing Agreement, or any
other change which will not adversely affect in any material respect the
interests of any Certificateholder or B Loan Noteholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel or, if solely affecting any
Certificateholder or B Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding;
D-6
provided, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding
D-7
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
D-8
IN WITNESS WHEREOF, the Trustee has caused this [Class D]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class D] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
D-9
EXHIBIT A-15
FORM OF [CLASS E]
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST
E-1
ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR
IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS [CLASS E] CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
E-2
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS E]
[Class E] Pass-Through Rate: Weighted CUSIP: [_______](1) [_______](2)
Average Net Mortgage Pass-Through Rate
minus [_______]% ISIN: [_______](1) [_______](2)
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class E] Certificates: $[_______] this Certificate: $[_______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [E]-1
[_______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class E] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class
F], [Class G], [Class H], [Class J], [Class K], [Class L], [Class M], [Class N],
[Class O], [Class P], [Class R] and [Class LR] Certificates (together with the
[Class E] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
E-3
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in [__________] 20[__] (each such date, a "Distribution
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 E] Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the
Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class E] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with
E-4
respect thereto. If within one year after the second notice not all of such
Certificates shall have been surrendered for cancellation, the Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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
E-5
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be
E-6
defective or inconsistent with any other provisions herein or therein; (iii) to
amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add
E-7
to any of its provisions to such extent as shall be necessary to maintain the
qualification of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as
a REMIC or the qualification of the Grantor Trust as a Grantor Trust, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder or, if applicable, any B Loan
Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
E-8
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate
E-9
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
E-10
IN WITNESS WHEREOF, the Trustee has caused this [Class E]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class E] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
E-11
[Class E]
Schedule A
Certificate Balance Remaining Certificate Notation
Date Exchanged or Transferred Balance of this Certificate Made By
---------- ------------------------ --------------------------- ----------
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
E-12
EXHIBIT A-16
FORM OF [CLASS F]
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST
F-1
ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR
IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS [CLASS F] CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
F-2
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS F]
[Class F] Pass-Through Rate: Weighted CUSIP: [______](2) [______](1)
Average Net Mortgage Pass-Through Rate
[______]% ISIN: [______](2) [______](1)
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class F] Certificates: $[______] this Certificate:
$[__________](2) $[______](1)
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [F]-1
[______] 20[__]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class F] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class
E], [Class G], [Class H], [Class J], [Class K], [Class L], [Class M], [Class N],
[Class O], [Class P], [Class R] and [Class LR] Certificates (together with the
[Class F] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
F-3
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in [__________] 20[__] (each such date, a "Distribution
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 F] Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the
Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class F] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with
F-4
respect thereto. If within one year after the second notice not all of such
Certificates shall have been surrendered for cancellation, the Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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
F-5
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be
F-6
defective or inconsistent with any other provisions herein or therein; (iii) to
amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add
F-7
to any of its provisions to such extent as shall be necessary to maintain the
qualification of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as
a REMIC or the qualification of the Grantor Trust as a Grantor Trust, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder or, if applicable, any B Loan
Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
F-8
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate
F-9
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
F-10
IN WITNESS WHEREOF, the Trustee has caused this [Class F]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class F] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
F-11
[Class F]
Schedule A
Certificate Balance Remaining Certificate Notation
Date Exchanged or Transferred Balance of this Certificate Made By
---------- ------------------------ --------------------------- ----------
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
F-12
EXHIBIT A-17
FORM OF [CLASS G]
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST
G-1
ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR
IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS [CLASS G] CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
G-2
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS G]
[Class G] Pass-Through Rate: Weighted CUSIP: [______](2) [______]
Average Net Mortgage Pass-Through Rate
[______]% ISIN: [______](2) [______]
Initial Certificate Balance of
Original Aggregate Certificate Balance of this Certificate: $[______](2)
the [Class G] Certificates: $[______] $[______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [G]-1
[______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class G] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class
E], [Class F], [Class H], [Class J], [Class K], [Class L], [Class M], [Class N],
[Class O], [Class P], [Class R] and [Class LR] Certificates (together with the
[Class G] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
G-3
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in [__________] 20[__] (each such date, a "Distribution
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 G] Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the
Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class G] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with
G-4
respect thereto. If within one year after the second notice not all of such
Certificates shall have been surrendered for cancellation, the Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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
G-5
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be
G-6
defective or inconsistent with any other provisions herein or therein; (iii) to
amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add
G-7
to any of its provisions to such extent as shall be necessary to maintain the
qualification of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as
a REMIC or the qualification of the Grantor Trust as a Grantor Trust, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder or, if applicable, any B Loan
Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
G-8
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate
G-9
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
G-10
IN WITNESS WHEREOF, the Trustee has caused this [Class G]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class G] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
G-11
[Class G]
Schedule A
Certificate Balance Remaining Certificate Notation
Date Exchanged or Transferred Balance of this Certificate Made By
---------- ------------------------ --------------------------- ----------
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
G-12
EXHIBIT A-18
FORM OF [CLASS H]
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST
H-1
ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR
IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS [CLASS H] CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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.](2)
----------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
H-2
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS H]
[Class H] Pass-Through Rate: Weighted CUSIP: [______](2) [______]
Average Net Mortgage Pass-Through Rate
[______]% ISIN: [______](2) [______]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the [Class H] Certificates: $[______] this Certificate:
$[__________](2) $[______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [H]-1
[______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class H] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class
E], [Class F], [Class G], [Class J], [Class K], [Class L], [Class M], [Class N],
[Class O], [Class P], [Class R] and [Class LR] Certificates (together with the
[Class H] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
H-3
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in [__________] 20[__] (each such date, a "Distribution
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 H] Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the
Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class H] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with
H-4
respect thereto. If within one year after the second notice not all of such
Certificates shall have been surrendered for cancellation, the Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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
H-5
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be
H-6
defective or inconsistent with any other provisions herein or therein; (iii) to
amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add
H-7
to any of its provisions to such extent as shall be necessary to maintain the
qualification of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as
a REMIC or the qualification of the Grantor Trust as a Grantor Trust, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder or, if applicable, any B Loan
Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
H-8
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate
H-9
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
H-10
IN WITNESS WHEREOF, the Trustee has caused this [Class H]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class H] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
H-11
[Class H]
Schedule A
Certificate Balance Remaining Certificate Notation
Date Exchanged or Transferred Balance of this Certificate Made By
---------- ------------------------ --------------------------- ----------
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
X-00
XXXXXXX X-00
FORM OF [CLASS J]
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST
J-1
ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR
IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS [CLASS J] CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, OR OTHER PLAN 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 COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
J-2
IN THE FORM ATTACHED TO THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, SUCH ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES
OR AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO,
THE DEPOSITOR, THE TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS I AND III OF
PTCE 95-60, OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
J-3
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS J]
[Class J] Pass-Through Rate: [The lesser CUSIP: [______](2) [______]
of (i) [______]% and (ii) the Weighted
Average Net Mortgage Pass-Through Rate] ISIN: [______](2) [______]
Initial Certificate Balance of
Original Aggregate Certificate Balance of this Certificate: $_________](2)
the [Class J] Certificates: $[______] $[______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [J]-1
[______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class J] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class
E], [Class F], [Class G], [Class H], [Class K], [Class L], [Class M], [Class N],
[Class O], [Class P], [Class R] and [Class LR] Certificates (together with the
[Class J] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
J-4
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in [__________] 20[__] (each such date, a "Distribution
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 J] Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the
Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class J] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with
J-5
respect thereto. If within one year after the second notice not all of such
Certificates shall have been surrendered for cancellation, the Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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
J-6
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be
J-7
defective or inconsistent with any other provisions herein or therein; (iii) to
amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add
J-8
to any of its provisions to such extent as shall be necessary to maintain the
qualification of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as
a REMIC or the qualification of the Grantor Trust as a Grantor Trust, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder or, if applicable, any B Loan
Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
J-9
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate
J-10
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
J-11
IN WITNESS WHEREOF, the Trustee has caused this [Class J]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class J] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
J-12
[Class J]
Schedule A
Certificate Balance Remaining Certificate Notation
Date Exchanged or Transferred Balance of this Certificate Made By
---------- ------------------------ --------------------------- ----------
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
J-13
EXHIBIT A-20
FORM OF [CLASS K]
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST
K-1
ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR
IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS [CLASS K] CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, OR OTHER PLAN 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 COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
K-2
IN THE FORM ATTACHED TO THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, SUCH ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES
OR AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO,
THE DEPOSITOR, THE TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS I AND III OF
PTCE 95-60, OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
K-3
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS K]
[Class K] Pass-Through Rate: [The lesser CUSIP: [______](2) [______]
of (i) [______]% and (ii) the Weighted
Average Net Mortgage Pass-Through Rate] ISIN: [______](2) [______]
Initial Certificate Balance of
Original Aggregate Certificate Balance of this Certificate:
the [Class K] Certificates: $[______] $[_________](2) $[______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [K]-1
[______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class K] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class
E], [Class F], [Class G], [Class H], [Class J], [Class L], [Class M], [Class N],
[Class O], [Class P], [Class R] and [Class LR] Certificates (together with the
[Class K] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
K-4
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in [__________] 20[__] (each such date, a "Distribution
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 K] Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the
Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class K] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with
K-5
respect thereto. If within one year after the second notice not all of such
Certificates shall have been surrendered for cancellation, the Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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
K-6
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be
K-7
defective or inconsistent with any other provisions herein or therein; (iii) to
amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add
K-8
to any of its provisions to such extent as shall be necessary to maintain the
qualification of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as
a REMIC or the qualification of the Grantor Trust as a Grantor Trust, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder or, if applicable, any B Loan
Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
K-9
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate
K-10
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
K-11
IN WITNESS WHEREOF, the Trustee has caused this [Class K]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class K] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
K-12
[Class K]
Schedule A
Certificate Balance Remaining Certificate Notation
Date Exchanged or Transferred Balance of this Certificate Made By
---------- ------------------------ --------------------------- ----------
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
K-13
EXHIBIT A-21
FORM OF [CLASS L]
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST
L-1
ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR
IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS [CLASS L] CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, OR OTHER PLAN 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 COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
L-2
IN THE FORM ATTACHED TO THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, SUCH ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES
OR AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO,
THE DEPOSITOR, THE TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS I AND III OF
PTCE 95-60, OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
----------
(1)For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
L-3
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS L]
[Class L] Pass-Through Rate: [The lesser CUSIP: [______](2) [______]
of (i) [______]% and (ii) the Weighted
Average Net Mortgage Pass-Through Rate] ISIN: [______](2) [______]
Initial Certificate Balance of
Original Aggregate Certificate Balance of this Certificate:
the [Class L] Certificates: $[______] $[_________](2) $[______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [L]-1
[______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class L] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class
E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class M], [Class N],
[Class O], [Class P], [Class R] and [Class LR] Certificates (together with the
[Class L] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
L-4
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in [__________] 20[__] (each such date, a "Distribution
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 L] Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the
Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class L] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with
L-5
respect thereto. If within one year after the second notice not all of such
Certificates shall have been surrendered for cancellation, the Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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
L-6
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be
L-7
defective or inconsistent with any other provisions herein or therein; (iii) to
amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add
L-8
to any of its provisions to such extent as shall be necessary to maintain the
qualification of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as
a REMIC or the qualification of the Grantor Trust as a Grantor Trust, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder or, if applicable, any B Loan
Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
L-9
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate
L-10
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
L-11
IN WITNESS WHEREOF, the Trustee has caused this [Class L]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class L] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
L-12
[Class L]
Schedule A
Certificate Balance Remaining Certificate Notation
Date Exchanged or Transferred Balance of this Certificate Made By
---------- ------------------------ --------------------------- ----------
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
X-00
XXXXXXX X-00
FORM OF [CLASS M]
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST
M-1
ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR
IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS [CLASS M] CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, OR OTHER PLAN 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 COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
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IN THE FORM ATTACHED TO THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, SUCH ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES
OR AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO,
THE DEPOSITOR, THE TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS I AND III OF
PTCE 95-60, OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
M-3
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS M]
[Class M] Pass-Through Rate: [The lesser CUSIP: [______](2) [______]
of (i) [______]% and (ii) the Weighted
Average Net Mortgage Pass-Through Rate] ISIN: [______](2) [______]
Initial Certificate Balance of
Original Aggregate Certificate Balance of this Certificate:
the [Class M] Certificates: $[______] $[_________](2) $[______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [M]-1
[______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class M] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class
E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L], [Class N],
[Class O], [Class P], [Class R] and [Class LR] Certificates (together with the
[Class M] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
M-4
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in [__________] 20[__] (each such date, a "Distribution
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 M] Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the
Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class M] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with
M-5
respect thereto. If within one year after the second notice not all of such
Certificates shall have been surrendered for cancellation, the Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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
M-6
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be
M-7
defective or inconsistent with any other provisions herein or therein; (iii) to
amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add
M-8
to any of its provisions to such extent as shall be necessary to maintain the
qualification of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as
a REMIC or the qualification of the Grantor Trust as a Grantor Trust, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder or, if applicable, any B Loan
Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
M-9
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate
M-10
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
M-11
IN WITNESS WHEREOF, the Trustee has caused this [Class M]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class M] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
M-12
[Class M]
Schedule A
Certificate Balance Remaining Certificate Notation
Date Exchanged or Transferred Balance of this Certificate Made By
---------- ------------------------ --------------------------- ----------
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
X-00
XXXXXXX X-00
FORM OF [CLASS N]
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST
N-1
ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR
IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS [CLASS N] CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, OR OTHER PLAN 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 COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
N-2
IN THE FORM ATTACHED TO THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, SUCH ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES
OR AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO,
THE DEPOSITOR, THE TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS I AND III OF
PTCE 95-60, OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
N-3
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS N]
[Class N] Pass-Through Rate: The lesser CUSIP: [______](2) [______]
of [(i) [______]% and (ii) the Weighted
Average Net Mortgage Pass-Through Rate] ISIN: [______](2) [______]
Initial Certificate Balance of
Original Aggregate Certificate Balance of this Certificate:
the [Class N] Certificates: $[______] $[_________](2) $[______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [N]-1
[______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class N] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class
E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L], [Class M],
[Class O], [Class P], [Class R] and [Class LR] Certificates (together with the
[Class N] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
N-4
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in [__________] 20[__] (each such date, a "Distribution
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 N] Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the
Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class N] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with
N-5
respect thereto. If within one year after the second notice not all of such
Certificates shall have been surrendered for cancellation, the Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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
N-6
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be
N-7
defective or inconsistent with any other provisions herein or therein; (iii) to
amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add
N-8
to any of its provisions to such extent as shall be necessary to maintain the
qualification of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as
a REMIC or the qualification of the Grantor Trust as a Grantor Trust, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder or, if applicable, any B Loan
Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
N-9
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate
N-10
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
N-11
IN WITNESS WHEREOF, the Trustee has caused this [Class N]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class N] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
N-12
[Class N]
Schedule A
Certificate Balance Remaining Certificate Notation
Date Exchanged or Transferred Balance of this Certificate Made By
---------- ------------------------ --------------------------- ----------
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
N-13
EXHIBIT A-24
FORM OF [CLASS O]
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST
O-1
ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR
IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS [CLASS O] CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, OR OTHER PLAN 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 COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
O-2
IN THE FORM ATTACHED TO THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, SUCH ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES
OR AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO,
THE DEPOSITOR, THE TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS I AND III OF
PTCE 95-60, OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
O-3
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS O]
[Class O] Pass-Through Rate: The lesser CUSIP: [______](2) [______]
of [(i) [______]% and (ii) the Weighted
Average Net Mortgage Pass-Through Rate] ISIN: [______](2) [______]
Initial Certificate Balance of
Original Aggregate Certificate Balance of this Certificate: $_________](2)
the [Class O] Certificates: $[______] $[______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: O-1
[______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class O] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class
E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L], [Class M],
[Class N], [Class P], [Class R] and [Class LR] Certificates (together with the
[Class O] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
O-4
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in [__________] 20[__] (each such date, a "Distribution
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 O] Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the
Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class O] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with
O-5
respect thereto. If within one year after the second notice not all of such
Certificates shall have been surrendered for cancellation, the Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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
O-6
such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be
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defective or inconsistent with any other provisions herein or therein; (iii) to
amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add
O-8
to any of its provisions to such extent as shall be necessary to maintain the
qualification of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as
a REMIC or the qualification of the Grantor Trust as a Grantor Trust, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder or, if applicable, any B Loan
Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
O-9
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate
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shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
O-11
IN WITNESS WHEREOF, the Trustee has caused this [Class O]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class O] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
O-12
[Class O]
Schedule A
Certificate Balance Remaining Certificate Notation
Date Exchanged or Transferred Balance of this Certificate Made By
---------- ------------------------ --------------------------- ----------
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
X-00
XXXXXXX X-00
FORM OF [CLASS P]
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST
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ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR
IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS [CLASS P] CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, OR OTHER PLAN 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 COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
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IN THE FORM ATTACHED TO THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, SUCH ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES
OR AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO,
THE DEPOSITOR, THE TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS I AND III OF
PTCE 95-60, OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
P-3
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS P]
[Class P] Pass-Through Rate: The lesser CUSIP: [______](2) [______]
of [(i) [______]% and (ii) the Weighted
Average Net Mortgage Pass-Through Rate] ISIN: [______](2) [______]
Initial Certificate Balance of
Original Aggregate Certificate Balance of this Certificate:
the [Class P] Certificates: $[______] $[_________](2) $[______]
First Distribution Date: Cut-off Date:
[__________________], 20[__] [__________________], 20[__]
Scheduled Final Distribution Date: No.: [P]-1
[______] 20[_]
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the [Class P] Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class
E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L], [Class M],
[Class N], [Class O], [Class R] and [Class LR] Certificates (together with the
[Class P] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
P-4
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in [__________] 20[__] (each such date, a "Distribution
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 P] Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the
Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the [Class P] Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with
P-5
respect thereto. If within one year after the second notice not all of such
Certificates shall have been surrendered for cancellation, the Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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
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such interest belongs to the related Borrower). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Special Servicer,
the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of
them shall be affected by notice or knowledge to the contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be
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defective or inconsistent with any other provisions herein or therein; (iii) to
amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any B Loan Noteholders
without the consent of such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add
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to any of its provisions to such extent as shall be necessary to maintain the
qualification of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as
a REMIC or the qualification of the Grantor Trust as a Grantor Trust, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder or, if applicable, any B Loan
Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
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(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate
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shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee has caused this [Class P]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class P] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
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[Class P]
Schedule A
Certificate Balance Remaining Certificate Notation
Date Exchanged or Transferred Balance of this Certificate Made By
---------- ------------------------ --------------------------- ----------
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
__________ ________________________ ___________________________ __________
P-13
EXHIBIT A-26
FORM OF [CLASS R] CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE CODE. A TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION
5.02(l) 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 WILL NOT CAUSE INCOME WITH RESPECT TO THIS CERTIFICATE TO BE
ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE
MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S.
PERSON, (C) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS
TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (D) IT INTENDS
TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE.
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. IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST",
AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), 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
PAY A SPECIFIED AMOUNT TO THE PROPOSED TRANSFEREE OR TRANSFER TO AN ELIGIBLE
TRANSFEREE AS PROVIDED IN REGULATIONS.
R-1
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE UPPER-TIER REMIC AND TO THE
APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS
PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF
CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED IN
SECTION 3(32) OF ERISA, OR OTHER PLAN 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 COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS
R-2
OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED TO DELIVER A LETTER IN THE FORM ATTACHED TO
THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT
EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE
LAWS.
R-3
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS R]
No.: [R]-1 Percentage Interest: 100%
This certifies that Wachovia is the registered owner of the
Percentage Interest evidenced by this Certificate in the Trust Fund. The [Class
R] Certificateholder is not entitled to interest or principal distributions. The
[Class R] Certificateholder will be entitled to receive the proceeds of the
remaining assets of the Upper-Tier REMIC, if any, on the Final Scheduled
Distribution Date for the Certificates, after distributions in respect of any
accrued but unpaid interest on the Certificates and after distributions in
reduction of principal balance have reduced the principal balances of the
Certificates to zero. It is not anticipated that there will be any assets
remaining in the Upper-Tier REMIC or Trust Fund on the Final Scheduled
Distribution Date following the distributions on the Regular Certificates. The
Trust Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial, multifamily and manufactured housing
properties and held in trust by the Trustee and serviced by the applicable
Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced,
pursuant to the Pooling and Servicing Agreement (as defined below). The Holder
of this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class X-C], [Class X-P], [Class A-J], [Class B], [Class
C], [Class D], [Class E], [Class F], [Class G], [Class H], [Class J], [Class K],
[Class L], [Class M], [Class N], [Class O], [Class P] and [Class LR]
Certificates (together with the [Class R] Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar
R-4
month preceding the month in which such Distribution Date occurs or, if such day
is not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in [__________] 20[__], the Record
Date will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date, by wire transfer of immediately available
funds to the account of such Holder at a bank or other entity located in the
United States and having appropriate facilities therefor provided that such
Holder shall have provided the Paying Agent with wire instructions in writing at
least five Business Days prior to the related Record Date, or, otherwise, by
check mailed by first-class mail to the address set forth therefor in the
Certificate Register. The final distribution on each Certificate shall be made
in like manner, but only upon presentment and surrender of such Certificate at
the office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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
R-5
respect of any REO Property (to the extent of the Trust Fund's interest
therein); (v) any Assignments of Leases, Rents and Profits and any security
agreements (to the extent of the Trust Fund's interest therein); (vi) any
indemnities or guaranties given as additional security for any Mortgage Loans
(to the extent of the Trust Fund's interest therein); (vii) all assets deposited
in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts, and Reserve
Accounts (to the extent of the Trust Fund's interest therein), (viii) Loss of
Value Reserve Fund amounts on deposit in the applicable Collection Account
attributable to the Mortgage Loans as identified on the Trust Ledger, the Loan
Combination Collection Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Distribution Accounts, any Excess Liquidation Proceeds Account (to
the extent of the Trust Fund's interest therein and specifically excluding any
interest of any B Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any B Loan Noteholder therein), including any
reinvestment income, as applicable; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) all insurance policies with respect to
the Mortgage Loans and the Mortgaged Properties (to the extent of the Trust
Fund's interest therein); (xi) the rights and remedies under the Mortgage Loan
Purchase Agreements relating to document delivery requirements with respect to
the Mortgage Loans and the representations and warranties of the related
Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Loan REMIC Regular
Interest and the Loan REMIC Residual Interest; (xiii) the Lower-Tier Regular
Interests; and (xiv) 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). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the
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Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates
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representing all of the Percentage Interests of the Class or
Classes affected thereby, or which are required to be
distributed to any B Loan Noteholders without the consent of
such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month
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preceding such Anticipated Termination Date (less any
P&I Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
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The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
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IN WITNESS WHEREOF, the Trustee has caused this [Class R]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class R] Certificates referred to in the Pooling
and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
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EXHIBIT A-27
FORM OF [CLASS LR] CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF A "RESIDUAL INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT
CONDUITS" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE CODE. A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS
DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(l) 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 WILL NOT CAUSE
INCOME WITH RESPECT TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN
PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE
INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S. PERSON, (C) IT HAS
HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE TO PAY
ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (D) IT INTENDS TO PAY ANY TAXES
ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. 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. IF THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST", AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-1(c), 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 PAY A SPECIFIED AMOUNT TO THE
PROPOSED TRANSFEREE OR TRANSFER TO AN ELIGIBLE TRANSFEREE AS PROVIDED IN
REGULATIONS.
LR-1
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE LOWER-TIER REMIC AND THE LOAN
REMIC AND TO THE APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR
THE TAX MATTERS PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING
AGREEMENT TO PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF
SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED IN
SECTION 3(32) OF ERISA, OR OTHER PLAN 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 COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS
LR-2
OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL
BE REQUIRED TO DELIVER A LETTER IN THE FORM ATTACHED TO THE POOLING AND
SERVICING AGREEMENT TO SUCH EFFECT.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE SERVICERS
AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT
EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE
LAWS.
LR-3
COMM [______] - [____] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, [CLASS LR]
No.: [LR]-1 Percentage Interest: 100%
This certifies that Wachovia is the registered owner of the
Percentage Interest evidenced by this Certificate in the Trust Fund. The [Class
LR] Certificateholder is not entitled to interest or principal distributions.
The [Class LR] Certificateholder will be entitled to receive the proceeds of the
remaining assets of the Lower-Tier REMIC, if any, on the Final Scheduled
Distribution Date for the Certificates, after distributions in respect of any
accrued but unpaid interest on the Certificates and after distributions in
reduction of principal balance have reduced the principal balances of the
Lower-Tier Regular Interests to zero. It is not anticipated that there will be
any assets remaining in the Lower-Tier REMIC or Trust Fund on the Final
Scheduled Distribution Date following the distributions on the Lower-Tier
Regular Interests. The Trust Fund, described more fully below, consists
primarily of a pool of Mortgage Loans secured by first liens on commercial,
multifamily and manufactured housing properties and held in trust by the Trustee
and serviced by the applicable Servicer. The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the [Class A-1], [Class A-2], [Class
A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class A-5B], [Class A-1A],
[Class X-C], [Class X-P], [Class A-J], [Class B], [Class C], [Class D], [Class
E], [Class F], [Class G], [Class H], [Class J], [Class K], [Class L], [Class M],
[Class N], [Class O], [Class P] and [Class R] Certificates (together with the
[Class LR] Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of [__________________],
20[__] (the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, [_____________________], as servicer
(the "Servicer"), [_____________________], as special servicer (the "Special
Servicer") and [_____________________], as Trustee (the "Trustee") and Paying
Agent. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
LR-4
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in [__________] 20[__], the Record Date will
be the Closing Date. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, 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 Trustee 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. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing 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) any
LR-5
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Loan Combination Collection Account
(to the extent of the Trust Fund's interest therein and specifically excluding
any interest of any B Loan Noteholder therein), the Distribution Accounts, any
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any B Loan Noteholder
therein), the Interest Reserve Account, any REO Account (to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any B
Loan Noteholder therein), including any reinvestment income, as applicable; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
all insurance policies with respect to the Mortgage Loans and the Mortgaged
Properties (to the extent of the Trust Fund's interest therein); (xi) the rights
and remedies under the Mortgage Loan Purchase Agreements relating to document
delivery requirements with respect to the Mortgage Loans and the representations
and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans;
(xii) the Loan REMIC Regular Interest and the Loan REMIC Residual Interest;
(xiii) the Lower-Tier Regular Interests; and (xiv) 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). As provided in the Pooling and
Servicing Agreement, withdrawals may be made from certain of the above-accounts
for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
[Article V] of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
[Article V] of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with [Article V] of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the
LR-6
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h)] of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Servicers, the Special Servicer and
the Trustee without the consent of any of the Certificateholders or the B Loan
Noteholders, (i) to cure any ambiguity or to correct any error; (ii) to cause
the provisions herein to conform or be consistent with or in furtherance of the
statements made in the Prospectus or the Private Placement Memorandum, in each
case, with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement or to correct or supplement any provisions herein or therein which may
be defective or inconsistent with any other provisions herein or therein; (iii)
to amend any provision of the Pooling and Servicing Agreement to the extent
necessary or desirable to maintain the rating or ratings assigned to each of the
Classes of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not inconsistent
with the provisions of the Pooling and Servicing Agreement, or any other change
which will not adversely affect in any material respect the interests of any
Certificateholder or B Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or B Loan Noteholder, confirmation in writing from each Rating Agency then
rating any Certificates that such amendment will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates. In no event shall any such amendment cause the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the applicable Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each B Loan Noteholder
affected thereby 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 modifying in any manner the rights of the Certificateholders or the
B Loan Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates
LR-7
representing all of the Percentage Interests of the Class or
Classes affected thereby, or which are required to be
distributed to any B Loan Noteholders without the consent of
such B Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected B Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the B Loan Noteholders, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any B Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Servicer, and if the Servicer does not exercise such option, the
Special Servicer, may effect an early termination of the Trust Fund, upon not
less than 30 days' prior Notice of Termination given to the Trustee, the Special
Servicer and the Servicers any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and the Trust's interest in all
property acquired in respect of any Mortgage Loan, at a purchase price, payable
in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month
LR-8
preceding such Anticipated Termination Date (less any
P&I Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of
a date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicers as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the [Class
A-1], [Class A-2], [Class A-3], [Class A-4], [Class A-AB], [Class A-5A], [Class
A-5B], [Class A-1A], [Class A-J], [Class B], [Class C] and [Class D]
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the [Class R] and [Class LR]
Certificates), including the [Class X-C] and [Class X-P] Certificates, for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (ii) of [Section 9.01(a)] and [Section 9.01(g)] of the
Pooling and Servicing Agreement by giving written notice to all the parties to
the Pooling and Servicing Agreement no later than 60 days prior to the
anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to [Section 9.01(c)] of the Pooling and Servicing Agreement shall be borne by
the party exercising its purchase rights thereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to [Section 9.01(c)] of the Pooling and Servicing Agreement.
LR-9
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the B Loan Noteholders
of all amounts held by or on behalf of the Trustee and applicable Servicer, as
the case may be, required under the Pooling and Servicing Agreement to be so
paid on the Distribution Date following the earlier to occur of (i) the purchase
of the Mortgage Loans and all other property held by the Trust Fund in
accordance with [Section 9.01(c)] of the Pooling and Servicing Agreement; (ii)
the exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with [Section 9.01(g)] of the Pooling and Servicing
Agreement; and (iii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund; provided, however, that in no event shall
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 United
Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
LR-10
IN WITNESS WHEREOF, the Trustee has caused this [Class LR]
Certificate to be duly executed.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Trustee
By:_____________________________________
Authorized Officer
Certificate of Authentication
This is one of the [Class LR] Certificates referred to in the
Pooling and Servicing Agreement.
Dated: [________________], 20[__]
[______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_____________________________________
Authorized Officer
LR-11
EXHIBIT B-1
MORTGAGE LOAN SCHEDULE
[To be inserted]
B-1-1
EXHIBIT B-2
SERVICING FEE RATE SCHEDULE
[To Be Inserted]
B-2-1
EXHIBIT C-1
FORM OF TRANSFEREE AFFIDAVIT
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
, being first duly sworn, deposes and
says:
1. That he/she is a ___________________ of ___________________ (the
"Purchaser"), a duly organized and existing under the laws of the State of
___________________ on behalf of which he/she makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is .
3. That the Purchaser of the Commercial Mortgage Pass-Through
Certificates, COMM [______]-[___], Class [R] [LR] (the "Class [R] [LR]
Certificate") is a Permitted Transferee (as defined in Article I of the Pooling
and Servicing Agreement dated as of [_______________] (the "Pooling and
Servicing Agreement"), entered into by [_______________], as servicer,
[_______________], as special servicer and [_______________], as trustee and
paying agent, or is acquiring the Class [R] [LR] Certificate for the account of,
or as agent (including as a broker, nominee, or other middleman) for, a
Permitted Transferee and has received from such person or entity an affidavit
substantially in the form of this affidavit.
4. That the Purchaser historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Purchaser intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Purchaser 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 Purchaser will not transfer the Class [R] [LR]
Certificate to any person or entity from which the Purchaser has not received an
affidavit substantially in the form of this affidavit or as to which the
Purchaser has actual knowledge that the requirements set forth in paragraph 3,
paragraph 4 or paragraph 7 hereof are not satisfied or that the Purchaser has
reason to know does not satisfy the requirements set forth in paragraph 4
hereof.
7. That the Purchaser is not a Disqualified Non-U.S. Person and is
not purchasing the Class [R] [LR] Certificate for the account of, or as an agent
(including as a broker, nominee or other middleman) for, a Disqualified Non-U.S.
Person.
C-1-1
8. That the Purchaser agrees to such amendments of 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," an agent thereof, or a person that does not satisfy the
requirements of paragraph 4, paragraph 7 and paragraph 11 hereof.
9. That, if a "tax matters person" is required to be designated with
respect to the [the Upper-Tier REMIC] [the Lower-Tier REMIC and the Loan REMIC],
the Purchaser agrees to act as "tax matters person" and to perform the functions
of "tax matters partner" of the [the Upper-Tier REMIC] [the Lower-Tier REMIC and
the Loan REMIC] pursuant to [Section 4.04] of the Pooling and Servicing
Agreement, and agrees to the irrevocable designation of the Trustee as the
Purchaser's agent in performing the function of "tax matters person" and "tax
matters partner."
10. The Purchaser agrees to be bound by and to abide by the
provisions of [Section 5.02] of the Pooling and Servicing Agreement concerning
registration of the transfer and exchange of the Class [R] [LR] Certificate.
11. The Purchaser agrees not to transfer the Class [R] [LR]
Certificate such that the income therefrom would be attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of the Purchaser or any other U.S. Person.
12. Check the applicable paragraph:
|_| The present value of the anticipated tax liabilities
associated with holding the Class [R] [LR] Certificate, as
applicable, does not exceed the sum of:
(i) the present value of any consideration given to the
Purchaser to acquire such Class [R] [LR] Certificate;
(ii) the present value of the expected future distributions
on such Certificate; and
(iii) the present value of the anticipated tax savings
associated with holding such Class [R] [LR] Certificate
as the related REMIC generates losses.
For purposes of this calculation, (i) the Purchaser is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Purchaser has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Purchaser.
C-1-2
|_| The transfer of the Class [R] [LR] Certificate complies with
U.S. Treasury Regulations Sections 1.860E-1(c)(5) and (6) and,
accordingly,
(i) the Purchaser is an "eligible corporation," as defined
in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i),
as to which income from the Class [R] [LR] Certificate
will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Purchaser's two fiscal years preceding the year of the
transfer, the Purchaser had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Purchaser within the meaning of U.S.
Treasury Regulations Section 1.860E-1(c)(6)(ii)) in
excess of $100 million and net assets in excess of $10
million;
(iii) the Purchaser will transfer the Class [R] [LR]
Certificate only to another "eligible corporation," as
defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations; and
(iv) the Purchaser determined the consideration paid to it to
acquire the Class [R] [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
Purchaser) that it has determined in good faith.
|_| None of the above.
Capitalized terms used but not defined herein have the respective
meanings ascribed to such terms in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf by its this day of _______, 20___.
[Purchaser]
By:
-----------------------------------
Name:
Title:
C-1-3
Personally appeared before me the above-named __________ , known or
proved to me to be the same person who executed the foregoing instrument and to
be the __________ of the Purchaser, 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
Purchaser.
Subscribed and sworn before me this ___ day of _______, 20___.
----------------------------------
NOTARY PUBLIC
COUNTY OF ____________________________
STATE OF _______________________________
My commission expires the day of , 200 .
C-1-4
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
[Trustee Address]
Re: Commercial Mortgage Pass-Through Certificates, COMM [______]-
[___], Class [R][LR]
--------------------
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true or that [Transferee]
is not a Permitted Transferee (as defined in the Pooling and Servicing Agreement
defined in the attached affidavit) and has no actual knowledge or reason to know
that the information contained in paragraphs 4, 7 and 11 thereof is not true.
Very truly yours,
[Transferor]
By:
-----------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF INVESTMENT REPRESENTATION LETTER
[Trustee Address]
Deutsche Mortgage & Asset Receiving Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Transfer of Commercial Mortgage Pass-Through Certificates,
COMM [______]-[___]: Class [X-C][E][F][G][H][J][K][L][M][N][O]
[P][R][LR]
----------
Ladies and Gentlemen:
This letter is delivered pursuant to [Section 5.02] of the Pooling
and Servicing Agreement dated as of [_______________] (the "Pooling and
Servicing Agreement"), entered into by Deutsche Mortgage & Asset Receiving
Corporation, as depositor, [_______________], as servicer (the "Servicer"),
[_______________], as special servicer (the "Special Servicer"), and
[_______________], as trustee (the "Trustee") and paying agent, on behalf of the
holders of Commercial Mortgage Pass-Through Certificates, COMM [______]-[___]
(the "Certificates") in connection with the transfer by (the "Seller") to the
undersigned (the "Purchaser") of [$___ aggregate Certificate Balance][_%
Percentage Interest] of Class [X-C][E][F][G][H][J][K][L][M][N][O][P][R][LR]
Certificates, in certificated fully registered form (such registered interest,
the "Certificate"). Terms used but not defined herein shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
[For Institutional Accredited Investors only] 1. The Purchaser is an
institutional investor and an "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 the investment in the Certificate, and we and any accounts
for which we are acting are each able to bear the economic risk of our or its
investment. The Purchaser is acquiring the Certificate 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 for any costs
incurred by it in connection with this transfer.
[For Qualified Institutional Buyers only] 1. 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.
D-1-1
[For Affiliated Persons only]. 1. The Purchaser is a person involved
in the organization or operation of the issuer or an affiliate of such a person,
as defined in Rule 405 of the Securities Act of 1933, as amended (the "1933
Act").
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, or (ii) 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 (a) the receipt by the Certificate Registrar of a
letter substantially in the form hereof, (b) 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, (c)
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 (d) a written
undertaking to reimburse the Trust for any costs incurred by it in connection
with the proposed transfer. It understands that the Certificate (and any
subsequent Individual 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 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.
4. The Purchaser has reviewed the Private Placement Memorandum dated
[____________] 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.
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
an Individual 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, 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" 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 Certificate Registrar (or its
D-1-2
agent) with respect to Distributions to be made on the
Certificate(s). The Purchaser has attached hereto [(i) a duly
executed IRS Form W-8BEN (or successor form), which identifies such
Purchaser as the beneficial owner of the Certificate(s) and states
that such Purchaser is not a U.S. Person, (ii) two duly executed
copies of IRS Form W-8IMY (and all appropriate attachment or (iii)]*
two duly executed copies of IRS Form W-8ECI (or successor form),
which identify such Purchaser as the beneficial owner of the
Certificate(s) and state that interest and original issue discount
on the U.S. Securities is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS
Form W-8IMY or]* IRS Form W-8ECI[, as the case may be]*, any
applicable successor IRS forms, or such other certifications as the
Certificate Registrar may reasonably request, on or before the date
that any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a change in
the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United States
for U.S. federal income tax purposes, a corporation, 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 or any of its political
subdivisions, an estate the income of which is subject to U.S. federal income
taxation 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 United States fiduciaries 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).
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:
Account number:________________________
Institution:___________________________
(b) by mailing a check or draft to the following address:
------------------------------------------------
------------------------------------------------
------------------------------------------------
--------
* Delete for [Class R] and Class LR.
** Only to be filled out by Purchasers of Individual Certificates. Please
select (a) or (b).
D-1-3
Very truly yours,
-----------------------------------------
[The Purchaser]
By:
--------------------------------------
Name:
Title:
Dated:
X-0-0
XXXXXXX X-0
FORM OF ERISA REPRESENTATION LETTER
[Date]
[Trustee Address]
Deutsche Mortgage & Asset Receiving Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Re: Commercial Mortgage Pass-Through Certificates, COMM
[______]-[___], Class [J][K][L][M][N][O][P][R][LR]
--------------------------------------------------
Ladies and Gentlemen:
(the "Purchaser") intends to purchase from (the "Seller")
$ initial Certificate Balance or % Percentage Interest of Commercial Mortgage
Pass-Through Certificates, COMM [______]-[___], Class [J][K][L][M][N][O][P][R]
[LR], CUSIP No. [_________] (the "Certificates"), issued pursuant to the Pooling
and Servicing Agreement dated as of [_______________] (the "Pooling and
Servicing Agreement"), entered into by Deutsche Mortgage & Asset Receiving
Corporation, as depositor, [_______________], as servicer (the "Servicer"),
[_______________], as special servicer (the "Special Servicer"), and
[_______________], as trustee (the "Trustee"). All capitalized terms used herein
and not otherwise defined shall have the meaning set forth in the Pooling and
Servicing Agreement. The Purchaser hereby certifies, represents and warrants to,
and covenants with, the Depositor, the Certificate Registrar and the Trustee
that:
1. The Purchaser is not (a) an employee benefit plan or other
retirement arrangement, including an individual retirement account or a Xxxxx
plan, which is subject to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), Section 4975 of the Code, a governmental plan, as defined
in Section 3(32) of ERISA, or other plan 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 collective investment
fund in which such Plans are invested, an insurance company using assets of
separate accounts or general accounts which include assets of Plans (or which
are deemed pursuant to ERISA or any Similar Law to include assets of Plans) or
other Person acting on behalf of any such Plan or using the assets of any such
Plan, other than (except in the case of the [Class R] and [Class LR]
Certificates) an insurance company using the assets of its general account under
circumstances whereby such purchase and the subsequent holding of such
Certificate by such insurance company would be exempt from the prohibited
transaction provisions of Section 406 and 407 of ERISA and Section 4975 of the
Code under Sections I and III of PTCE 95-60, or a substantially similar
exemption under Similar Law; and
D-2-1
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or 1(b) above, except in the case of the [Class R] or [Class
LR] Certificates, which may not be transferred unless the transferee represents
it is not such a Person, such Purchaser is required to provide to the Depositor,
the Trustee and the Certificate Registrar any Opinions of Counsel, officers'
certificates or agreements as may be required by such Persons, and which
establishes to the satisfaction of the Depositor, the Trustee and the
Certificate Registrar that the purchase and holding of the Certificates by or on
behalf of a Plan will not constitute or result in a non-exempt prohibited
transaction within the meaning of Section 406 and Section 407 of ERISA or
Section 4975 of the Code or any corresponding provision of any Similar Law, and
will not subject the Depositor, the Trustee, the Servicers, the Special Servicer
or the Certificate Registrar to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or Similar
Law), which Opinions of Counsel, officers' certificates or agreements shall not
be at the expense of the Servicers, the Depositor, the Trustee or the
Certificate Registrar.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on this ____ day of _________, 20___.
Very truly yours,
[Purchaser]
By:
--------------------------------------
Name:
Title:
D-2-2
EXHIBIT E
REQUEST FOR RELEASE
[Date]
[Trustee Address]
Re: Commercial Mortgage Pass-Through Certificates, COMM [______]-[___]
Dear __________________:
In connection with the administration of the Mortgage Files held by,
or on behalf of, you as Custodian under a certain Pooling and Servicing
Agreement, dated as of [_______________] (the "Pooling and Servicing
Agreement"), entered into by [_______________], as trustee and paying agent,
Deutsche Mortgage & Asset Receiving Corporation, as depositor,
[_______________], as servicer (the "Servicer") and [_______________], as
special servicer, the undersigned hereby requests a release of the Mortgage File
(or the portion thereof specified below) held by you as Custodian 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. Such [Servicer]
[Special Servicer] hereby certifies that all amounts received in connection with
the Mortgage Loan have been or will be, following such [Servicer's] [Special
Servicer's] release of the Mortgage File, 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.
E-1
Capitalized terms used but not defined herein shall have the meaning
ascribed to them in the Pooling and Servicing Agreement.
[SERVICER] [SPECIAL SERVICER]
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
cc: [_______________]
as Trustee
[Trustee Address]
E-2
EXHIBIT F
SECURITIES LEGEND
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 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) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES 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 D-1 TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
F-1
EXHIBIT G
FORM OF REGULATION S TRANSFER CERTIFICATE
[Paying Agent/Certificate Registrar Address]
Attention: Corporate Trust Services, COMM [______]-[___]
Re: Transfer of COMM [____]-[__], Commercial Mortgage Pass-Through
Certificates, Class [ ]
--------------------- -
Ladies and Gentlemen:
This certificate is delivered pursuant to [Section 5.02] of the
Pooling and Servicing Agreement dated as of [_______________] (the "Pooling and
Servicing Agreement"), entered into by Deutsche Mortgage & Asset Receiving
Corporation, as depositor, (the "Depositor"), [_______________], as servicer
(the "Servicer"), [_______________], as special servicer (the "Special
Servicer"), and [_______________], as trustee (the "Trustee") and paying agent,
on behalf of the holders of the COMM [______]-[___], Commercial Mortgage
Pass-Through Certificates, Class [___] (the "Certificates") in connection with
the transfer by the undersigned (the "Transferor") to ______________ (the
"Transferee") of $___________________ Certificate Balance of Certificates, in
fully registered form (each, an "Individual Certificate"), or a beneficial
interest of such aggregate Certificate Balance in the Regulation S Global
Certificate (the "Global 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;]*
[(2) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither there 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 904(b) of Regulation S, as applicable; and
----------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
G-1
(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 Servicers and
the Special Servicer.
-----------------------------------------
Transferor
By:
--------------------------------------
Name:
Title:
Dated: ________________, 20__
G-2
EXHIBIT H
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE DURING THE RESTRICTED PERIOD
(Exchanges or transfers pursuant to [Section 5.02](c)(ii)(A) of
the Pooling and Servicing Agreement)
[Trustee Address]
Attention: Corporate Trust Services, COMM [______]-[___]
Re: Transfer of COMM [______]-[___] Commercial Mortgage Pass-Through
Certificates, Class [ ]
-----------------------
Reference is hereby made to the Pooling and Servicing Agreement
dated as of [_______________], (the "Pooling and Servicing Agreement"), entered
into by Deutsche Mortgage Asset & Receiving Corporation, as depositor, (the
"Depositor"), [_______________], as servicer (the "Servicer"),
[_______________], as special servicer (the "Special Servicer"), and
[_______________], as trustee (the "Trustee") and paying agent. 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 of Certificates (the "Certificates") which are held in the form of Rule
144A Global 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 Global Certificate (CUSIP No. ____________) to be held with
[Euroclear] [Clearstream]* (Common Code) through the Depositary.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the Transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any persons acting on its behalf
reasonably believed that the Transferee was outside the United States,]**
----------
* Select appropriate depository.
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
H-1
[(2) 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 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.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicers and
the Special Servicer.
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated: ________________________, 20__
H-2
EXHIBIT I
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE AFTER THE RESTRICTED PERIOD
(Exchange or transfers pursuant to
[Section 5.02](c)(ii)(B) of the Pooling and Servicing Agreement)
[Trustee Address[
Attention: Corporate Trust Services, COMM [______]-[___]
Re: Transfer of COMM [______]-[___] Commercial Mortgage Pass-Through
Certificates Class [ ]
----------------------
Reference is hereby made to the Pooling and Servicing Agreement
dated as of [_______________] (the "Pooling and Servicing Agreement"), entered
into by Deutsche Mortgage Asset & Receiving Corporation, as depositor, (the
"Depositor"), [_______________], as servicer (the "Servicer"),
[_______________], as special servicer (the "Special Servicer"), and
[_______________], as trustee (the "Trustee") and paying agent. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Pooling and Servicing Agreement.
The letter relates to U.S. $[_____________] aggregate Certificate
Balance of Certificates (the "Certificates") which are held in the form of the
Rule 144A Global 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 Global 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,]*
[(2) 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,]*
----------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
I-1
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 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 Servicers and
the Special Servicer.
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated: _______________, 20___
I-2
EXHIBIT J
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
CERTIFICATE TO RULE 144A GLOBAL CERTIFICATE
(Exchange or transfers pursuant to [Section 5.02(c)(ii)(C)]
of the Pooling and Servicing Agreement)
[Paying Agent Address]
Attention: Corporate Trust Services, COMM [______]-[___]
Re: Transfer of COMM [______]-[___] Commercial Mortgage Pass-Through
Certificates, Class [ ]
-----------------------
Reference is hereby made to the Pooling and Servicing Agreement
dated as of [_______________] (the "Pooling and Servicing Agreement"), entered
into by Deutsche Mortgage Asset & Receiving Corporation, as depositor, (the
"Depositor"), [_______________], as servicer (the "Servicer"),
[_______________], as Special Servicer, and [_______________], as trustee (the
"Trustee") and paying agent. Capitalized terms used but not defined herein shall
have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to U.S. $[____________] aggregate Certificate
Balance of Certificates (the "Certificates") which are held in the form of the
Regulation S Global Certificate (CUSIP No. ____________) with [Euroclear]
[Clearstream]* (Common Code _________) 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 Global 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 "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 an jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicers and
the Special Servicer.
----------
* Select appropriate depositary.
J-1
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated: ______________, 20__
J-2
EXHIBIT K
FORM OF DISTRIBUTION DATE STATEMENT
[To be inserted]
K-1
EXHIBIT L
FORM OF INVESTOR CERTIFICATION
Dated:
[Trustee Address]
Re: Commercial Mortgage Pass-Through Certificates,
Series COMM [______]-[___]
--------------------------
In accordance with the Pooling and Servicing Agreement, dated as of
[_______________] (the "Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, [_______________], as servicer (the
"Servicer"), [_______________], as special servicer (the "Special Servicer"),
and [_______________], as trustee (the "Trustee") and paying agent. with respect
to the above-referenced certificates (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of
the Class __ Certificates.
2. The undersigned is requesting access to the Trustee's internet
website containing certain information (the "Information") and/or is requesting
the information identified on the schedule attached hereto (also, the
"Information") pursuant to the provisions of the Agreement.
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, or access thereto, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in making an
evaluation in connection with purchasing the related Certificates, from its
accountants and attorneys, and otherwise from such governmental or banking
authorities or agencies to which the undersigned is subject), and such
Information will not, without the prior written consent of the Trustee, be
otherwise disclosed by the undersigned or by its officers, directors, partners,
employees, agents or representatives (collectively, the "Representatives") in
any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or of the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant to
Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Servicers, the Special Servicer, the Trustee and the Trust Fund
for any loss, liability or expense incurred thereby with respect to any such
breach by the undersigned or any of its Representatives.
6. Capitalized terms used but not defined herein shall have the
respective meanings assigned thereto in the Agreement.
L-1
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
-----------------------------------------
[Certificate Owner or Prospective
Purchaser]
By:
--------------------------------------
Title:
-----------------------------------
Company:
---------------------------------
Phone:
L-2
EXHIBIT M
INTENTIONALLY DELETED
M-1
EXHIBIT N
FORM OF PURCHASE OPTION NOTICE
[Servicer Address]
[Special Servicer Address]
[Trustee Address]
Re: COMM [______]-[___]
Commercial Mortgage Pass-Through Certificates
---------------------------------------------
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 [_______________],
entered into by Deutsche Mortgage & Asset Receiving Corporation, as depositor
(the "Depositor"), [_______________], as servicer (the "Servicer"),
[_______________], as special servicer (the "Special Servicer") and
[_______________], as trustee (the "Trustee"). Capitalized terms used herein and
not otherwise defined shall have the meaning set forth in the Pooling and
Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Directing Certificateholder] [acquired its Purchase Option
from the Directing 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(c)] of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the applicable 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 such
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 applicable 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 such 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 applicable
N-1
Servicer's 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 [Directing
Certificateholder] [Special Servicer] hereby acknowledges and affirms that it
transferred its Purchase Option to the Option Holder identified above on
[_________].
[_______________________]
By:
--------------------------------------------
Name:
Title:]
N-2
EXHIBIT O
FORM OF NOTIFICATION FROM CUSTODIAN
[DATE]
To the Persons Listed on the attached Schedule A
Re: COMM [______]-[___]
Ladies and Gentlemen:
In accordance with [Section 2.02] of the Pooling and Servicing
Agreement, dated as of [_______________] (the "Pooling and Servicing
Agreement"), entered into by Deutsche Mortgage & Asset Receiving Corporation, as
Depositor, [_______________], as servicer (the "Servicer"), [_______________],
as special servicer (the "Special Servicer") and [_______________], as Trustee
and Paying Agent, the undersigned, as Custodian, hereby notifies you that, based
upon the review required under the Pooling and Servicing Agreement, the Mortgage
File for each Mortgage Loan set forth on the attached defect schedule contains a
document or documents which (i) has not been executed or received, (ii) has not
been recorded or filed (if required), (iii) is unrelated to the Mortgage Loans
identified in the Mortgage Loan Schedule, (iv) appears not to be what they
purport to be or has been torn in any materially adverse manner or (v) is
mutilated or otherwise defaced, in each case as more fully described on the
attached defect schedule.
The Custodian has no responsibility to determine, and expresses no
opinion with respect thereto, whether any document or opinion is legal, valid,
binding or enforceable, whether the text of any assignment or endorsement is in
proper or recordable form (except, if applicable, to determine if the Trustee is
the assignee or endorsee), whether any document has been recorded in accordance
with the requirements of any applicable jurisdiction, whether a blanket
assignment is permitted in any applicable jurisdiction, or whether any Person
executing any document or rendering any opinion is authorized to do so or
whether any signature thereon is genuine.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
[SIGNATURE PAGE FOLLOWS]
O-1
[___________________],
as Custodian
By:
-----------------------------------------
Name:
Title:
O-2
SCHEDULE A TO FORM OF NOTIFICATION FROM CUSTODIAN
-------------------------------------------------
[Trustee Address]
[Servicer Address]
[Special Servicer Address]
Deutsche Mortgage & Asset Receiving Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
If to the German American Capital Corporation, as Mortgage Loan Seller, to:
German American Capital Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
If to [_______________], as Mortgage Loan Seller, to:
[_______________]
with a copy to:
[________________]
O-3
DEFECT SCHEDULE
---------------
X-0
XXXXXXX X-0
FORM OF CLOSING DATE TRUSTEE CERTIFICATION
[______________], 20[__]
Deutsche Mortgage & Asset German American
Receiving Corporation Capital Corporation
00 Xxxx Xxxxxx 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
[Servicer Address] [Additional Mortgage Loan Seller
Addresses]
[Special Servicer Address] [Paying Agent/Certificate Registrar
Address]
[Rating Agency Addresses]
Re: Commercial Mortgage Pass-Through Certificates, Series [____]-[__]
-----------------------------------------------------------------
In accordance with [Section 2.01(b)] of the Pooling and Servicing
Agreement, dated as of [_______________] (the "Agreement") entered into by
Deutsche Mortgage & Asset Receiving Corporation, as Depositor,
[_______________], as servicer (the "Servicer"), and the undersigned, as Trustee
and Paying Agent, the Trustee hereby certifies that, with respect to each
Mortgage Loan listed on the Mortgage Loan Schedule attached hereto as Schedule
A, (a) the Trustee has in its possession all Notes or an appropriate lost note
affidavit, and (b) the foregoing documents delivered or caused to be delivered
by the Mortgage Loan Sellers have been reviewed by it or by a Custodian on its
behalf and appear regular on their face, appear to be executed and relate to
such Mortgage Loan.
Capitalized terms used but not defined herein shall the respective
meanings set forth in the Agreement.
[_______________],
as Trustee
[____________________]
Corporate Trust Officer
P-1-1
SCHEDULE A TO CLOSING DATE TRUSTEE CERTIFICATION
------------------------------------------------
(MORTGAGE LOAN SCHEDULE)
X-0-0
XXXXXXX X-0
FORM OF POST-CLOSING TRUSTEE CERTIFICATION
[______] [__], 20[__]
Deutsche Mortgage & Asset German American
Receiving Corporation Capital Corporation
00 Xxxx Xxxxxx 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
[Servicer Address] [Additional Mortgage Loan Seller
Addresses]
[Special Servicer Address] [Paying Agent/Certificate Registrar
Address]
[Rating Agency Addresses]
Re: Commercial Mortgage Pass-Through Certificates, Series [_____]-[__]
------------------------------------------------------------------
In accordance with [Section 2.01(b)] of the Pooling and Servicing
Agreement, dated as of [_______________] (the "Agreement") entered into by
Deutsche Mortgage & Asset Receiving Corporation, as Depositor,
[_______________], as servicer (the "Servicer"), [_______________], as special
servicer (the "Special Servicer"), and [_______________], as trustee (the
"Trustee") and paying agent, the Trustee hereby certifies that, with respect to
each Mortgage Loan listed on the Mortgage Loan Schedule attached hereto as
Schedule A, (a) the Trustee has in its possession a copy of the Mortgage, a copy
of any related ground leases, the originals or copies of any related letters of
credit and the lenders title policy (original or copy or marked-up title
commitment marked as binding and countersigned by the title company or its
authorized agent either on its face (which may be a pro forma or specimen title
insurance policy which has been accepted or approved as binding in writing by
the related title insurance company) or an agreement to provide the same
pursuant to binding escrow instructions executed by an authorized representative
of the title company and, with respect to hospitality properties, a copy of the
franchise agreement, an original or copy of the comfort letter and any transfer
documents with respect tot such comfort letter and (b) the foregoing documents
delivered or caused to be delivered by the Mortgage Loan Sellers have been
reviewed by it or by a Custodian on its behalf and appear regular on their face,
appear to be executed and relate to such Mortgage Loan
Capitalized terms used but not defined herein shall the respective
meanings set forth in the Agreement.
P-2-1
[_______________],
as Trustee
[____________________]
Corporate Trust Officer
P-2-2
SCHEDULE A TO FORM OF POST-CLOSING TRUSTEE CERTIFICATION
--------------------------------------------------------
(MORTGAGE LOAN SCHEDULE)
P-2-3
EXHIBIT Q
FORM OF NOTICE AND CERTIFICATION REGARDING DEFEASANCE OF MORTGAGE LOAN
For Mortgage Loans having a Stated Principal Balance of $20,000,000 or less or
having an aggregate Stated Principal Balance of 5% or less of all of the
Mortgage Loans (whichever is less), so long as of the date hereof such Mortgage
Loan is not one of the ten largest Mortgage Loans by Stated Principal Balance
To: [Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance]
[Trustee Address]
From: [_______________] in its capacity as Servicer (collectively, the
"Servicer") under the Pooling and Servicing Agreement dated as of
[_______________] (the "Pooling and Servicing Agreement"), among the Servicer,
[_______________], as Trustee, and certain other parties.
Date: _________, 20___
Re: Deutsche Mortgage & Asset Receiving Corporation, Commercial Mortgage
Pass-Through Certificates Series COMM [______]-[___] Mortgage Loan (the
"Mortgage Loan") heretofore secured by real property known as
__________________.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement.
THE STATEMENTS SET FORTH BELOW ARE MADE (A) TO THE BEST KNOWLEDGE OF THE
UNDERSIGNED BASED UPON DUE DILIGENCE CONSISTENT WITH THE SERVICING STANDARD
SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (THE "SERVICING STANDARD"), AND
(B) WITHOUT INTENDING TO WARRANT THE ACCURACY THEREOF OR UNDERTAKE ANY DUTY OR
STANDARD OF CARE GREATER THAN THE DUTIES OF THE SERVICERS UNDER THE POOLING AND
SERVICING AGREEMENT AND THE SERVICING STANDARD
We hereby notify you and confirm that each of the following is true, subject to
those exceptions, if any, set forth 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:
Q-1
1. The Borrower has consummated a defeasance of the Mortgage Loan of the type
checked below:
___ a full defeasance of the entire outstanding principal balance
($___________) of the Mortgage Loan; or
___ a partial defeasance of a portion ($________) of the Mortgage Loan
that represents ___% of the entire principal balance of the Mortgage Loan
($_________);
2. The defeasance was consummated on ____________, 20__.
3. The defeasance was completed in all material respects in accordance with
the conditions for defeasance specified in the Loan Documents and in
accordance with the Servicing Standard.
4. The defeasance collateral consists only of one or more of the following:
(i) direct debt obligations of the U.S. Treasury, (ii) direct debt
obligations of the Federal National Mortgage Association, (iii) direct
debt obligations of the Federal Home Loan Mortgage Corporation, or (iv)
interest-only direct debt obligations of the Resolution Funding
Corporation. Such defeasance collateral consists of securities that (i) if
they include a principal obligation, the principal due at maturity cannot
vary or change, (ii) provide for interest at a fixed rate and (iii) are
not subject to prepayment, call or early redemption.
5. After the defeasance, the defeasance collateral will be owned by an entity
(the "Defeasance Obligor") that: (i) is the original Borrower, (ii) is a
Single-Purpose Entity (as defined in the S&P Criteria), (iii) is subject
to restrictions in its organizational documents substantially similar to
those contained in the organizational documents of the original Borrower
with respect to bankruptcy remoteness and single purpose, (iv) has been
designated as the Defeasance Obligor by the originator of the Mortgage
Loan pursuant to the terms of the Loan Documents, or (v) has delivered a
letter from Standard & Poor's confirming that the organizational documents
of such Defeasance Obligor were previously approved by Standard & Poor's.
The Defeasance Obligor owns no assets other than defeasance collateral and
(only in the case of the original Borrower) real property securing one or
more Mortgage Loans included in the pool under the Pooling and Servicing
Agreement (the "Pool").
6. If such Defeasance Obligor (together with its affiliates) holds more than
one defeased loan, it does not (together with its affiliates) hold
defeased loans aggregating more than $20 Million or more than five percent
(5%) of the aggregate certificate balance of the Certificates as of the
date of the most recent Paying Agent's Monthly Certificateholder Report
received by the Servicer (the "Current Report").
7. The defeasance documents require that the defeasance collateral be
credited to an eligible account (as defined in the S&P Criteria) that must
be maintained as a securities account by a securities intermediary that is
at all times an Eligible Institution (as defined in the S&P Criteria). The
securities intermediary may reinvest proceeds of the defeasance collateral
only in Permitted Investments (as defined in the Pooling and Servicing
Agreement).
Q-2
8. The securities intermediary is obligated to pay from the proceeds of the
defeasance collateral directly to the Servicer's collection account, all
scheduled payments on the Mortgage Loan or, in a partial defeasance, not
less than 125% of the portion of such scheduled payments attributed to the
allocated loan amount for the real property defeased (the "Scheduled
Payments").
9. The Servicer received written confirmation from an independent certified
public accountant stating that (i) revenues from the defeasance collateral
(without taking into account any earnings on reinvestment of such
revenues) will be sufficient to timely pay each of the Scheduled Payments
including the payment in full of the Mortgage Loan (or the allocated
portion thereof in connection with a partial defeasance) on its Maturity
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, (iii) the defeasance collateral is not
subject to prepayment, call or early redemption, and (iv) interest income
from the defeasance collateral to the Defeasance Obligor in any tax 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, other than in the year in which the Maturity Date or
Anticipated Repayment Date will occur, when interest income will exceed
interest expense.
10. The Servicer received opinions of counsel that, subject to customary
qualifications, (i) the defeasance will not cause the Trust to fail to
qualify as a REMIC for purpose of the Internal Revenue Code, (ii) the
agreements executed by the Mortgagor and the Defeasance Obligor in
connection with the defeasance are enforceable against them in accordance
with their terms, and (iii) the Trustee will have a perfected, first
priority security interest in the defeasance collateral.
11. The agreements executed in connection with the defeasance (i) prohibit
subordinate liens against the defeasance collateral, (ii) provide for
prepayment from sources other than the defeasance collateral of all fees
and expenses of the securities intermediary for administering the
defeasance and the securities account and all fees and expense of
maintaining the existence of the Defeasance Obligor, (iii) permit release
of surplus defeasance collateral and earnings on reinvestment to the
Defeasance Obligor only after the Mortgage Loan has been paid in full,
(iv) include representations and/or covenants of the Mortgagor and/or
securities intermediary substantially as set forth on Exhibit B hereto,
(v) provide for survival of such representations; and (vi) do not permit
waiver of such representations and covenants.
12. The outstanding principal balance of the Mortgage Loan immediately before
the defeasance was less than $20,000,000 or less than 5% of the aggregate
certificate balance of the Certificates as of the date of the Current
Report. The Mortgage Loan is not one of the ten (10) largest loans in the
pool.
13. Copies of all material agreements, instruments, organizational documents,
opinions of counsel, accountant's report and other items delivered in
connection with the defeasance will be provided to you upon request.
Q-3
14. The individual executing this notice is an authorized officer or a
servicing officer of the Servicer.
IN WITNESS WHEREOF, the Servicer has caused this notice to be
executed as of the date captioned above.
[SERVICER]
By:
--------------------------------------
Name:
Title:
Q-4
EXHIBIT A
---------
Form of Notice and Certification Regarding Defeasance of Mortgage Loan
(List of Exceptions)
Q-5
EXHIBIT B
---------
Perfected Security Interest Representations
General:
1. [The defeasance agreements] create a valid and continuing security
interest (as defined in the applicable UCC) in the [Collateral, Securities
Account and Deposit Account] in favor of the [Secured Party], which
security interest is prior to all other [Liens], and is enforceable as
such as against creditors of and purchasers from [Debtor].
Note that "Collateral" means securities, permitted investments and other
assets credited to securities accounts.
2. The [Deposit Account] constitutes a "deposit account" within the meaning
of the applicable UCC.
3. All of the [Collateral] has been and will have been credited to a
[Securities Account]. The securities intermediary for the [Securities
Account has agreed to treat all assets credited to the [Securities
Account] as "financial assets" within the meaning of the UCC.
Creation:
4. [Debtor] owns and has good and marketable title to the [Collateral,
Securities Account and Deposit Account] free and clear of any [Lien],
claim or encumbrance of any Person.
5. [Debtor] has received all consents and approvals required by the terms of
the [Collateral] to the transfer to the [Secured Party] of its interest
and rights in the [Collateral] hereunder.
Perfection:
6. [Debtor] has caused or will have caused, within ten (10) days, the filing
of all appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the
security interest granted in the [Collateral, Securities Account and
Deposit Account] to the [Secured Party] hereunder.
7. [Debtor] has delivered to [Secured Party] a fully executed agreement
pursuant to which the securities intermediary or the account bank has
agreed to comply with all instructions originated by the [Secured Party]
relating to the [Securities Account] or directing disposition of the funds
in the [Deposit Account] without further consent by the [Debtor].
8. [Debtor] has taken all steps necessary to cause the securities
intermediary to identify in its records the [Secured Party] as the person
having a security entitlement against the securities intermediary in the
[Securities Account].
9. [Debtor] has taken all steps necessary to cause [Secured Party] to become
the account holder of the [Deposit Account].
Q-6
Priority:
10. Other than the security interest granted to the [Secured Party]
pursuant to his Agreement, [Debtor] has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the
[Collateral, Securities Account and Deposit Account]. [Debtor] has not
authorized the filing of and is not aware of any financing statements
against [Debtor] that include a description of collateral covering the
[Collateral, Securities Account and Deposit Account] other than any
financing statement relating to the security interest granted to the
[Secured Party] hereunder or that has been terminated. Debtor is not
aware of any judgment or tax lien filings against [Debtor].
Q-7
EXHIBIT R
INFORMATION REQUEST FORM
Date: [________] [__], 20[__]
[Address of party from
whom information is requested]
Attention: Deutsche Mortgage Asset & Receiving Corporation,
Commercial Mortgage Pass Through Certificates, COMM [______]-[___]
In accordance with the Pooling and Servicing Agreement, dated as of
[_______________] (the "Agreement"), entered into by Deutsche Mortgage Asset &
Receiving Corporation, as depositor, [_______________], as servicer (the
"Servicer"), [_______________], as special servicer (the "Special Servicer") and
[_______________], as trustee and paying agent, with respect to the above
referenced certificates (the "Certificates"), the undersigned hereby certifies
and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the
Class [__] Certificates.
2. The undersigned is requesting from [name of party from whom information is
requested] certain information (the "Information") pursuant to the
provisions of the Agreement.
3. In consideration of the [name of party from whom information is
requested]'s disclosure to the undersigned of the Information, or access
thereto, the undersigned will keep the Information confidential (except
from such outside persons as are assisting it in making an evaluation in
connection with purchasing the related Certificates, from its accountants
and attorneys, and otherwise from such governmental or banking authorities
or agencies to which the undersigned is subject), and such Information,
will not, without the prior written consent of [name of party from whom
information is requested], be otherwise disclosed by the undersigned or by
its officers, directors, partners, employees, agents or representatives
(collectively, the "Representative") in any manner whatsoever, in whole or
in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act
of 1934, as amended, or would require registration of any Certificate
pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor,
[name of party from whom information is requested], the Trustee and the
Trust Fund for any loss, liability or expense incurred thereby with
respect to any such breach by the undersigned or any its Representative.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
R-1
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[_______________________________________]
Beneficial Owner or Prospective Purchaser
By:
-----------------------------------------
Title:
--------------------------------------
Company:
------------------------------------
Phone:
--------------------------------------
R-2
SCHEDULE I
[Class A-AB] Planned Principal Balance Schedule
[To be inserted]
SCHEDULE II
Rates to be Used in Determining the [Class X C] and [Class X P] Pass Through
Rates
[To be inserted]
SCHEDULE III
Relevant Servicing Criteria
[Insert grid listing all 1122(d) servicing criteria and indicating which
Reporting Servicer will be responsible for those criteria for assessment
purposes.]
SCHEDULE IV
Additional Form 10-D Disclosure
Item on Form 10-D Party Responsible
Item 1: Distribution and Pool
Performance Information
Any information required by 1121 which
is NOT included on the monthly
statement to Certificateholders
Item 2: Legal Proceedings
per Item 1117 of Reg AB
Item 3: Sale of Securities and Use of
Proceeds
Item 4: Defaults Upon Senior Securities
Item 5: Submission of Matters to a
Vote of Security Holders
Item 6: Significant Obligors of Pool
Assets
Item 7: Significant Enhancement
Provider Information
Item 8: Other Information
Item 9: Exhibits
SCHEDULE V
Additional Form 10-K Disclosure
Item on Form 10-K Party Responsible
Item 1B: Unresolved Staff Comments
Item 9B: Other Information
Item 15: Exhibits, Financial Statement
Schedules
Additional Item:
Disclosure per Item 1117 of Reg AB
Additional Item:
Disclosure per Item 1119 of Reg AB
Additional Item:
Disclosure per Item 1112(b) of Reg AB
Additional Item:
Disclosure per Items 1114(b) and
1115(b) of Reg AB
SCHEDULE VI
Form 8-K Disclosure Information
Item on Form 10-D Party Responsible
Item 1.01- Entry into a Material
Definitive Agreement
Item 1.02- Termination of a Material
Definitive Agreement
Item 1.03- Bankruptcy or Receivership
Item 2.04- Triggering Events that
Accelerate or Increase a Direct
Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement
Item 3.03- Material Modification to
Rights of Security Holders
Item 5.03- Amendments of Articles of
Incorporation or Bylaws; Change of
Fiscal Year
Item 6.01- ABS Informational and
Computational Material
Item 6.02- Change of Servicer or Trustee
Item 6.03- Change in Credit Enhancement
or External Support
Item 6.04- Failure to Make a Required
Distribution
Item 6.05- Securities Act Updating
Disclosure
Item 7.01- Reg FD Disclosure
Item 8.01
Item 9.01
