EXHIBIT 99
Execution Copy
===============================================================================
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Depositor,
Midland Loan Services, Inc.
Master Servicer,
First Union National Bank,
Special Servicer,
and
Xxxxx Fargo Bank Minnesota, N.A.
Trustee
--------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of July 1, 2001
--------------------------------
$961,696,439
Mortgage Pass-Through Certificates
Series 2001-CIBC2
===============================================================================
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.............................................................................................3
Section 1.01 Defined Terms...................................................................................3
Accepted Master Servicing Practices......................................................................3
Accepted Special Servicing Practices.....................................................................4
Acquisition Date.........................................................................................4
Additional Trust Fund Expense............................................................................5
Adjusted Available Distribution Amount...................................................................5
Advance..................................................................................................5
Advance Rate.............................................................................................5
Adverse REMIC Event......................................................................................5
Affiliate................................................................................................5
Agreement................................................................................................5
Allocated Net Prepayment Premium.........................................................................5
Allocation Fraction......................................................................................5
Anticipated Repayment Date...............................................................................6
Appraisal Estimate.......................................................................................6
ARD Loan.................................................................................................6
Asset Strategy Report....................................................................................6
Assignment of Leases and Rents...........................................................................6
Assignment of Mortgage...................................................................................6
Available Distribution Amount............................................................................6
Balloon Mortgage Loan....................................................................................7
Balloon Payment..........................................................................................7
Basic Master Servicing Fee Rate..........................................................................7
Basic Special Servicing Fee..............................................................................7
Basic Special Servicing Fee Rate.........................................................................7
Bankruptcy Code..........................................................................................7
Book-Entry Certificate...................................................................................7
Business Day.............................................................................................7
Certificate..............................................................................................7
Certificate Account......................................................................................7
Certificate Balance......................................................................................7
Certificateholder........................................................................................8
Holder...................................................................................................8
Certificate Owner........................................................................................8
Certificate Register.....................................................................................8
Certificate Registrar....................................................................................8
CIBC.....................................................................................................8
Class....................................................................................................8
Class A1 Certificate.....................................................................................8
Class A2 Certificate.....................................................................................8
(i)
Class A3 Certificate.....................................................................................8
Class B Certificate......................................................................................8
Class Balance............................................................................................8
Class C Certificate......................................................................................8
Class D Certificate......................................................................................8
Class E Certificate......................................................................................9
Class F Certificate......................................................................................9
Class G Certificate......................................................................................9
Class H Certificate:.....................................................................................9
Class J Certificate......................................................................................9
Class K Certificate......................................................................................9
Class L Certificate......................................................................................9
Class M Certificate......................................................................................9
Class Notional Amount....................................................................................9
Class NR Certificate....................................................................................10
Class Portion...........................................................................................10
Class Prepayment Fraction...............................................................................10
Class R-I Certificate...................................................................................10
Class R-II Certificate..................................................................................10
Class R-III Certificate.................................................................................10
Class X Certificate.....................................................................................10
Class X Component.......................................................................................10
Class X1 Component......................................................................................10
Class X2 Component......................................................................................16
CMSA....................................................................................................17
CMSA Bond Level File....................................................................................17
CMSA Collateral Summary File............................................................................18
CMSA Comparative Financial Status Report................................................................18
CMSA Delinquent Loan Status Report......................................................................18
CMSA Financial File.....................................................................................18
CMSA Historical Liquidation Report......................................................................19
CMSA Historical Loan Modification Report................................................................19
CMSA IRP................................................................................................19
CMSA Loan Periodic Update File..........................................................................19
CMSA Loan Setup File....................................................................................20
CMSA NOI Adjustment Worksheet...........................................................................20
CMSA Operating Statement Analysis Report................................................................20
CMSA Property File......................................................................................20
CMSA REO Status Report..................................................................................20
CMSA Servicer Watch List................................................................................21
CMSA Website............................................................................................21
Code....................................................................................................21
Collateral Value Adjustment.............................................................................21
Collateral Value Adjustment Event.......................................................................22
Collection Account......................................................................................22
Collection Period.......................................................................................22
(ii)
Condemnation Proceeds...................................................................................22
Corporate Trust Office..................................................................................23
Corrected Mortgage Loan.................................................................................23
Cross Collateralized Loan...............................................................................23
Custodian...............................................................................................23
Cut-off Date............................................................................................23
Cut-off Date Balance....................................................................................23
Defaulted Mortgage Loan.................................................................................23
Default Interest........................................................................................23
Defeasance Collateral...................................................................................24
Deficient Valuation.....................................................................................24
Definitive Certificate..................................................................................24
Delivery Date...........................................................................................24
Depositor...............................................................................................24
Depository..............................................................................................24
Depository Participant..................................................................................24
Determination Date......................................................................................24
Determination Information...............................................................................24
Directing Certificateholder.............................................................................24
Directly Operate........................................................................................25
Disqualified Organization...............................................................................25
Distribution Date.......................................................................................25
DSCR....................................................................................................25
Due Date................................................................................................25
Eligible Account........................................................................................25
Environmental Laws......................................................................................26
Escrow Account..........................................................................................27
Escrow Payments.........................................................................................27
Event of Default........................................................................................27
Excess Cash Flow........................................................................................27
Excess Condemnation Proceeds............................................................................27
Excess Insurance Proceeds...............................................................................28
Excess Interest.........................................................................................28
Excess Rate.............................................................................................28
FDIC....................................................................................................28
Final Certification.....................................................................................28
Final Recovery Determination............................................................................28
First Union.............................................................................................28
Fitch...................................................................................................28
Hazardous Materials.....................................................................................29
Holder..................................................................................................29
Certificateholder.......................................................................................29
Independent.............................................................................................29
Independent Contractor..................................................................................29
Initial Certification...................................................................................30
Initial Monthly Payment Fund............................................................................30
(iii)
Initial Subservicer.....................................................................................30
Insurance Policy........................................................................................30
Insurance Proceeds......................................................................................30
Interest Accrual Amount.................................................................................30
Interest Distribution Amount............................................................................30
Interest Reserve Account................................................................................31
Interest Reserve Loan...................................................................................31
Interested Person.......................................................................................31
Law.....................................................................................................31
Liquidation Event.......................................................................................31
Liquidation Fee.........................................................................................31
Liquidation Fee Rate....................................................................................31
Liquidation Proceeds....................................................................................32
Loan Number.............................................................................................32
Loss Mortgage Loan......................................................................................32
MAI.....................................................................................................32
Master Remittance Date..................................................................................32
Master Servicer.........................................................................................32
Master Servicing Fee....................................................................................32
Master Servicing Fee Rate...............................................................................32
Maturity Date...........................................................................................32
MGT.....................................................................................................32
Minimum Master Servicing Fee Rate.......................................................................32
Monitoring Certificateholder............................................................................32
Monitoring Class........................................................................................33
Monitoring Class Option Holder..........................................................................33
Monthly Payment.........................................................................................33
Mortgage................................................................................................33
Mortgage Loan...........................................................................................33
Mortgage Loan Documents.................................................................................33
Mortgage Loan File......................................................................................33
Mortgage Loan Purchase Agreements.......................................................................34
Mortgage Loan Schedule..................................................................................34
Mortgage Loan Sellers...................................................................................34
Mortgage Note...........................................................................................34
Mortgage Rate...........................................................................................34
Mortgaged Property......................................................................................34
Mortgagor...............................................................................................34
Most Subordinate Class of Certificates..................................................................34
Nonrecoverable Advance..................................................................................34
Nonrecoverable Advance Certificate......................................................................35
Non-United States Person................................................................................35
Non-U.S. Treasury Net Prepayment Premium................................................................35
NRSRO...................................................................................................35
Officers' Certificate...................................................................................35
Opinion of Counsel......................................................................................35
(iv)
Original Class Balance..................................................................................35
Ownership Xxxxxxxx......................................................................................00
X&X Advance.............................................................................................35
Pass-Through Rate.......................................................................................35
Payment Reserve.........................................................................................36
Percentage Interest.....................................................................................36
Permitted Investments...................................................................................36
Person..................................................................................................37
Phase I.................................................................................................37
PNC.....................................................................................................37
Pool Factor.............................................................................................37
Prepayment Assumption...................................................................................37
Prepayment Interest Excess..............................................................................38
Prepayment Interest Shortfall...........................................................................38
Prepayment Premium......................................................................................38
Primary Servicing Fees..................................................................................38
Prime Rate..............................................................................................38
Principal Distribution Amount...........................................................................38
Principal Prepayment....................................................................................39
Private Certificates....................................................................................39
Property Improvement Expenses...........................................................................39
Property Inspection Report..............................................................................39
Property Protection Expenses............................................................................39
Purchase Option.........................................................................................40
Purchase Option Notice..................................................................................40
Purchase Price..........................................................................................40
Qualified Insurer.......................................................................................40
Rated Final Distribution Date...........................................................................41
Rating Agency...........................................................................................41
Realized Loss...........................................................................................41
Record Date.............................................................................................41
REMIC...................................................................................................41
REMIC I.................................................................................................41
REMIC I Uncertificated Interests........................................................................42
REMIC II................................................................................................42
REMIC II Uncertificated Interests.......................................................................42
REMIC III...............................................................................................42
REMIC Provisions........................................................................................42
Remittance Period.......................................................................................42
Remittance Rate.........................................................................................42
Rents from Real Property................................................................................43
REO Account.............................................................................................43
REO Acquisition.........................................................................................43
REO Mortgage Loan.......................................................................................43
REO Proceeds............................................................................................43
REO Property............................................................................................43
(v)
REO Tax.................................................................................................43
Repair and Remediation Reserve..........................................................................43
Replacement Reserve.....................................................................................43
Replacement Special Servicer............................................................................44
Request for Release and Receipt of Documents............................................................44
Required Appraisal Date.................................................................................44
Required Rating.........................................................................................44
Residual Certificate....................................................................................44
Responsible Officer.....................................................................................44
Restricted Period.......................................................................................44
Revised Rate............................................................................................44
S&P.....................................................................................................44
Security Agreement......................................................................................45
Servicer................................................................................................45
Servicing Advance.......................................................................................45
Servicing Fee...........................................................................................45
Servicing Fee Rate......................................................................................45
Servicing Officer.......................................................................................45
Servicing Transfer Date.................................................................................45
Servicing Transfer Event................................................................................45
Single-Purpose Entity...................................................................................46
SPE.....................................................................................................46
Specially Serviced Mortgage Loan........................................................................46
Special Servicer........................................................................................46
Startup Day.............................................................................................46
State Tax Laws..........................................................................................46
Stated Principal Balance................................................................................46
Tax Matters Person......................................................................................47
Tax Returns.............................................................................................48
Tenant Improvement and Leasing Commissions Reserve......................................................48
Transfer Date...........................................................................................48
Transferable Servicing Interest.........................................................................48
Trust Fund..............................................................................................48
Trustee.................................................................................................48
Trustee Fee.............................................................................................48
Trustee Fee Rate........................................................................................48
UCC Financing Statement.................................................................................48
Uncertificated Interest I...............................................................................48
Uncertificated Interest II..............................................................................49
Uncertificated Interest IIIA............................................................................49
Uncertificated Interest IV..............................................................................49
Uncertificated Interest V...............................................................................49
Uncertificated Interest VI..............................................................................49
Uncertificated Interest VII.............................................................................49
Uncertificated Interest VIII............................................................................49
Uncertificated Interest IX..............................................................................49
(vi)
Uncertificated Interest X...............................................................................49
Uncertificated Interest XI..............................................................................50
Uncertificated Interest XII.............................................................................50
Uncertificated Interest XIII............................................................................50
Uncertificated Interest XIV.............................................................................50
Uncertificated Interest XV..............................................................................50
Underwriter.............................................................................................50
United States Person....................................................................................50
U.S. Treasury Net Prepayment Premium....................................................................50
Voting Rights...........................................................................................50
Weighted Average Remittance Rate........................................................................51
Withheld Amount.........................................................................................51
Workout Fee.............................................................................................51
Workout Fee Rate........................................................................................51
Section 1.02 Calculations...................................................................................51
Section 1.03 Rules of Construction..........................................................................51
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES.......................................52
Section 2.01 Conveyance of Mortgage Loans...................................................................52
Section 2.02 Acceptance by Trustee..........................................................................56
Section 2.03 Representations and Warranties of the Depositor, the Master Servicer and the Special
Servicer; Assignment of Rights.................................................................58
Section 2.04 Repurchase of Mortgage Loans for Breaches of Representation and Warranty.......................63
Section 2.05 Execution of Certificates......................................................................65
ARTICLE III GENERAL SERVICING AND ADMINISTRATION.................................................................66
Section 3.01 Access to Certain Documentation Regarding the Mortgage Loans and This Agreement................66
Section 3.02 Annual Statement As to Compliance..............................................................66
Section 3.03 Annual Independent Public Accountants' Servicing Report........................................66
Section 3.04 Merger or Consolidation of Any Servicer........................................................67
Section 3.05 Limitation on Liability of the Servicers and Others............................................67
Section 3.06 Resignation of Servicers.......................................................................68
Section 3.07 Maintenance of Errors and Omissions and Fidelity Coverage......................................68
Section 3.08 Indemnity......................................................................................69
Section 3.09 Information Systems............................................................................70
Section 3.10 Successor to a Servicer........................................................................70
Section 3.11 REMIC Administration and Other Tax Matters.....................................................72
Section 3.12 Notices to Mortgagors..........................................................................75
Section 3.13 Subservicing...................................................................................75
Section 3.14 Record Title to Mortgage Loans, Etc............................................................77
Section 3.15 Release of Documents and Instruments of Satisfaction...........................................77
Section 3.16 Additional Servicing Restrictions; Defeasance..................................................78
(vii)
Section 3.17 Interest Reserve Account.......................................................................79
Section 3.18 Directing Certificateholder Contact with Servicers.............................................79
ARTICLE IV MASTER SERVICING......................................................................................80
Section 4.01 The Master Servicer............................................................................80
Section 4.02 Collection Account; Collection of Certain Mortgage Loan Payments...............................83
Section 4.03 Permitted Withdrawals from the Collection Account..............................................85
Section 4.04 Remittances to the Trustee.....................................................................87
Section 4.05 Master Servicer Advances.......................................................................88
Section 4.06 Escrow Accounts................................................................................89
Section 4.07 Maintenance of Insurance.......................................................................92
Section 4.08 Enforcement of "Due-on-Sale" Clauses; Assumption Agreements....................................93
Section 4.09 Review of Property Inspections, Operating Statements and Rent Rolls............................95
Section 4.10 Reports of the Master Servicer and the Trustee.................................................96
Section 4.11 Confirmation of Balloon Payment................................................................98
Section 4.12 Master Servicer Compensation...................................................................98
Section 4.13 Adjustment of Master Servicer's Compensation...................................................98
Section 4.14 Implementation of Operations and Maintenance Plans.............................................99
Section 4.15 Dissemination of Information...................................................................99
Section 4.16 Certain Modification, Waivers, Assumptions Consents and Extensions.............................99
ARTICLE V [RESERVED]............................................................................................101
ARTICLE VI SPECIAL SERVICING....................................................................................102
Section 6.01 The Special Servicer..........................................................................102
Section 6.02 Transfer to Special Servicing.................................................................102
Section 6.03 Servicing of Specially Serviced Mortgage Loans................................................103
Section 6.04 Management of REO Property....................................................................107
Section 6.05 Sale of Defaulted Mortgage Loans and REO Property.............................................108
Section 6.06 REO Account; Collection of REO Proceeds.......................................................114
Section 6.07 Remittance to Master Servicer of Non-REO Proceeds.............................................115
Section 6.08 Remittances to Master Servicer from the REO Account...........................................115
Section 6.09 Specially Serviced Mortgage Loan Status Reports, REO Status Reports and Other Reports.........115
Section 6.10 Special Servicer Advances.....................................................................116
Section 6.11 Environmental Considerations..................................................................117
Section 6.12 Restoration of Specially Serviced Mortgage Loans..............................................118
Section 6.13 Special Servicer Compensation.................................................................119
Section 6.14 Limitations on the Special Servicer with Respect to ARD Loans.................................120
Section 6.15 Collateral Value Adjustments..................................................................121
Section 6.16 Replacement Special Servicer..................................................................122
ARTICLE VII PAYMENTS TO CERTIFICATEHOLDERS......................................................................123
Section 7.01 Certificate Account; Remittances to the Trustee...............................................123
(viii)
Section 7.02 Distributions.................................................................................123
Section 7.03 Statements to Certificateholders..............................................................128
Section 7.04 Distribution of Reports to the Trustee and the Depositor; Advances by the Master
Servicer......................................................................................132
Section 7.05 Allocations of Realized Losses................................................................133
ARTICLE VIII THE CERTIFICATES...................................................................................134
Section 8.01 The Certificates..............................................................................134
Section 8.02 Registration of Transfer and Exchange of Certificates.........................................136
Section 8.03 Mutilated, Destroyed, Lost or Stolen Certificates.............................................140
Section 8.04 Persons Deemed Owners.........................................................................140
ARTICLE IX THE DEPOSITOR........................................................................................141
Section 9.01 Liability of the Depositor....................................................................141
Section 9.02 Merger, Consolidation or Conversion of the Depositor..........................................141
Section 9.03 Limitation on Liability of the Depositor and Others...........................................141
ARTICLE X DEFAULT...............................................................................................142
Section 10.01 Events of Default.............................................................................142
Section 10.02 Trustee to Act; Appointment of Successor......................................................145
Section 10.03 Notification to Certificateholders............................................................146
Section 10.04 Waiver of Events of Default...................................................................146
Section 10.05 Additional Remedies of Trustee Upon Event of Default..........................................146
ARTICLE XI CONCERNING THE TRUSTEE...............................................................................147
Section 11.01 Duties of the Trustee.........................................................................147
Section 11.02 Monitoring Certificateholders and Directing Certificateholder.................................148
Section 11.03 Powers of Attorney............................................................................149
Section 11.04 Certification by Certificate Owners...........................................................149
Section 11.05 Certain Matters Affecting the Trustee.........................................................149
Section 11.06 The Trustee Not Liable for Certificates or Mortgage Loans.....................................151
Section 11.07 Trustee May Own Certificates..................................................................151
Section 11.08 Fees and Expenses of Trustee; Indemnification of Trustee......................................151
Section 11.09 Eligibility Requirements for Trustee..........................................................152
Section 11.10 Resignation and Removal of Trustee............................................................153
Section 11.11 Successor Trustee.............................................................................154
Section 11.12 Merger or Consolidation of Trustee............................................................154
Section 11.13 Appointment of Co-Trustee or Separate Trustee.................................................154
Section 11.14 Appointment of Custodians.....................................................................156
Section 11.15 Representations and Warranties of the Trustee.................................................157
Section 11.16 SEC Filings...................................................................................159
(ix)
ARTICLE XII TERMINATION.........................................................................................160
Section 12.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans..............................160
ARTICLE XIII MISCELLANEOUS PROVISIONS...........................................................................163
Section 13.01 Amendment.....................................................................................163
Section 13.02 Recordation of Agreement; Counterparts........................................................164
Section 13.03 Limitation on Rights of Certificateholders....................................................165
Section 13.04 Governing Law.................................................................................166
Section 13.05 Notices. 166
Section 13.06 Severability of Provisions....................................................................166
Section 13.07 Grant of a Security Interest..................................................................166
Section 13.08 Successors and Assigns........................................................................167
Section 13.09 Article and Section Headings..................................................................167
Section 13.10 Notices and Information to Rating Agencies and the Directing Certificateholder................167
Section 13.11 Certificateholders' List......................................................................168
Section 13.12 Protection of Assets..........................................................................169
(x)
EXHIBITS
Exhibit A Form of Certificate...........................................................................A-1
Exhibit B Form of Asset Strategy Report.................................................................B-1
Exhibit C Form of Transferor Certificate................................................................C-1
Exhibit D-1 Form of Investment Letter - Qualified Institutional Buyer...................................D-1-1
Exhibit D-2 Form of Investment Letter - Regulation S....................................................D-2-1
Exhibit E Form of Investment Letter - Accredited Investor...............................................E-1
Exhibit F-1 Form of Transfer Affidavit..................................................................F-1-1
Exhibit F-2 Form of Transferor Certificate..............................................................F-2-1
Exhibit G Mortgage Loan Schedule........................................................................G-1
Exhibit H Form of Distribution Date Statement...........................................................H-1
Exhibit I Form of Mortgage Loan Purchase Agreement....................................................I-1-1
Exhibit J Form of Acknowledgment........................................................................J-1
Exhibit K Confidentiality Agreement for Asset Strategy Report...........................................K-1
Exhibit L Form of Special Servicer Letter Pursuant to Section 4.01(e)...................................L-1
Exhibit M Form of Property Inspection Report Pursuant to Section 4.09(a)................................M-1
Exhibit N-1 Form of Confidentiality Letter (Certificate Owner)..........................................N-1-1
Exhibit N-2 Form of Confidentiality Letter (Prospective Owner)..........................................N-2-1
Exhibit O Form of Notice and Certification Regarding Defeasance of Mortgage Loan pursuant to
Section 3.16..................................................................................O-1
Exhibit P Initial Servicer Watch List Criteria..........................................................P-1
Exhibit Q Form of Purchase Option Notice pursuant to Section 6.05.......................................Q-1
Exhibit R Directing Certificateholder's Report List.....................................................R-1
Exhibit S Form of Notice Regarding Transfer to Special Servicing Pursuant to Section 6.02(a)............S-1
Exhibit T Form of Notification of Servicing Transfer....................................................T-1
Exhibit U Form of Notice of Monitoring Certficateholder.................................................U-1
Exhibit V Form of Notice Regarding Purchase Option Exercise.............................................V-1
Exhibit W Form of Special Servicer Notice Pursuant to Section 6.12(a)...................................W-1
Exhibit X Form of Special Servicer Notice Pursuant to Section 6.12(b)...................................X-1
Exhibit Y Form of Request for Release and Receipt of Documents Pursuant to Section 11.14................Y-1
Exhibit Z REO Account Letter Pursuant to Section 6.09(b)................................................Z-1
Exhibit AA Form of Certification Pursuant to Section 11.04..............................................AA-1
(xi)
This Pooling and Servicing Agreement, dated and effective as of July
1, 2001, among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., a
Delaware corporation, as Depositor, Midland Loan Services, Inc., a Delaware
corporation, as Master Servicer, First Union National Bank, a national banking
association, as Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A., a
national banking association, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates, to
be issued hereunder in multiple classes, which in the aggregate will evidence
the entire beneficial ownership interest in the Mortgage Loans (as defined
below). The Mortgage Loans will be serviced pursuant to the terms hereof. The
Depositor hereby assigns to the Trustee, acting on behalf of the
Certificateholders, its interests and rights in the Mortgage Loans. As
provided herein, the Trustee will elect that the segregated pool of assets
subject to this Agreement (including, without limitation, the Mortgage Loans)
be treated for federal income tax purposes as a real estate mortgage
investment conduit (a "REMIC") and such segregated pool of assets will be
designated as "REMIC I". One hundred forty-three partial undivided beneficial
ownership interests in each of the Mortgage Loans (the "REMIC I Uncertificated
Classes") will be designated as the "regular interests" in REMIC I and the
Class R-I Certificates will be the sole class of "residual interests" in REMIC
I, for purposes of the REMIC Provisions (as defined herein) under federal
income tax law. A segregated pool of assets consisting of the REMIC I
Uncertificated Classes will be designated as "REMIC II" and the Trustee will
make a separate REMIC election with respect thereto. Fifteen partial undivided
beneficial ownership interests in REMIC II (the "REMIC II Uncertificated
Classes") will be designated as the "regular interests" in REMIC II and the
Class R-II Certificates will be the sole class of "residual interests" in
REMIC II, for purposes of the REMIC Provisions under federal income tax laws.
Each of the REMIC II Uncertificated Classes, except for Uncertificated
Interests IIIA and IIIB, will be allocated distributions of principal and
Realized Losses on each Distribution Date in an amount equal to the aggregate
amount of principal distributions and Realized Losses allocated to the related
Class of Certificates. In addition, each of the REMIC II Uncertificated
Classes, except for Uncertificated Interests IIIA and IIIB, will be allocated
distributions on interest in the same order of priority as the related Class
of Certificates. For purposes of the preceding two sentences, each REMIC II
Uncertificated Class will be deemed related to the Class of Certificates
referenced in the definition thereof. On each Distribution Date, (i)
Uncertificated Interest IIIA will be allocated all payments of principal
allocated to the Class A3 Certificate until retired, and all additional
principal paid to the Class A3 Certificates will be allocated to
Uncertificated Interest IIIB, (ii) Uncertificated Interest IIIB will be
allocated all Realized Losses allocated to the Class A3 Certificate until
eliminated, and all additional Realized Losses allocated to the Class A3
Certificates will be allocated to Uncertificated Interest IIIA. Each of
Uncertificated Interests IIIA and IIIB will be allocated interest allocable to
the Class A3 Certificates pro rata based upon their principal balance as of
the immediately preceding Distribution Date. A segregated pool of assets
consisting of the REMIC II Uncertificated Classes will be designated as "REMIC
III" and the Trustee will make a separate REMIC election with respect thereto.
The Class A1, Class A2, Class A3, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class NR, Certificates
and each of the Class X Components will be designated as the "regular
interests" in REMIC III, and the
1
Class R-III Certificates will be the sole class of "residual interests"
therein for purposes of the REMIC Provisions under federal income tax law.
The following table sets forth the designation, Pass-Through Rate
and Original Class Balance for each Class of Certificates comprising the
interests in the Trust Fund created hereunder.
Class Designation Pass-Through Rate Original Class Balance
Class A1 5.1460% $50,000,000
Class A2 6.2440% $138,750,000
Class A3 6.4290% $561,373,000
Class B 6.5900% $38,468,000
Class C 6.7390(1)% $38,468,000
Class D 6.8470(1)% $14,425,000
Class X1 0.8471(2)% $961,696,439(3)
Class X2 0.9964(2)% $544,861,000(3)
Class E 7.4350(4)% $28,851,000
Class F 7.8050(5)% $12,021,000
Class G 6.2500% $25,245,000
Class H 6.2500% $7,213,000
Class J 6.2500% $7,212,000
Class K 6.2500% $12,022,000
Class L 6.2500% $4,808,000
Class M 6.2500% $4,809,000
Class NR 6.2500% $18,031,439
Class R-I NA NA
Class R-II NA NA
Class R-III NA NA
-------------------------------------------------------------------------------
(1) The Pass-Through Rate for this class of certificates for any
Distribution Date will be equal to the lesser of the indicated rate and
the Weighted Average Remittance Rate on the Mortgage Loans for such
Distribution Date.
(2) Initial Pass-Through Rate. The Pass-Through Rate for the Class X1 and
Class X2 Certificates will be as set forth in the definitions for each
of the Class X1 Component and the Class X2 Component, respectively.
(3) Class Notional Amount.
(4) The Pass-Through Rate for this class of certificates for any
Distribution Date will be equal to the Weighted Average Remittance Rate
on the Mortgage Loans for such Distribution Date minus 0.37%.
(5) The Pass-Through Rate for this class of certificates for any
Distribution Date will be equal to the Weighted Average Remittance Rate
on the Mortgage Loans for such Distribution Date.
As of close of business on the Cut-off Date, the Mortgage Loans had
an aggregate Cut-off Date Balance equal to $961,696,439.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree as
follows:
2
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accepted Master Servicing Practices": The procedures that the
Master Servicer follows in the servicing and administration of mortgage loans,
consistent with the higher of (i) the standard of care, skill, prudence and
diligence with which the Master Servicer services and administers mortgage
loans that are held for other portfolios and are similar to the Mortgage Loans
and (ii) the standard of care, skill, prudence and diligence which the Master
Servicer services and administers mortgage loans that are held for its own
portfolio and are similar to the Mortgage Loans, in either case, giving due
consideration to customary and usual standards of practice of prudent
institutional multifamily and commercial mortgage lenders, loan servicers and
asset managers but without regard to:
(i) any relationship that the Master Servicer or any
Affiliate of the Master Servicer may have with
any Mortgagor or any Affiliate of any Mortgagor
or any other party to this Agreement;
(ii) the Master Servicer's obligations to make
Advances with respect to the Mortgage Loans;
(iii) the adequacy of the Master Servicer's
compensation for its services hereunder or with
respect to any particular transaction;
(iv) the ownership, servicing or management for
others or itself by the Master Servicer of any
other mortgage loans or property;
(v) the ownership by the Master Servicer of any
Certificates or other securities;
(vi) any obligation of the Master Servicer to
repurchase any Mortgage Loan; or
(vii) any debt that the Master Servicer has extended
to any Mortgagor.
To the extent consistent with the foregoing and subject to the
express limitations set forth in this Agreement, the procedures followed by
the Master Servicer shall seek to maximize the timely and complete recovery of
principal and interest on the Mortgage Loans.
3
"Accepted Special Servicing Practices": The procedures that the
Special Servicer follows in the servicing, administration and disposition of
distressed mortgage loans and related real property, consistent with the
higher of (i) the standard of care, skill, prudence and diligence with which
the Special Servicer services, administers and disposes of, distressed
mortgage loans and related property that are held for other portfolios and are
similar to the Mortgage Loans, Mortgaged Property and REO Property and (ii)
the standard of care, skill, prudence and diligence with which the Special
Servicer services, administers and disposes of, distressed mortgage loans and
related property that are held for its own portfolio and are similar to the
Mortgage Loans, Mortgaged Property and REO Property, in either case, giving
due consideration to customary and usual standards of practice of prudent
institutional multifamily and commercial mortgage lenders, loan servicers and
asset managers, so as to maximize the net present value of recoveries on the
Mortgage Loans, but without regard to:
(i) any relationship that the Special Servicer or
any Affiliate of the Special Servicer, as
applicable, may have with any Mortgagor or any
Affiliate of any Mortgagor or any other party to
this Agreement;
(ii) the adequacy of the Special Servicer's
compensation for its services hereunder or with
respect to any particular transaction;
(iii) the ownership, servicing or management for
itself or others by the Special Servicer of any
other mortgage loans or property;
(iv) the ownership by the Special Servicer of any
Certificates or other securities issued in
connection with any securitization;
(v) any right of the Special Servicer to purchase
any Mortgage Loan; or
(vi) any debt that the Special Servicer has extended
to any Mortgagor.
"Acquisition Date": With respect to any REO Property, the first day
on which such REO Property is considered to be acquired by the Trust Fund
within the meaning of Treasury Regulation Section 1.856-6(b)(1), which is the
first day on which the Trust Fund is treated as the owner of such REO Property
for federal income tax purposes.
"Additional Trust Fund Expense": Any unanticipated expense within
the meaning of Treasury Regulation Section 1.860G-1(b)(3)(iii) experienced
with respect to the Trust Fund and not otherwise included in the calculation
of a Realized Loss, that would result in the Certificateholders receiving less
than the full amount of principal and/or interest to which they are entitled
on any Distribution Date.
4
"Adjusted Available Distribution Amount": With respect to any
Distribution Date, the Available Distribution Amount net of any aggregate
Allocated Net Prepayment Premiums.
"Advance": A P&I Advance or Servicing Advance.
"Advance Rate": An annual rate equal to the Prime Rate in effect
from time to time.
"Adverse REMIC Event": Any action or omission which would cause the
termination of REMIC I, REMIC II or REMIC III or the imposition of a tax on
REMIC I, REMIC II or REMIC III other than a tax on income expressly permitted
or contemplated to be received by the terms of this Agreement.
"Affiliate": With respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Allocated Net Prepayment Premium": With respect to any Distribution
Date and any Mortgage Loan , the excess (but not less than zero) of (a) any
Prepayment Premium on such Mortgage Loan received prior to the Master
Remittance Date and not previously distributed over (b) the pro rata portion,
based on the Prepayment Premium collected on each of the Mortgage Loans during
the same period, of the sum of (i) the excess of any Prepayment Interest
Shortfall over any Prepayment Interest Excess for such Distribution Date and
(ii) any amounts required to reimburse the Master Servicer on such
Distribution Date for reductions in its compensation pursuant to Section 4.13
(but not less than zero).
"Allocation Fraction": For any Class of Certificates, any Mortgage
Loan and any Distribution Date shall equal a fraction (not greater than one
and not less than zero) (x) the numerator of which is the excess of (a) the
Pass-Through Rate of such Class of Certificates over (b) the discount rate
used to calculate the related Prepayment Premium and (y) the denominator of
which is the excess of (a) the Mortgage Rate on the related Mortgage Loan over
(b) the discount rate referenced in clause (x) above.
"Anticipated Repayment Date": With respect to any ARD Loan,
designated as such on the Mortgage Loan Schedule, the date upon which such ARD
Loan starts to accrue interest at its Revised Rate.
"Appraisal Estimate": With respect to any Mortgage Loan having a
principal balance of less than $2,000,000, (a) the Special Servicer's good
faith estimate of the value of the related Mortgaged Properties securing such
Mortgage Loan as certified to the Master Servicer on
5
or before the Required Appraisal Date or (b) with the consent of the Directing
Certificateholder, an Independent MAI appraisal.
"ARD Loan": A Loan that is designated as such on the Mortgage Loan
Schedule.
"Asset Strategy Report": The report prepared pursuant to Section
6.03(c).
"Assignment of Leases and Rents": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Mortgagor, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of
all or a portion of such Mortgaged Property, in the form which was duly
executed, acknowledged and delivered, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
effect the transfer of the Mortgage to the Trust Fund, which assignment,
notice of transfer or equivalent instrument may be in the form of one or more
blanket assignments covering the Mortgage Loans secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
"Available Distribution Amount": With respect to any Distribution
Date, (a) the amount on deposit in the Certificate Account as of the close of
business on the related Master Remittance Date immediately preceding such
Distribution Date, after giving effect to expenses of the Trust Fund (other
than distributions on the Certificates) pursuant to this Agreement, plus any
P&I Advances deposited in the Certificate Account with respect to such
Distribution Date and (b) with respect to the Distribution Date occurring in
March of each calendar year, the Withheld Amounts with respect to the Interest
Reserve Loans deposited in the Interest Reserve Account by the Trustee in
January and/or February of such calendar year in accordance with Section 3.17;
net of, (i) 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, the Withheld Amounts with respect to the Interest Reserve Loans
deposited in the Interest Reserve Account by the Trustee with respect to such
Distribution Date in accordance with Section 3.17, (ii) Excess Interest and
(iii) Default Interest.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification provides for an amortization schedule
extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the amount outstanding on the Maturity Date of such
Mortgage Loan in excess of the related Monthly Payment.
"Basic Master Servicing Fee Rate": With respect to each Mortgage
Loan, a per annum rate equal to 0.02% per annum.
"Basic Special Servicing Fee": The compensation the Special Servicer
is entitled to receive at the Basic Special Servicing Fee Rate pursuant to
Section 6.13.
6
"Basic Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan, a per annum rate equal to 0.25% per annum.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking and savings and loan institutions in the Commonwealth of
Pennsylvania or the States of Maryland, Minnesota, Missouri, New York or North
Carolina are authorized or obligated by law or executive order to remain
closed.
"Certificate": Any Class A1, Class A2, Class A3, Class B, Class C,
Class D, Class X1, Class X2, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class NR, Class R-I, Class R-II or Class R-III
Certificate.
"Certificate Account": The segregated trust account or accounts
created and maintained by the Trustee pursuant to Section 7.01 in trust for
Certificateholders, which shall be entitled "Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee, in trust for registered holders of X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Mortgage Pass-Through Certificates, Series
2001-CIBC2".
"Certificate Balance": With respect to any Class A1, Class A2, Class
A3, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M or Class NR Certificate, as of any date of
determination, the then outstanding principal amount of such Certificate equal
to the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then Class Balance of the Class of Certificates to which
such Certificate belongs. None of the Class X or Residual Certificates have a
Certificate Balance.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Master Servicer,
Special Servicer, the Depositor or any Affiliate thereof shall be deemed not
to be outstanding with respect to Sections 10.04 and 13.01. The Trustee shall
be entitled to request and rely upon a certificate of the Master Servicer,
Special Servicer or the Depositor in determining whether a Certificate is
registered in the name of an Affiliate of such Person.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent, if any, and otherwise on the books of a Depository
Participant, if any, and otherwise on the books of the Depository.
"Certificate Register" or "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 8.02. The initial
Certificate Registrar shall be the Trustee.
7
"CIBC": CIBC Inc.
"Class": Collectively, all of the Certificates bearing the same
capital letter designation.
"Class A1 Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class A2 Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class A3 Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class B Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class Balance": With respect to any Class, the aggregate principal
amount of such Class outstanding as of any date of determination equal to the
Original Class Balance thereof minus any amounts allocated or distributed to
such Class in reduction of its Class Balance pursuant to the terms hereof.
"Class C Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class D Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class E Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class F Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class G Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class H Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class J Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class K Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class L Certificate": Any of the Certificates issued hereunder and
designated as such.
8
"Class M Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class Notional Amount": With respect to:
(i) the Class X1 Certificates and any Distribution
Date, the sum of the Class Balances of the Class
A1, Class A2, Class A3, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M and Class NR
Certificates immediately preceding such
Distribution Date; and
(ii) the Class X2 Certificates and any Distribution
Date from the Delivery Date through the
Distribution Date in July, 2008, the sum of (A)
the lesser of the Class Balance of the Class A3
Certificates immediately preceding such
Distribution Date and $431,000,000, (B) the
Class Balances of the Class B, Class C and Class
D Certificates immediately preceding such
Distribution Date and (C) the lesser of the
Class Balance of the Class E Certificates
immediately preceding such Distribution Date and
$22,500,000. The Class Notional Amount for the
Class X2 Certificates will be $0 after the
Distribution Date in July, 2008.
"Class NR Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class Portion": With respect to any U.S. Treasury Net Prepayment
Premium on any Mortgage Loan and any Distribution Date and (a) any Class of
Certificates, other than the Class X Certificates and the Residual
Certificates, the product of (x) any U.S. Treasury Net Prepayment Premium for
such Mortgage Loan and Distribution Date, (y) the related Class Prepayment
Fraction for such Distribution Date and (z) the related Allocation Fraction
for such Mortgage Loan and Distribution Date and (b) the Class X1
Certificates, the excess of any U.S. Treasury Net Prepayment Premiums for such
Distribution Date over the amounts calculated pursuant to clause (a). The
Class X2 Certificates and the Residual Certificates will not have a Class
Portion.
"Class Prepayment Fraction": For any Class of Certificates and any
Distribution Date shall equal a fraction the numerator of which is the amount
of principal paid to such Class in reduction of the Class Balance thereof on
such Distribution Date and the denominator of which is the amount of principal
paid to all Classes of Certificates in reduction of their respective Class
Balances on such Distribution Date.
"Class R-I Certificate": Any of the Certificates issued hereunder
and designated as such.
9
"Class R-II Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class R-III Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class X Certificate": Any of the Class X1 Certificates and Class X2
Certificates issued hereunder and designated as such.
"Class X Component": Any of the Class X1 and Class X2 Components.
"Class X1 Component": Each of the following components of the Class
X Certificates:
(i) from the Delivery Date through the Distribution Date in July
2008:
(a) the Class A1X Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class A1 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class A1 Certificates immediately prior to such Distribution
Date;
(b) the Class A2X Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class A2 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class A2 Certificates immediately prior to such Distribution
Date;
(c) the Class A3AX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate of the Class A3 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the excess, if
any, of the excess of the Class Balance of the Class A3 Certificates
immediately prior to such Distribution Date over $431,000,000;
(d) the Class A3BX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the sum of the
Pass-Through Rate of the Class A3 Certificates and the Class A3X2
Component and a notional amount solely for purposes of calculating
interest thereon equal to the lesser of the Class Balance of the
Class A3 Certificates immediately prior to such Distribution Date
and $431,000,000;
(e) the Class BX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate
10
for such Distribution Date over the sum of the Pass-Through Rate of
the Class B Certificates and the Class BX2 Component and a notional
amount solely for purposes of calculating interest thereon equal to
the Class Balance of the Class B Certificates immediately prior to
such Distribution Date;
(f) the Class CX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the sum of the
Pass-Through Rate of the Class C Certificates and the Class CX2
Component and a notional amount solely for purposes of calculating
interest thereon equal to the Class Balance of the Class C
Certificates immediately prior to such Distribution Date;
(g) the Class DX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the sum of the
Pass-Through Rate of the Class D Certificates and the Class DX2
Component and a notional amount solely for purposes of calculating
interest thereon equal to the Class Balance of the Class D
Certificates immediately prior to such distribution Date;
(h) the Class EAX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate of the Class E Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the excess, if
any, of the excess of the Class Balance of the Class E Certificates
immediately prior to such Distribution Date over $22,500,000;
(i) the Class EBX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the sum of the
Pass-Through Rate of the Class E Certificates and the Class EX2
Component and a notional amount solely for purposes of calculating
interest thereon equal to the lesser of the Class Balance of the
Class E Certificates immediately prior to such Distribution Date and
$22,500,000;
(j) the Class FX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class F Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class F Certificates immediately prior to such Distribution
Date;
(k) the Class GX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class G Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class G Certificates immediately prior to such Distribution
Date;
11
(l) the Class HX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class H Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class H Certificates immediately prior to such Distribution
Date;
(m) the Class JX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class J Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class J Certificates immediately prior to such Distribution
Date;
(n) the Class KX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class K Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class K Certificates immediately prior to such Distribution
Date;
(o) the Class LX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class L Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class L Certificates immediately prior to such Distribution
Date;
(p) the Class MX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class M Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class M Certificates immediately prior to such Distribution
Date; and
(q) the Class NRX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class NR Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class NR Certificates immediately prior to such Distribution
Date.
The Pass Through Rates in respect of the Class A3BX1, Class BX1,
Class CX1, Class DX1 and Class EBX1 Components may also be expressed as the
excess of (A) the Weighted Average Remittance Rate over (B) the Weighted
Average Remittance Rate less 0.01%; provided, that the amount specified in
this clause (B) is subject to a cap equal to the sum of the Pass Through Rates
of: (i) the Class A3 Certificates and 1.07% in the case of the Class
12
A3BX1 Component, (ii) the Class B Certificates and 0.91% in the case of the
Class BX1 Component, (iii) the Class C Certificates and 0.76% in the case of
the Class CX1 Component, (iv) the Class D Certificates and 0.65% in the case
of the Class DX1 Component, and (v) the Class E Certificates and 0.36% in the
case of the Class EBX1 Component, and their respective Pass Through Rates will
be so construed for federal income tax purposes.
(ii) from the Distribution Date in August 2008 through the final
Distribution Date:
(a) the Class A1X Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class A1 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class A1 Certificates immediately prior to such Distribution
Date;
(b) the Class A2X Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class A2 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class A2 Certificates immediately prior to such Distribution
Date;
(c) the Class A3AX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class A3 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the excess, if
any, of the Class Balance of the Class A3 Certificates immediately
prior to such Distribution Date over $431,000,000;
(d) the Class A3BX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class A3 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the lesser of the
Class Balance of the Class A3 Certificates immediately prior to such
Distribution Date and $431,000,000;
(e) the Class BX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class B Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class B Certificates immediately prior to such Distribution
Date;
(f) the Class CX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class C Certificates
13
and a notional amount solely for purposes of calculating interest
thereon equal to the Class Balance of the Class C Certificates
immediately prior to such Distribution Date;
(g) the Class DX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class D Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class D Certificates immediately prior to such Distribution
Date;
(h) the Class EAX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class E Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the excess, if
any, of the Class Balance of the Class E Certificates immediately
prior to such Distribution Date over $22,500,000;
(i) the Class EBX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class E Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the lesser of the
Class Balance of the Class E Certificates immediately prior to such
Distribution Date and $22,500,000;
(j) the Class FX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class F Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class F Certificates immediately prior to such Distribution
Date;
(k) the Class GX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class G Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class G Certificates immediately prior to such Distribution
Date;
(l) the Class HX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class H Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class H Certificates immediately prior to such Distribution
Date;
14
(m) the Class JX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class J Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class J Certificates immediately prior to such Distribution
Date;
(n) the Class KX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class K Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class K Certificates immediately prior to such Distribution
Date;
(o) the Class LX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class L Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class L Certificates immediately prior to such Distribution
Date;
(p) the Class MX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class M Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class M Certificates immediately prior to such Distribution
Date; and
(q) the Class NRX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class NR Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class NR Certificates immediately prior to such Distribution
Date.
"Class X2 Component": From the Delivery Date through the
Distribution Date in July 2008, each of the following components of the Class
X Certificates:
(a) the Class A3X2 Component, with a Pass-Through Rate for any
Distribution Date equal to the lesser of (i) 1.07% per annum and
(ii) the excess of the Weighted Average Remittance Rate less 0.01%
for such Distribution Date over the Pass-Through Rate for the Class
A3 Certificates and a notional amount solely for purposes of
calculating interest thereon equal to the lesser of the Class
Balance of the Class A3 Certificates immediately prior to such
Distribution Date and $431,000,000;
15
(b) the Class BX2 Component, with a Pass-Through Rate for any
Distribution Date equal to the lesser of (i) 0.91% per annum and
(ii) the excess of the Weighted Average Remittance Rate less 0.01%
for such Distribution Date over the Pass-Through Rate for the Class
B Certificates and a notional amount solely for purposes of
calculating interest thereon equal to the Class Balance of the Class
B Certificates immediately prior to such Distribution Date;
(c) the Class CX2 Component, with a Pass-Through Rate for any
Distribution Date equal to the lesser of (i) 0.76% per annum and
(ii) the excess of the Weighted Average Remittance Rate less 0.01%
for such Distribution Date over the Pass-Through Rate for the Class
C Certificates and a notional amount solely for purposes of
calculating interest thereon equal to the Class Balance of the Class
C Certificates immediately prior to such Distribution Date;
(d) the Class DX2 Component, with a Pass-Through Rate for any
Distribution Date equal to the lesser of (i) 0.65% per annum and
(ii) the excess of the Weighted Average Remittance Rate less 0.01%
for such Distribution Date over the Pass-Through Rate for the Class
D Certificates and a notional amount solely for purposes of
calculating interest thereon equal to the Class Balance of the Class
D Certificates immediately prior to such distribution Date;
(e) the Class EX2 Component, with a Pass-Through Rate for any
Distribution Date equal to the lesser of (i) 0.36% per annum and
(ii) the excess of the Weighted Average Remittance Rate less 0.01%
for such Distribution Date over the Pass-Through Rate for the Class
E Certificates and a notional amount solely for purposes of
calculating interest thereon equal to the Class Balance of the Class
E Certificates immediately prior to such Distribution Date and
$22,500,000;
The Pass Through Rates in respect of the Class A3X2, Class BX2,
Class CX2, Class DX2 and Class EX2 Components may also be expressed as the
excess of (A) the Weighted Average Remittance Rate less 0.01% subject to a cap
equal to the sum of the Pass Through Rates of: (i) the Class A3 Certificates
and 1.07% in the case of the Class A3X2 Component, (ii) the Class B
Certificates and 0.91% in the case of the Class BX2 Component, (iii) the Class
C Certificates and 0.76% in the case of the Class CX2 Component, (iv) the
Class D Certificates and 0.65% in the case of the Class DX2 Component, and (v)
the Class E Certificates and 0.36% in the case of the Class EX2 Component over
(B) the Pass Through Rates of: (i) the Class A3 Certificates in the case of
the Class A3X2 Component, (ii) the Class B Certificates in the case of the
Class BX2 Component, (iii) the Class C Certificates in the case of the Class
CX2 Component, (iv) the Class D Certificates in the case of the Class DX2
Component, and (v) the Class E Certificates in the case of the Class EX2
Component, and their respective Pass Through Rates will be so construed for
federal income tax purposes.
Notwithstanding the foregoing, after the Distribution Date in July
2008 (i) the Pass Through Rates in respect of the Class A3X2, Class BX2, Class
CX2, Class DX2 and Class EX2 components shall be zero and (ii) the Class X2
Certificates will not receive distributions.
16
"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, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors
holding or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in
one of the preceding sentences of this definition does not exist, "CMSA" shall
be deemed to refer to such other association or organization as shall be
selected by the Master Servicer and reasonably acceptable to the Trustee, the
Special Servicer and the Directing Certificateholder.
"CMSA Bond Level File": The monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Bond Level File" available as of the Delivery Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as such
report requires the presentation of information in addition to that called for
by the form of the "Bond Level File" available as of the Delivery Date on the
CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File": The report substantially in the form
of, and containing the information called for in the downloadable form of the
"Collateral Summary File" available as of the Delivery Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as such report requires the presentation of information in addition to
that called for by the form of the "Collateral Summary File" available as of
the Delivery Date on the CMSA Website, is reasonably acceptable to the
Trustee.
"CMSA 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 Delivery
Date on the CMSA Website, or such other form for the presentation of such
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and, insofar as such report
requires the presentation of information in addition to that called for by the
form of the "Comparative Financial Status Report" available as of the Delivery
Date on the CMSA Website, is reasonably acceptable to the Master Servicer or
the Special Servicer, as applicable. For the purposes of the production by
Master Servicer or the Special Servicer of any such report that is required to
state information with respect to any Mortgage Loan for any period prior to
the end of the initial Collection Period, the Master Servicer or the Special
Servicer, as the case may be, may conclusively rely (without independent
verification), absent manifest error, on information provided to it by the
related Mortgage Loan Seller, by the related Mortgagor or (x) in the case of
17
such a report produced by the Master Servicer, by the Special Servicer, (if
other than the Master Servicer or an Affiliate thereof) and (y) in the case of
such a report produced by the Special Servicer, by the Master Servicer (if
other than the Special Servicer or an Affiliate thereof).
"CMSA 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 Delivery Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as such report requires the presentation of information
in addition to that called for by the form of the "Delinquent Loan Status
Report" available as of the Delivery Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Financial File" available as of the Delivery Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as such
report requires the presentation of information in addition to that called for
by the form of the "Financial File" available as of the Delivery Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA 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 Delivery Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as such report requires the presentation of information
in addition to that called for by the form of the "Historical Liquidation
Report" available as of the Delivery Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Historical Loan Modification Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Historical Loan Modification Report" available as of the Delivery
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as such report requires the presentation
of information in addition to that called for by the form of the "Historical
Loan Modification Report" available as of the Delivery Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA IRP": shall mean, collectively
(a) the following six electronic files: (i) CMSA Loan Setup
File, (ii) CMSA Loan Periodic Update File, (iii) CMSA Property File,
(iv) CMSA Bond
18
Level File, (v) CMSA Financial File and (vi) CMSA
Collateral Summary File; and
(b) the following eight supplemental reports: (i) CMSA
Delinquent Loan Status Report, (ii) CMSA Historical Loan
Modification Report, (iii) CMSA Historical Liquidation Report, (iv)
CMSA REO Status Report, (v) CMSA Operating Statement Analysis
Report, (vi) CMSA Comparative Financial Status Report, (vii) CMSA
Servicer Watch List and (viii) CMSA NOI Adjustment Worksheet.
"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 "Loan Periodic Update File" available as of the Delivery Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as such report requires the presentation of information
in addition to that called for by the form of the "Loan Periodic Update File"
available as of the Delivery Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable, and
the Trustee.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Delivery Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as such
report requires the presentation of information in addition to that called for
by the form of the "Loan Setup File" available as of the Delivery Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable, and the Trustee.
"CMSA 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 Delivery Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as such report requires the presentation of information in addition to
that called for by the form of the "NOI Adjustment Worksheet" available as of
the Delivery Date on the CMSA Website, is acceptable to the Master Servicer or
the Special Servicer, as applicable.
"CMSA Operating Statement Analysis Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Delivery
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 recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as such report requires the presentation
of information in addition to that called for by the form of the "Operating
Statement Analysis
19
Report" available as of the Delivery Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Property File" available as of the Delivery Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as such
report requires the presentation of information in addition to that called for
by the form of the "Property File" available as of the Delivery Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA 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 Delivery 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 recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as such
report requires the presentation of information in addition to that called for
by the form of the "REO Status Report" available as of the Delivery Date on
the CMSA Website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Servicer Watch List": For any Determination Date, a report
substantially in the form of, and containing the information called for in,
Exhibit P; provided, that upon the CMSA's adoption of "Servicer Watch List"
criteria, a report in the form of and containing the information in the
downloadable form of the "Servicer Watch List" then available 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 recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as such report requires the presentation of information in addition to
that called for by the form of the "Servicer Watch List" available on the CMSA
Website, a report which is reasonably acceptable to the Master Servicer or
Special Servicer, as applicable.
"CMSA Website": The CMSA Website located at "xxx.xxxx.xxx" or such
other primary Website as CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended.
"Collateral Value Adjustment": With respect to a Mortgage Loan as to
which a Collateral Value Adjustment Event has occurred, an amount equal to the
excess of (a) the Stated Principal Balance of the Mortgage Loan as of the date
of the Collateral Value Adjustment Event over (b) the excess of (i) 90% of the
current appraised value of the related Mortgaged Property as determined by an
Independent MAI appraisal thereof prepared in accordance with 12 C.F.R. ss.
225.62 (or, in the case of Mortgage Loans having a principal balance under
$2,000,000, an Appraisal Estimate), over (ii) the sum of (A) to the extent not
previously advanced by the Master Servicer, all unpaid interest on such
Mortgage Loan at a per annum rate equal to the Mortgage Rate, (B) all
unreimbursed Advances and interest thereon at the Advance Rate and (C) all
currently due and delinquent real estate taxes and assessments, insurance
premiums and, if
20
applicable, ground rents in respect of such Mortgaged Property (net of any
amount escrowed or otherwise available for payment of any amounts due on the
related Mortgage Loans with respect to such Mortgage Loan or REO Property). If
an appraisal or Appraisal Estimate, as appropriate, is not obtained by the
Required Appraisal Date, until such appraisal or Appraisal Estimate, as
appropriate, is obtained there shall be a Collateral Value Adjustment with
respect to the related Mortgage Loan equal to 25% of the Stated Principal
Balance of such Mortgage Loan; provided, however, that upon the subsequent
receipt of an appraisal or Appraisal Estimate, as appropriate, the Collateral
Value Adjustment for such Mortgage Loan will be recalculated in accordance
with this definition without regard to this sentence. Notwithstanding anything
contained in this definition to the contrary, a Collateral Value Adjustment
will be zero with respect to such Mortgage Loan if (i) the event giving rise
to such Collateral Value Adjustment is the extension of the maturity of such
Mortgage Loan, (ii) the payments on such Mortgage Loan were not delinquent
during the twelve months preceding such extension and (iii) the payments on
such Mortgage Loan were then-current, provided that if at any later date there
occurs a delinquency in payment with respect to such Mortgage Loan, the
Collateral Value Adjustment will be recalculated and applied as described
above.
"Collateral Value Adjustment Event": With respect to any Mortgage
Loan the earliest to occur of (i) 120 days after the date on which an uncured
delinquency occurs in respect of such Mortgage Loan, (ii) the date on which a
receiver is appointed in respect of the related Mortgaged Property, (iii) the
date on which the related Mortgaged Property becomes an REO Property, (iv) the
date on which the payment rate, Mortgage Rate, principal balance, amortization
terms or Maturity Date of a Specially Serviced Mortgage Loan has been changed
or otherwise materially modified pursuant to and in accordance with the terms
hereof, (v) the date on which any petition in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been filed or commenced, as appropriate, against the related Mortgagor and
such petition shall have remained in force and not withdrawn for a period of
60 days or (vi) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due or filed a petition to
take advantage of any applicable insolvency or reorganization statute.
"Collection Account": The separate accounts, which shall be Eligible
Accounts, created and maintained for the Mortgage Loans pursuant to Section
4.02 hereof, which shall be entitled "Midland Loan Services, Inc., as Master
Servicer, for the benefit of Xxxxx Fargo Bank Minnesota, N.A., in trust for
the registered holders of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp. Mortgage Pass-Through Certificates Series 2001-CIBC2 Collection
Account".
"Collection Period": With respect to any Distribution Date, the
period beginning on and including the second day of the month preceding the
month of such Distribution Date (or, in the case of the initial Distribution
Date, the Cut-off Date) and ending on and including the first day of the month
of such Distribution Date.
"Condemnation Proceeds": With respect to each Mortgage Loan, all
awards or settlements in respect of a Mortgaged Property, partial or entire,
on account of the exercise of the power of eminent domain or condemnation,
held in an Escrow Account or in a trust account,
21
which is an Eligible Account (to the extent consistent with the terms of the
related Mortgage Loan Documents) related to such Mortgaged Property and
applied or to be applied to the restoration or repair of such Mortgaged
Property or required to be released to a Mortgagor or a third party in
accordance with the terms of the related Mortgage Loan Documents or, to the
extent not expressly provided therein, in accordance with Accepted Master
Servicing Practices or Accepted Special Servicing Practices, as applicable,
and applicable law.
"Corporate Trust Office": With respect to the Trustee, the principal
corporate trust office of the Trustee at which at any particular time its
corporate trust business with respect to this Agreement shall be administered,
which office at the date of the execution of this Agreement is located at
00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp. Mortgage Pass-Through
Certificates, Series 2001-CIBC2, and for certificate transfer purposes at
Sixth and Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp. Mortgage Pass-Through Certificates,
Series 2001-CIBC2.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
Section 6.12 (other than by reason of a Liquidation Event occurring in respect
of such Mortgage Loan or a related Mortgaged Property becoming an REO
Property).
"Cross Collateralized Loan": Any Mortgage Loan that is
cross-collateralized or cross-defaulted with any other Mortgage Loan.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 11.14 as a document custodian for the Mortgage Loan Files,
which Person shall not be the Depositor, the Person which originated the
related Mortgage Loan, a Mortgage Loan Seller, the related Mortgagor or an
Affiliate of any of the foregoing. The initial Custodian shall be the Trustee.
"Cut-off Date": July 1, 2001, except for Loan Number 116 which has a
Cut-off Date of July 5, 2001, Loan Numbers 1 and 50 which have a Cut-off Date
of July 10, 2001 and Loan Number 86 which has a Cut-off Date of July 18, 2001.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
net of the principal portion of all unpaid Monthly Payments due on or before
such date.
"Default Interest": Any accrued interest on a Mortgage Loan
allocable to the default interest rate for such Mortgage Loan, to the extent
permitted by law, as more particularly defined in the related Mortgage Loan
Documents. For the avoidance of doubt, "Default Interest" does not include any
interest calculated at the Mortgage Rate for the related Mortgage Loan. For
federal income tax purposes, any Default Interest will be an asset of the
grantor trust created pursuant to Section 3.11(q) and will be neither an asset
nor an obligation of REMIC I, REMIC II or REMIC III.
"Defaulted Mortgage Loan": Any Mortgage Loan which (a) is more than
60 days delinquent in whole or in part in respect of any Monthly Payment or
(b) is delinquent for more
22
than 30 days in whole or in part in respect of the related Balloon Payment, if
any, unless the Master Servicer reasonably expects the related Mortgagor will
continue to make Monthly Payments and the Master Servicer receives written
evidence from the related Mortgagor that the related Mortgagor has obtained a
binding commitment from an institutional lender to refinance the Mortgage
Loan, in which case the Mortgage Loan shall not become a Defaulted Mortgage
Loan until such longer period of time (not to exceed sixty (60) days from the
date of delinquency) within which the Mortgage Loan is expected to be paid in
full from proceeds of the refinancing loan.
"Defeasance Collateral": As defined in Section 3.16.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
or any reduction in the amount of principal to be paid in connection with any
scheduled Monthly Payment that constitutes a permanent forgiveness of
principal, which valuation results from a proceeding initiated under the
Bankruptcy Code or a state court deficiency proceeding.
"Definitive Certificate": Any certificated, fully registered
certificate.
"Delivery Date": July 31, 2001.
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
or its successor in interest.
"Depository": The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of 1934, as amended.
The initial Depository shall be The Depository Trust Company, the nominee of
which is CEDE & Co.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding the related Distribution Date.
"Determination Information": As defined in Section 6.05.
"Directing Certificateholder": The Monitoring Certificateholder
selected by a majority of the Monitoring Certificateholders, by Certificate
Balance, as certified by the Trustee from time to time; provided, that, absent
such selection, or (i) until a Directing Certificateholder is so selected, or
(ii) upon receipt of notice from a majority of the Monitoring
Certificateholders, by Certificate Balance, that a Directing Certificateholder
is no longer so designated, the Monitoring Certificateholder(s) which owns the
largest aggregate Certificate Balance of one or more Monitoring Classes shall
be the Directing Certificateholder. ARCap REIT, Inc. shall serve as the
initial Directing Certificateholder.
23
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation
of such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust Fund other than
through an Independent Contractor; provided, however, that the Trustee (or the
Master Servicer or the Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Master Servicer or the Special Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such REO Property.
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (ii)
any organization (other than a cooperative described in Section 521 of the
Code) which is exempt from the tax imposed by Chapter 1 of the Code unless
such organization is subject to the tax imposed by Section 511 of the Code, or
(iii) any organization described in Section 1381(a)(2)(C) of the Code. A
corporation will not be treated as an instrumentality of the United States or
of any State or any political subdivision thereof if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation (a corporate instrumentality of the United States), a majority of
its board of directors is not selected by a governmental unit.
"Distribution Date": The fifteenth (15th) day (or if any such day is
not a Business Day, the Business Day immediately succeeding such fifteenth
(15th) day) of each month beginning in August 2001.
"DSCR": With respect to any Mortgage Loan, the ratio of (a) monthly
operating revenues minus monthly operating expenses (as determined for
purposes of Section 4.10) for the related Mortgaged Property after giving
effect to replacement reserves, capital expenditures, tenant improvements,
leasing commissions, and without giving effect to debt service, depreciation,
amortization and similar non-operating items to (b) the related Monthly
Payments (net of Escrow Payments).
"Due Date": With respect to any Mortgage Loan, the day of the month
set forth in the related Mortgage Note on which each Monthly Payment thereon
is scheduled to be due.
"Eligible Account": Either:
(a) an account or accounts maintained with a federal or state
chartered depository institution or trust company (including the
Trustee) (i) to the extent funds are on deposit in such account for
a period not in excess of 30 days, the commercial paper, short-term
debt obligations or other short-term deposits of which have the
Required Rating or (ii) to the extent funds are on deposit in such
account for a period of more than 30 days, the long-term unsecured
debt obligations of which have a long term rating of at least "A" by
S&P and if rated by Fitch, a long-term rating of "A" by Fitch;
provided that if any such depository institution ceases to satisfy
the requirements set forth above, then each of such
24
accounts that are held by such depository institution shall be
transferred to a depository institution which satisfies such
requirements within 30 days; or
(b) a segregated trust account or accounts maintained with the
corporate trust department of a federal depository institution or
state chartered depository institution or a U.S. trust company
(including the Trustee) subject to regulations regarding fiduciary
funds on deposit set forth in or similar to 12 X.X.X.xx. 9.10(b)
which, in either case, has corporate trust powers, acting in its
fiduciary capacity and (A) whose accounts are fully insured by
FDIC's Bank Insurance Fund or Savings Associations Insurance Fund or
under the National Credit Union Administration's Share Insurance
Fund, (B) which are rated "C" or better by Thomson Bankwatch, Inc.
or "75" or better by IDC Financial Publishing, Inc., or (C) whose
long-term unsecured debt obligations are rated "AAA" or its
equivalent by each Rating Agency (or if such obligations are not
rated by Fitch, then an equivalent rating from at least two other
NRSROs) covering such debt obligation. In connection with
determining whether a depository institution satisfies the criteria
set forth in clauses (B) or (C) of the preceding sentence, each
Servicer and the Trustee shall each use ratings that have been
issued within the three-month period preceding the date of such
determination, and shall re-check the applicable ratings of any
depository institution with whom they have established an account no
less often than every three months. If any such depository
institution ceases to satisfy the requirements set forth above, then
each of such accounts that are held by such depository institution
shall be transferred to a depository institution which satisfies
such requirements within 30 days; or
(c) an account or accounts of a depository institution
acceptable to each Rating Agency (as evidenced in writing by each
Rating Agency that use of any such account as the Certificate
Account, Escrow Account, REO Account or Collection Account will not
result in a downgrading, qualification (if applicable) or withdrawal
of the ratings then assigned to the Certificates); or PNC, so long
as (1) for accounts to be held short term, PNC's short term
unsecured debt has a rating of at least "A-1" by S&P and "F-1+" by
Fitch or (2) for accounts to be held long term, PNC's long term debt
has a rating of at least "A" by S&P and "AA-" by Fitch.
"Environmental Laws": Any present or future federal, state or local
law, statute, regulation or ordinance, and any judicial or administrative
order or judgment thereunder, pertaining to health, industrial hygiene,
Hazardous Materials or the environment, including, but not limited to, each of
the following, as enacted as of the date hereof or as hereafter amended:
(i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42
X.X.X.xx.xx. 9601-9657;
(ii) the Resource Conservation and Recovery Act of
1976, 42 X.X.X.xx.xx. 6901-6991i;
25
(iii) the Toxic Substance Control Act, 15 X.X.X.xx.xx.
2601-2629;
(iv) the Water Pollution Control Act (also known as
the Clean Water Act), 33 X.X.X.xx. 1251 et seq.;
-- ----
(v) the Clean Air Act, 42 X.X.X.xx. 7401 et seq.;
and -- ----
(vi) the Hazardous Materials Transportation Act, 49
X.X.X.xx. 1801 et seq. -- ----
"Escrow Account": Each separate account or subaccount, each of which
shall be an Eligible Account (to the extent consistent with the related
Mortgage Loan Documents), created and maintained for the Mortgage Loans
pursuant to Section 4.06 hereof, each of which shall be entitled "Midland Loan
Services, Inc., as Master Servicer, for the benefit of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp. Mortgage Pass-Through Certificates,
Series 2001-CIBC2, Escrow Account".
"Escrow Payments": With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, fire and hazard insurance premiums, Payment Reserve,
Replacement Reserve, Repair and Remediation Reserve, Tenant Improvement and
Leasing Commissions Reserve and any other payments, in each case, to the
extent required to be escrowed by the Mortgagor pursuant to the Mortgage or
any other document included in the Mortgage Loan File.
"Event of Default": One or more of the events described in Section
10.01.
"Excess Cash Flow": Subject to the related Mortgage Loan Documents,
cash flow from the Mortgaged Property securing an ARD Loan after (i) required
payments for the tax and insurance fund and ground lease escrows fund, (ii)
payments of interest (at the Mortgage Rate) and principal (based on the
amortization schedule), (iii) payments to any other required escrow funds and
(iv) payment of operating expenses pursuant to the terms of an annual budget
approved by the Master Servicer (or the Special Servicer with respect to
Specially Serviced Mortgage Loans) or in an amount which is capped at 1/12 of
105% of the prior year's operating expenses (and, in the case of the Mortgage
Loans originated by CIBC, payment of capital expenses pursuant to the terms of
an annual budget approved by the Master Servicer and payment of any
extraordinary expenses approved by the Special Servicer, each as required by
the terms of the related Mortgage Loan Documents).
"Excess Condemnation Proceeds": With respect to each Mortgage Loan,
all awards or settlements in respect of a Mortgaged Property, whether
permanent or temporary, partial or entire, on account of the exercise of the
power of eminent domain or condemnation, other than any such awards or
settlements held in an Escrow Account or in a trust account, which shall be an
Eligible Account (to the extent consistent with the terms of the related
Mortgage Loan Documents) related to such Mortgaged Property and applied or to
be applied to the restoration or repair of such Mortgaged Property or required
to be released to a Mortgagor in accordance with the terms of the related
Mortgage Loan documents or, to the extent not expressly provided therein, in
accordance with Accepted Master Servicing Practices or Accepted Special
Servicing Practices, as applicable, and applicable law.
26
"Excess Insurance Proceeds": With respect to each Mortgage Loan,
proceeds of any primary hazard insurance policy required to be maintained
pursuant to Section 4.07, title insurance policy or any other Insurance Policy
covering such Mortgage Loan or the related Mortgaged Property, other than any
proceeds to be held in an Escrow Account or in a trust account, which shall be
an Eligible Account (to the extent consistent with the terms of the related
Mortgage Loan Documents) related to such Mortgage Loan and applied or to be
applied to the restoration or repair of the related Mortgaged Property or
required to be released to the related Mortgagor in accordance with the terms
of the related Mortgage Loan Documents or, to the extent not expressly
provided therein, in accordance with Accepted Master Servicing Practices or
Accepted Special Servicing Practices, as applicable, and applicable law.
"Excess Interest": Any accrued interest on an ARD Loan allocable to
the Excess Rate and, to the extent permitted by law, interest thereon at the
Revised Rate. For federal income tax purposes, any Excess Interest will be an
asset of the grantor trust created pursuant to Section 3.11(q) and will be
neither an asset nor an obligation of REMIC I, REMIC II or REMIC III.
"Excess Rate": With respect to each ARD Loan after the related
Anticipated Repayment Date, the excess of (i) the applicable Revised Rate over
(ii) the applicable Mortgage Rate in effect prior to the Anticipated Repayment
Date.
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"Final Certification": As defined in Section 2.02(b).
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan or REO Mortgage Loan, as
certified in writing by a Servicing Officer setting forth such determination
and the procedures and considerations of the Special Servicer forming the
basis of such determination, that there has been a recovery of all REO
Proceeds, Liquidation Proceeds and other payments or recoveries that the
Special Servicer, in its reasonable good faith judgment, expects to be
ultimately recoverable.
"First Union": First Union National Bank, a national banking
association and its successors in interest.
"Fitch": Fitch, Inc.
"Hazardous Materials": All materials subject to any Environmental
Law, including, without limitation, materials listed in 49 C.F.R. ss. 172.010,
materials defined as hazardous pursuant to ss. 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
flammable, explosive or radioactive materials, hazardous or toxic wastes or
substances, lead-based materials, petroleum or petroleum distillates or
asbestos or material containing asbestos, polychlorinated biphenyls ("PCBs"),
radon gas, urea formaldehyde and any substances classified as being "in
inventory", "usable work in process" or similar classification that would, if
classified as unusable, be included in the foregoing definition.
"Holder" or "Certificateholder": The Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving any consent,
27
approval or waiver pursuant to this Agreement, any Certificate registered in
the name of the Master Servicer, Special Servicer, the Depositor or any
Affiliate thereof shall be deemed not to be outstanding with respect to
Sections 10.04 and 13.01. The Trustee shall be entitled to request and rely
upon a certificate of the Master Servicer, the Special Servicer or the
Depositor in determining whether a Certificate is registered in the name of an
Affiliate of such Person.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Mortgage Loan Sellers and any
and all Affiliates thereof, (ii) does not have any direct financial interest
in or any material indirect financial interest in any of the Depositor, the
Master Servicer, the Special Servicer, the Mortgage Loan Sellers or any
Affiliate thereof, and (iii) is not connected with the Depositor, the Master
Servicer, the Special Servicer, the Mortgage Loan Sellers or any Affiliate
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 35% or
more of any Class or 35% 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 that the Special Servicer shall not be considered to be
an Independent Contractor under the definition in this clause (i) unless an
Opinion of Counsel (obtained at the expense of the Special Servicer) addressed
to the Special Servicer and the Trustee has been delivered to the Trustee to
the effect that the Special Servicer meets the requirements of such
definition) or (ii) any other Person (including the Special Servicer) if the
Special Servicer, on behalf of itself and the Trustee, has received an Opinion
of Counsel (obtained 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 with respect of such REO
Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Initial Certification": As defined in Section 2.02(b).
"Initial Monthly Payment Fund": $73,622.41 representing interest at
the related Mortgage Rate during the Collection Period ending in July 2001,
for those Mortgage Loans for which the Trustee will not be entitled to receive
such payment in accordance with the definition of "Trust Fund".
"Initial Subservicer": With respect to each Mortgage Loan that is
subject to a subservicing agreement with the Master Servicer as of the
Delivery Date, the subservicer under any such subservicing agreement.
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"Insurance Policy": With respect to any Mortgage Loan, any insurance
policy, including, without limitation, any environmental insurance policy,
required to be maintained under this Agreement or the related Mortgage Loan
Documents.
"Insurance Proceeds": With respect to each Mortgage Loan, proceeds
of any primary hazard insurance policy required to be maintained pursuant to
Section 4.07 hereof, or any other Insurance Policy covering such Mortgage Loan
or the related Mortgaged Property, to be held in an Escrow Account or in a
trust account, which is an Eligible Account (to the extent consistent with the
related Mortgage Loan Documents) related to such Mortgage Loan and applied or
to be applied to the restoration or repair of the related Mortgaged Property
or required to be released to the related Mortgagor in accordance with the
terms of the related Mortgage Loan Documents, or, to the extent not expressly
provided therein, in accordance with Accepted Master Servicing Practices or
Accepted Special Servicing Practices, as applicable, and applicable Law.
"Interest Accrual Amount": With respect to each Distribution Date
and any Class of Certificates (other than the Class X Certificates and the
Residual Certificates), interest accrued during the period from and including
the first day of the month preceding the month of the Distribution Date (or
the Cut-off Date with respect to the initial Distribution Date) to and
including the last day of the month preceding the month of the Distribution
Date (calculated on the basis of a 360-day year consisting of twelve 30-day
months) on the Class Balance outstanding immediately prior to such
Distribution Date at the then applicable Pass-Through Rate applicable to such
Class of Certificates for such Distribution Date. With respect to the Class X1
and Class X2 Certificates, respectively, the sum of interest accrued
(calculated pursuant to the first sentence hereof) for each of the Class X1
Components and the Class X2 Components, respectively.
"Interest Distribution Amount": With respect to each Distribution
Date and any Class, the Interest Accrual Amount for such Distribution Date and
such Class (x) reduced by the product of (a) the sum of (I) any excess of
Prepayment Interest Shortfalls for such Distribution Date over the sum of (A)
Prepayment Interest Excess, (B) Prepayment Premiums then available, and (C)
the amounts available as a result of an adjustment to the Master Servicer's
compensation pursuant to Section 4.13, calculated for the related Distribution
Date and (II) any interest not collectible pursuant to the Soldiers' and
Sailors' Civil Relief Act of 1940 and (b) the Interest Accrual Amount on such
Class divided by the Interest Accrual Amount for all Classes of Certificates
for such Distribution Date and (y) increased by any undistributed portion of
the Interest Distribution Amount for the prior Distribution Date plus interest
thereon at the related Pass-Through Rate. The Interest Distribution Amount for
the Class with the lowest priority with respect to the order of payment of
interest or principal shall be reduced further by the portion of any interest
deferred with respect to any Mortgage Loans. Such deferred amount, together
with interest at the related Pass-Through Rate, shall be payable to the extent
it is collected after such Distribution Date.
"Interest Reserve Account": The account, which shall be an Eligible
Account or a subaccount of the Certificate Account, created and maintained by
the Trustee pursuant to Section 3.17 in trust for the Certificateholders,
which shall be entitled "Xxxxx Fargo Bank Minnesota, N.A., as Trustee, in
trust for registered holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Mortgage Pass-Through Certificates, Series
2001-CIBC2--Interest Reserve Account."
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"Interest Reserve Loan": Any Mortgage Loan bearing interest computed
on an actual/360 basis.
"Interested Person": As of any date of determination with respect to
any Mortgage Loan, the Mortgagor, the related Mortgage Loan Seller, the
Depositor, the Special Servicer or the Master Servicer.
"Law": Any judgment, order, decree, writ, injunction, award,
statute, rule, regulation or requirement of any federal, provincial, state,
local or other agency, commission, instrumentality, tribunal, governmental
authority, arbitrator or court having or asserting jurisdiction over any
particular Person, property or matter applicable to such particular Person,
property or matter.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made with respect to such Mortgage Loan; (iii) such
Mortgage Loan is repurchased by the Depositor pursuant to Section 2.04 or
Section 12.01; (iv) such Mortgage Loan is purchased by an Option Holder
pursuant to Section 6.05; or (v) such Mortgage Loan is purchased by the Master
Servicer or the Special Servicer pursuant to Section 12.01.
"Liquidation Fee": With respect to each Specially Serviced Mortgage
Loan, the fee designated as such and payable to the Special Servicer pursuant
to Section 6.13.
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.00%.
"Liquidation Proceeds": Cash (excluding any Insurance Proceeds,
Condemnation Proceeds and REO Proceeds) received in connection with the
discounted, whole or partial liquidation of a Defaulted Mortgage Loan, whether
through the sale or assignment of such Defaulted Mortgage Loan or REO
Property, trustee's sale, foreclosure sale or otherwise.
"Loan Number": The designation of a Mortgage Loan as set forth in
the Mortgage Loan Schedule.
"Loss Mortgage Loan": Any Mortgage Loan (a) as to which a
Liquidation Event has occurred resulting in a Realized Loss, or (b) with
respect to which a Deficient Valuation has been made or a portion of the
principal balance thereof has been otherwise permanently forgiven.
"MAI": Member of Appraisal Institute.
"Master Remittance Date": With respect to each Distribution Date,
one Business Day preceding such Distribution Date.
"Master Servicer": Midland Loan Services, Inc., a Delaware
corporation, its successor in interest, or any successor servicer appointed as
such as herein provided.
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"Master Servicing Fee": As defined in Section 4.12 hereof.
"Master Servicing Fee Rate": With respect to each Mortgage Loan, the
sum of the Basic Master Servicing Fee Rate and the related rate set forth
under "Additional Servicing Fee Rate" in the Mortgage Loan Schedule.
"Maturity Date": With respect to any Mortgage Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Mortgage Note.
"MGT": Xxxxxx Guaranty Trust Company of New York, and its successors
in interest.
"Minimum Master Servicing Fee Rate": A rate of 0.01% per annum.
"Monitoring Certificateholder": Each Holder (or Certificate Owner,
if applicable) of a Certificate of a Monitoring Class as certified to the
Trustee in the form attached as Exhibit U from time to time by such Holder or
Certificate Owner.
"Monitoring Certificateholder's Option Period": As defined in
Section 6.05(a).
"Monitoring Class": As defined in Section 11.02(c).
"Monitoring Class Option Holder": As defined in Section 6.05(a).
"Monthly Payment": With respect to any Mortgage Loan and any Due
Date, the scheduled monthly payment with respect to such Mortgage Loan,
including any Escrow Payments but excluding any Balloon Payment, which is
payable by a Mortgagor under the related Mortgage Note (or if modified, as
modified in accordance with this Agreement) and applicable Law and, with
respect to a Balloon Mortgage Loan for which a Balloon Payment is due and has
not been made, the monthly payment with respect to such Balloon Mortgage Loan
that would be payable on and after the related Maturity Date based on the full
amortization schedule determined by the Special Servicer.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note, including the assignment of leases and rents related
thereto.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee for the benefit of the Certificateholders pursuant to Section
2.01 or Section 2.02 and from time to time held in the Trust Fund, the
Mortgage Loans so held pursuant to Sections 2.01 and 2.02 being identified on
the Mortgage Loan Schedule (including, any successor REO Mortgage Loan). As
used herein, the term "Mortgage Loan" includes the related Mortgage Note,
Mortgage and other security documents contained in the related Mortgage Loan
File.
"Mortgage Loan Documents": With respect to each Mortgage Loan, to
the extent applicable, the Mortgage, Mortgage Note, Assignment of Mortgage,
Assignment of Leases and Rents (if separate from the Mortgage), any security
agreements, any UCC Financing Statements, any intercreditor agreements, the
title insurance policy, all surveys,
31
all insurance policies (including all environmental insurance policies), any
environmental liabilities agreements, any escrow agreements for improvements,
any guaranties related to such Mortgage Loan, any prior assignments of
mortgage in the event that the originator is not the originator of record, any
collateral assignments of property management agreements and other services
agreements required by the applicable commitment and other loan documents and
all modification, consolidation and extension agreements, if any.
"Mortgage Loan File": In connection with any Mortgage Loan, all the
documents held or required to be held by the Custodian pertaining to such
Mortgage Loan, including the Mortgage Loan Documents, the related appraisal,
reports regarding physical and structural characteristics and condition of the
related Mortgaged Property, reports regarding environmental condition of the
related Mortgaged Property, ground leases, lease subordination agreements and
tenant estoppel and related opinions of counsel.
"Mortgage Loan Purchase Agreements": Collectively, (i) the mortgage
loan purchase agreement, dated as of July 1, 2001 between MGT and the
Depositor related to the transfer and assignment of the Mortgage Loans listed
on Exhibit A thereto; and (ii) the mortgage loan purchase agreement, dated as
of July 1, 2001 between CIBC and the Depositor related to the transfer and
assignment of the Mortgage Loans listed on Exhibit A thereto. A form Mortgage
Loan Purchase Agreement is attached hereto as Exhibit I.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred to
the Trustee as part of the Trust Fund, attached hereto as Exhibit G.
"Mortgage Loan Sellers": Collectively, MGT and CIBC, each in its
capacity as mortgage loan seller under the related Mortgage Loan Purchase
Agreement. Any one of the foregoing is referred to herein as a "Mortgage Loan
Seller".
"Mortgage Note": The note or other evidence of indebtedness of a
Mortgagor under a Mortgage Loan, together with all riders thereto and
amendments thereof.
"Mortgage Rate": With respect to any Mortgage Loan, the annual rate
at which interest accrues on such Mortgage Loan in accordance with the terms
of the related Mortgage Loan absent default and without giving effect to any
Excess Rate on an ARD Loan.
"Mortgaged Property": The underlying property (including any REO
Property) that secures a Mortgage Loan, in each case consisting of a fee
simple or leasehold interest in a parcel or parcels of land improved by a
commercial and/or multifamily building or facility, together with any personal
property, fixtures, leases and other property or rights pertaining thereto.
"Mortgagor": The obligor or obligors on a Mortgage Note.
"Most Subordinate Class of Certificates": At the time of
determination, the Class to which any Realized Losses would be first allocated
as of such time in accordance with Section 7.05.
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"Nonrecoverable Advance": Any Advance previously made or proposed to
be made by the Master Servicer, the Special Servicer or the Trustee, as
applicable, in respect of a Mortgage Loan, which together with interest
thereon, in the reasonable judgment of such Person, will not, or, in the case
of a proposed Advance, would not, be ultimately recoverable by such Person
from net proceeds or collections received solely with respect to such Mortgage
Loan or the related Mortgaged Property, including related Liquidation
Proceeds, REO Proceeds, Excess Insurance Proceeds, Excess Condemnation
Proceeds and escrowed amounts.
"Nonrecoverable Advance Certificate": A certificate signed by a
Servicing Officer setting forth the determination of a Nonrecoverable Advance,
and accompanied by the procedures and considerations of the Master Servicer or
the Special Servicer, as applicable, forming the basis of such determination
(including, without limitation, information such as related income and expense
statements, rent rolls, occupancy status, property inspections, and an
Independent MAI appraisal of the related Mortgaged Property obtained within
the preceding twelve months).
"Non-United States Person": Any person other than a United States
Person.
"Non-U.S. Treasury Net Prepayment Premium": With respect to any
Distribution Date, any Allocated Net Prepayment Premiums for such Distribution
Date which are not U.S. Treasury Net Prepayment Premiums.
"NRSRO": A nationally recognized statistical rating organization.
"Officers' Certificate": With respect to any Servicer, a certificate
signed by a Servicing Officer of such Servicer.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Master Servicer or
Special Servicer, acceptable and delivered to the Trustee, except that any
opinion of counsel relating to (a) the qualification of the Trust Fund as a
REMIC, (b) compliance with the REMIC Provisions, or (c) any actions or duties
which can not be undertaken or are no longer permitted under applicable law,
must be an opinion of counsel who is in fact Independent.
"Option Holder": As defined in Section 6.05.
"Option Price": As defined in Section 6.05.
"Original Class Balance": As to any Class of Certificates with a
Class Balance, the Original Class Balance set forth in the Preliminary
Statement.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether
direct or indirect, legal or beneficial, as owner or as pledgee.
"P&I Advance": Any amounts identified in Section 4.05(a) as a P&I
Advance.
33
"Pass-Through Rate": With respect to any Distribution Date and any
Class, other than the Class X and the Residual Certificates, a per annum rate
equal to the corresponding Pass-Through Rate as set forth in the Preliminary
Statement. With respect to any Distribution Date and the Class X Certificates,
a per annum rate equal to the corresponding Pass-Through Rate as set forth in
the definitions of "Class X1 Components" and "Class X2 Components". The
Residual Certificates will not have a Pass-Through Rate.
"Payment Reserve": With respect to a Mortgage Loan, the amount, if
any, of principal and interest payable thereon required, pursuant to the
related Mortgage Loan Documents, to be deposited into an escrow account to
cover a portion of the related Mortgagor's debt service obligations
thereunder.
"Percentage Interest": With respect to any Class of Certificates,
the portion of the relevant Class evidenced by such Certificate, expressed as
a percentage, the numerator of which is the initial Certificate Balance or
initial notional amount of such Certificate as of the Delivery Date, as
specified on the face thereof, and the denominator of which is the Original
Class Balance or Class Notional Amount of the relevant Class.
"Permitted Investments": Any one or more of the obligations and
securities listed below that provide for a date of maturity of not more than
30 days but in any event not later than the date prior to the date such funds
will be required to be distributed:
(i) direct obligations of, and obligations fully
guaranteed by, the United States of America, or
any agency or instrumentality of the United
States of America the obligations of which are
backed by the full faith and credit of the
United States of America;
(ii) federal funds, demand and time deposits in,
unsecured certificates of deposits of, or
bankers' acceptances issued by, any depository
institution or trust company incorporated or
organized under the laws of the United States of
America or any state thereof and subject to
supervision and examination by federal and/or
state banking authorities, the commercial paper
or other short-term debt obligations of such
depository institution or trust company (or, in
the case of a depository institution or trust
company which is the principal subsidiary of a
holding company, the commercial paper or other
short-term debt obligations of such holding
company) which are rated at least "A-1+" by S&P
and "F-1+" by Fitch;
(iii) commercial or finance company paper (including
both non-interest-bearing discount obligations
and interest-bearing obligations payable on
demand or on a specified date not more than 270
days after the date of issuance thereof) that
has the Required Rating for short-term debt;
34
(iv) repurchase obligations with respect to any
security described in clause (i) above entered
into with a depository institution or trust
company (acting as principal) meeting the rating
standards described in clause (ii) above and
having maturities of not more than 365 days;
(v) units of investment funds (including money
market funds) rated in the highest long-term
category by Fitch and S&P or if not rated by
Fitch and S&P then otherwise approved by Fitch
and S&P; and
(vi) any other obligation or security acceptable to
each Rating Agency, as indicated in writing,
that would not result in a downgrading,
qualification (if applicable) or withdrawal of
the ratings then assigned to the Certificates;
provided, however, that no such instrument shall be a Permitted Investment (v)
if such instrument evidences a right to receive either (A) only interest
payments with respect to the obligations underlying such instrument or (B)
both principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations; (w) if its terms do not have a
predetermined fixed dollar amount of principal due at maturity that cannot
vary or change; (x) to the extent rated, an "r" highlighter is affixed to its
rating; (y) to the extent the related interest rate is variable, interest
thereon is not tied to a single interest rate index plus a single fixed spread
(if any), or does not move proportionately with that index; or (z) if such
instrument is purchased at a premium over par. Any obligations or securities
described above of the Trustee, in its commercial capacity, if otherwise
qualified, shall be Permitted Investments hereunder.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability corporation, limited liability company, limited liability
partnership, or government or any agency or political subdivision thereof.
"Phase I": A Phase I environmental site assessment report prepared
in accordance with the American Society of Testing Material's Standard E
1527-94, as amended, and including radon and asbestos reports.
"PNC": PNC Bank, National Association.
"Pool Factor": With respect to any Distribution Date, the fraction,
expressed as a percentage, the numerator of which is the aggregate Class
Balance of the Certificates, after giving effect to distributions made or to
be made on such Distribution Date and the denominator of which is the
aggregate original Class Balance of the Certificates.
"Prepayment Assumption": With respect to all Mortgage Loans other
than the ARD Loans, it is assumed for purposes of Section 3.11(o) that there
are no prepayments on the
35
Mortgage Loans. With respect to all ARD Loans, it is assumed for purposes of
Section 3.11(o) that the ARD Loans will be fully prepaid on their related
Anticipated Repayment Dates.
"Prepayment Interest Excess": With respect to any Distribution Date,
for each Mortgage Loan that was subject to a Principal Prepayment in full or
in part prior to the related Determination Date and after the preceding Due
Date, the amount of interest accrued at the Remittance Rate for such Mortgage
Loan on the amount of such Principal Prepayment during the period from and
after such Due Date, to the extent 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 after the related Determination Date and prior to the
following Due Date, the amount of interest that would have accrued at the
Remittance Rate for such Mortgage Loan on the amount of such Principal
Prepayment during the period commencing on the date as of which such Principal
Prepayment was applied to the unpaid principal balance of the Mortgage Loan
and ending on the day immediately preceding such Due Date, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or payable,
as set forth in the related Mortgage Note, by a Mortgagor in connection with a
Principal Prepayment.
"Primary Servicing Fees": The monthly fee payable by the Master
Servicer from the Master Servicing Fee to each Initial Subservicer, which
monthly fee accrues at the rate per annum specified as such in the Mortgage
Loan Schedule.
"Prime Rate": As of any day, the per annum rate reported in the
"Money Rates" section of The Wall Street Journal on the immediately preceding
Business Day as the prime rate.
"Principal Distribution Amount": With respect to any Distribution
Date an amount equal to, in each case to the extent not previously advanced,
the aggregate of (a) all scheduled payments of principal (other than Balloon
Payments) due on the Mortgage Loans on the related Due Date whether or not
received and all scheduled Balloon Payments received during the related
Remittance Period, (b) if the scheduled Balloon Payment is not received, with
respect to any Balloon Loans on and after the Maturity Date thereof, the
principal payment that would need to be received in the related month in order
to fully amortize such Balloon Loan with level monthly payments by the end of
the term used to derive scheduled payments of principal due prior to the
related Maturity Date, (c) to the extent not previously advanced, any
unscheduled principal recoveries received during the related Remittance Period
in respect of the Mortgage Loans, whether in the form of Liquidation Proceeds,
Excess Insurance Proceeds, Excess Condemnation Proceeds, REO Proceeds, amounts
received as a result of the purchase of any Mortgage Loan out of the Trust
Fund or receipt of overdue payments, and (d) any other portion of the Adjusted
Available Distribution Amount remaining undistributed after payment of any
interest payable on the Certificates pursuant to clause (xxiii) of Section
7.02(a) for the related or any prior Distribution Date, including any
Prepayment Interest Excess not offset by any Prepayment Interest Shortfall
occurring during the related Remittance Period or otherwise required to
reimburse the Master Servicer and interest distributions on the Mortgage
Loans, in excess of interest distributions on the Certificates, resulting from
the allocation of amounts described in this clause (d) to principal
distributions on the Certificates.
36
"Principal Prepayment": Any payment or other recovery of principal
on a Mortgage Loan that is received in advance of its scheduled Due Date which
is not accompanied by an amount of interest representing scheduled interest
due on any date or dates in any month or months subsequent to the month of
prepayment.
"Private Certificates": The Class X1, Class X2, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class NR, Class R-I,
Class R-II and Class R-III Certificates.
"Property Improvement Expenses": Any costs and expenses for repairs,
replacements or improvements which the Special Servicer deems advisable under
the circumstances, but only to the extent that they are paid to third Persons
in arms' length arrangements, which Persons may, to the extent expressly
approved in the related Asset Strategy Report, be Affiliates who are generally
in the business of providing such goods and services, and that such expenses
are reasonable for the types of goods or services provided in the geographical
area in which such goods or services are provided, designed to maintain or
improve the value of a Mortgaged Property or REO Property but not immediately
necessary to operate it, that are incurred for the purpose of facilitating the
sale of the related Specially Serviced Mortgage Loan or REO Property and
maximizing the proceeds thereof, including but not limited to the following:
(a) cosmetic improvements such as painting and landscaping; (b) build-out or
modification to suit a particular prospective or actual tenant or buyer; (c)
replacement of items which are obsolescent or wearing out but which may not be
dysfunctional; and (d) moneys paid to a tenant or buyer for a purpose similar
to a Property Improvement Expense.
"Property Inspection Report": The report prepared pursuant to
Section 4.09(a) hereof substantially in the form of Exhibit M.
"Property Protection Expenses": The following costs and expenses,
but, with respect to items (b) through (n) below, only to the extent that they
are paid to third persons in arms' length arrangements, which Persons may, to
the extent expressly approved in the related Asset Strategy Report, be
Affiliates who are generally in the business of providing such goods and
services, and that such expenses are reasonable for the types of goods or
services provided in the geographical area in which such goods or services are
provided: (a) real estate taxes, assessments and similar charges; (b) premiums
for insurance; (c) utility costs; (d) payments required under service
contracts, including but not limited to service contracts for heating,
ventilation and air conditioning systems, elevators, landscape maintenance,
pest extermination, security, model furniture, swimming pool service, trash
removal, answering service, credit checks and monitoring the satisfaction of
real estate tax assessments and the designation from time to time of special
flood hazard areas; (e) payroll costs and benefits for on-site maintenance
personnel, including but not limited to housekeeping employees, porters and
general maintenance and security employees; (f) property management fees; (g)
usual and customary leasing and sales brokerage expenses and commissions and
other costs and expenses associated with marketing, selling or otherwise
disposing of Specially Serviced Mortgage Loans or REO Properties including,
without limitation, marketing brochures, auction services, reasonable legal
fees, surveys, title insurance premiums and other title company costs; (h)
permits, licenses and registration fees and costs; (i) any expense necessary
in order to prevent or cure a breach under a lease, contract or agreement, if
the consequences of failure to prevent or cure could, in the sole
37
judgment of the Special Servicer, have a material adverse effect with respect
to the Mortgage Loan, REO Property or Mortgaged Property; (j) any expense
necessary in order to prevent or cure a material violation of any applicable
law, regulation, code or ordinance with respect to any Mortgaged Property,
including without limitation any environmental remediation; (k) costs and
expenses of appraisals, valuations, surveys, inspections, environmental
assessments, credit reports, or market studies (including, in each case,
review thereof); (l) transportation, lodging and other travel related costs
incurred by the Special Servicer in performing its duties under this
Agreement, provided that the travel expenses of the Special Servicer's
employees providing services under this Agreement shall be limited to the
lesser of actual expenses or a reasonable budgeted amount for each calendar
year; (m) other such reasonable marketing, legal, accountants, expert witness
fees and other fees and expenses incurred by the Special Servicer in
connection with the enforcement, collection, foreclosure, management and
operation of Specially Serviced Mortgage Loans or REO Properties, the
bankruptcy of any related Mortgagor, and the performance of their servicing
duties under this Agreement; and (n) such other expenses as are reasonable and
immediately necessary to operate, maintain, preserve or protect the Mortgaged
Property or REO Property.
"Purchase Option": As defined in Section 6.05.
"Purchase Option Notice": As defined in Section 6.05.
"Purchase Price": With respect to any Mortgage Loan to be purchased
pursuant to Section 2.02(c), Section 2.04 or any REO Property to be purchased
pursuant to Section 6.05(b), the outstanding principal balance thereof as of
the date of purchase, together with (i) all accrued and unpaid interest at the
Mortgage Rate on such Mortgage Loan to but not including the date of purchase,
(ii) all related Servicing Advances for which the Trust Fund or the related
Servicer has not been reimbursed and (iii) all accrued interest on related
Advances, Basic Special Servicing Fees, and any Additional Trust Fund Expense,
in each case allocable to such Mortgage Loan and unpaid to the Trust Fund,
including any expense arising out of the enforcement of the repurchase
obligation and any costs and Liquidation Fees associated with such repurchase.
"Qualified Insurer": An insurance company:
(a)(i) duly authorized and, if required, licensed in
such state to transact the applicable insurance
business and to write the insurance provided;
(ii) whose claims paying ability is rated either (A)
not less than (x) the lower of "A" or one rating
category below the highest rating for the
outstanding Certificates, but not less than "A",
by S&P, if rated by S&P and (y) "A" by Fitch, if
rated by Fitch, or (B) "A-(IX)" by AM Best,
Inc.; and
(iii) with respect to any insurance required pursuant
to Section 6.03(b), duly qualified as such under
the laws of the state in which the related
Mortgaged Property is located; or
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(b) acceptable to each Rating Agency (as evidenced in writing
by each Rating Agency that use of any such Qualified Insurer will
not result in a downgrading, qualification (if applicable) or
withdrawal of the ratings then assigned to the Certificates).
"Rated Final Distribution Date": The Distribution Date in April
2034, which is the first Distribution Date succeeding the second anniversary
of the date at which the Stated Principal Balance of all the Mortgage Loans
would be reduced to zero, assuming no prepayments, defaults or delinquencies,
and that the Mortgage Loans which are Balloon Mortgage Loans or ARD Loans
fully amortize according to their amortization schedule without a Balloon
Payment or final payment on the Anticipated Repayment Date, respectively.
"Rating Agency": Each of Fitch and S&P.
"Realized Loss": With respect to any Distribution Date and each Loss
Mortgage Loan (or REO Mortgage Loan) as to which a Final Recovery
Determination has occurred during the related Collection Period, an amount
(not less than zero) equal to (i) the outstanding principal balance of the
Loss Mortgage Loan (or REO Mortgage Loan) as of the beginning of the
Collection Period, plus (ii) all accrued and unpaid interest on related
Advances, plus (iii) all accrued and unpaid interest without taking the items
in (iv) into account, minus (iv) the proceeds, if any, received prior to the
Determination Date immediately preceding such Distribution Date, to the extent
applied as recoveries of interest and to principal of the Mortgage Loan. With
respect to each Mortgage Loan which has become the subject of a Deficient
Valuation, the difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the principal
balance of the Mortgage Loan as reduced by the Deficient Valuation.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs, except for the first Distribution Date in which case
the Delivery Date will be the Record Date.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto,
constituting the trust created hereby and to be administered hereunder,
consisting of: (a) the Mortgage Loans as from time to time are subject to this
Agreement and all payments under and proceeds of the Mortgage Loans received
after the Cut-off Date (other than payments of principal and interest due and
payable on the Mortgage Loans on or before the Cut-off Date), together with
all documents included in the related Mortgage Loan File; (b) such funds or
assets as from time to time are deposited in the Certificate Account (other
than funds collected in respect of Excess Interest and Default Interest); (c)
such funds or assets as from time to time are deposited in the Collection
Account, Escrow Account or REO Account; (d) any REO Property; and (e) the
rights of the mortgagee under all Insurance Policies with respect to the
Mortgage Loans listed on the Mortgage Loan Schedule.
"REMIC I Uncertificated Interests": Each of the one hundred
fifty-two interests with a principal balance and interest rate equal to that
of one of the Mortgage Loans.
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"REMIC II": A segregated pool of assets consisting of one hundred
fifty-two uncertificated regular interests issued under REMIC I.
"REMIC II Uncertificated Interests": Each of Uncertificated Interest
I, Uncertificated Interest II, Uncertificated Interest IIIA, Uncertificated
Interest IIIB, Uncertificated Interest IV, Uncertificated Interest V,
Uncertificated Interest VI, and Uncertificated Interest VII, Uncertificated
Interest VIII, Uncertificated Interest IX, Uncertificated Interest X,
Uncertificated Interest XI, Uncertificated Interest XII, Uncertificated
Interest XIII, Uncertificated Interest XIV and Uncertificated Interest XV.
"REMIC III": A segregated pool of assets consisting of
Uncertificated Interest I, Uncertificated Interest II, Uncertificated Interest
III, Uncertificated Interest IV, Uncertificated Interest V, Uncertificated
Interest VI, Uncertificated Interest VII, Uncertificated Interest VIII,
Uncertificated Interest IX, Uncertificated Interest X, Uncertificated Interest
XI and Uncertificated Interest XII.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
rulings promulgated thereunder, as the foregoing may be in effect from time to
time.
"Remittance Period": For any Distribution Date is the period
beginning after a Determination Date in the immediately preceding month (or
the Cut-off Date, in the case of the first Distribution Date) through the
related Determination Date.
"Remittance Rate": With respect to any Mortgage Loan, the per annum
rate equal to the excess of the related Mortgage Rate (without giving affect
to any modification or other reduction thereof following the Cut-off Date)
over the related Servicing Fee Rate. For this purpose, if the related Mortgage
Rate is calculated other than on the basis of a 360-day year consisting of
twelve 30-day months (a "30/360 basis"), such Mortgage Rate will be
recalculated on a 30/360 basis (except for Remittance Rates for the one-month
periods preceding the Due Dates in January of each calendar year that is not a
leap year and February); provided, however, that with respect to the Interest
Reserve Loans, (i) the Remittance Rate for the one-month period preceding the
Due Dates in (a) January of each calendar year that is not a leap year and (b)
February of each calendar year, will be determined net of the Withheld Amounts
and (ii) the Remittance Rate for the one-month period preceding the Due Dates
in March of each calendar year will be determined after taking into account
the addition of the Withheld Amount.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": One or more accounts established pursuant to Section
6.06.
"REO Acquisition": The acquisition by the Special Servicer on behalf
of the Trustee for the benefit of the Certificateholders of any Mortgaged
Property.
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"REO Mortgage Loan": Any Mortgage Loan as to which the related
Mortgaged Property has been acquired by the Special Servicer on behalf of the
Trustee through foreclosure or by deed in lieu of foreclosure, until the
Special Servicer has determined that all amounts that it reasonably expects to
recover from or on account of such Mortgage Loan have been recovered, whether
from Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds, REO
Proceeds or otherwise (in which case such Mortgage Loan shall no longer be an
REO Mortgage Loan).
"REO Proceeds": Proceeds (net of any directly related expenses,
including without limitation, Property Protection Expenses and Property
Improvement Expenses, incurred by the Special Servicer for the proper
operation, management and maintenance of the related REO Property) received in
respect of any REO Property (including, without limitation, proceeds from the
rental of the related Mortgaged Property) and cash received in connection with
the final liquidation of the related REO Property.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trust Fund through foreclosure or by deed in lieu of
foreclosure.
"REO Tax": As defined in Section 6.04(e).
"Repair and Remediation Reserve": With respect to any Mortgage Loan,
the amounts required to be paid by the Mortgagor, pursuant to the Mortgage
Loan Documents, contemporaneously with the execution thereof, for payment of
costs and expenses relating to certain maintenance, repairs and/or remedial or
corrective work.
"Replacement Reserve": With respect to any Mortgage Loan, the
amounts required to be paid by the Mortgagor pursuant to the Mortgage Loan
Documents for payment of costs and expenses in connection with the performance
of work on the roofs, chimneys, gutters, downspouts, paving, curbs, ramps,
driveways, balconies, porches, patios, exterior walls, exterior doors and
doorways, windows, elevators and mechanical and HVAC equipment or other
repairs on the related Mortgaged Property.
"Replacement Special Servicer": As defined in Section 6.16.
"Request for Release and Receipt of Documents": A written Request
for Release and Receipt of Documents, substantially in the form of Exhibit Y.
"Required Appraisal Date": With respect to any Mortgage Loan, the
date within 60 days of (a) any Collateral Value Adjustment Event or (b) the
occurrence of any event giving rise to a subsequent Collateral Value
Adjustment (including the delinquency referred to in clause (iii) of the last
sentence of the definition of "Collateral Value Adjustment") more than twelve
months after an appraisal was obtained with respect to a previous Collateral
Value Adjustment; provided, that if the Collateral Value Adjustment Event
relates to an uncured delinquency the Required Appraisal Date will be the date
which is 120 days after the date of such delinquency.
"Required Rating": The following ratings:
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(a) with respect to commercial paper, short-term debt
obligations or other short-term deposits, "A-1" by S&P and "F-1" by
Fitch; or
(b) with respect to long-term debt obligations, the long-term
rating of "A" by Fitch and "A" by S&P.
"Residual Certificate": Any of the Class R-I, Class R-II or Class
R-III Certificates.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to and working in its corporate trust department 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.
"Restricted Period": The period of 40 consecutive days from the
later of (i) the day on which the Certificates are first offered to persons
other than distributors (as defined in Regulation S) in reliance on Regulation
S and (ii) the Delivery Date.
"Revised Rate": With respect to any ARD Loan, the increased interest
rate after the Anticipated Repayment Date (in the absence of a default) for
each applicable Mortgage Loan, as calculated and as set forth in the related
Mortgage Loan Documents.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent instrument, whether contained in the related
Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security
for repayment of such Mortgage Loan.
"Servicer": The Master Servicer or the Special Servicer, as
applicable.
"Servicing Advance": Any expenses identified in this Agreement as a
Servicing Advance which are incurred by the Master Servicer consistent with
Accepted Master Servicing Practices or by the Special Servicer consistent with
Accepted Special Servicing Practices, as applicable, with respect to any
Mortgage Loan.
"Servicing Fee": With respect to any Mortgage Loan, the Master
Servicing Fee and/or the Basic Special Servicing Fee, as applicable.
"Servicing Fee Rate": With respect to any Mortgage Loan, shall equal
the sum of the related Master Servicing Fee Rate and the Trustee Fee Rate.
"Servicing Officer": With respect to any Servicer, any Assistant
Treasurer, Assistant Secretary, Assistant Vice President, Vice President or
other employee of such Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans under this Agreement and
authorized to act on behalf of such Servicer, as designated by inclusion on a
42
list of such Persons furnished to the Trustee and each other Servicer by the
related Servicer, as such list may from time to time be amended.
"Servicing Transfer Date": The date after the occurrence of a
Servicing Transfer Event on which the Special Servicer receives the
information, documents and records required to be delivered thereto pursuant
to Section 6.02(c).
"Servicing Transfer Event": The occurrence of any of the following
with respect to a Mortgage Loan: (i) such Mortgage Loan becomes a Defaulted
Mortgage Loan; (ii) the related Mortgagor has entered into or consented to
bankruptcy, appointment of a receiver or conservator or a similar insolvency
or similar proceeding, or the Mortgagor has become the subject of a decree or
order for such proceeding which shall have remained in force undischarged,
undismissed or unstayed for a period of 60 days; (iii) the Master Servicer or
the Special Servicer shall have received notice of the foreclosure or proposed
foreclosure of any other lien on the Mortgaged Property; (iv) the related
Mortgagor 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; (v) any other default has
occurred which has materially and adversely affected the value of the related
Mortgaged Loan and has continued unremedied for the applicable grace period
specified in the related Mortgage or Mortgage Note, as applicable; (vi) the
related Mortgaged Property becomes REO Property; (vii) if for any reason, the
Mortgaged Property is transferred and an assumption agreement pursuant to
Section 4.08 cannot be entered into; or (viii) the Master Servicer has
determined in its reasonable judgment that a default in the making of any
payment under the related Mortgage Loan is likely to occur within 30 days and
is likely to remain uncured for at least 60 days, or in the case of a Balloon
Mortgage Loan at least 90 days.
"Single-Purpose Entity" or "SPE": A person, other than an
individual, whose organizational documents provide that it is formed solely
for the purpose of assuming a Mortgage Loan and owning and pledging Defeasance
Collateral; does not engage in any business unrelated to such Mortgage Loan
and Defeasance Collateral; does not have any assets other than those related
to its interest in the Mortgage Loan and Defeasance Collateral or any
indebtedness other than as permitted by the related Mortgage; maintains its
own books, records and accounts, in each case which are separate and apart
from the books, records and accounts of any other person; conducts business in
its own name and uses separate stationery, invoices and checks; does not
guarantee or assume the debts or obligations of any other person; does not
commingle its assets or funds with those of any other person; transacts
business with affiliates on an arm's length basis pursuant to written
agreements; holds itself out as being a legal entity, separate and apart from
any other person. The SPE's organizational documents must provide that any
dissolution and winding up or insolvency filing for such entity requires the
unanimous consent of all partners or members, as applicable, and that such
documents may not be amended with respect to the Single-Purpose Entity
requirements during the term of the Mortgage Loan.
"Sole Certificateholder(s)": Any Holder or group of Holders, as the
case may be, of 100% of the Private Certificates.
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"Specially Serviced Mortgage Loan": Any Mortgage Loan, and, at the
Directing Certificateholder's option, any Cross Collateralized Loan that is
cross-collateralized with such Mortgage Loan, with respect to which a
Servicing Transfer Event has occurred and which has not ceased to be a
Specially Serviced Mortgage Loan pursuant to Section 6.12.
"Special Servicer": First Union, its successor in interest, or any
successor servicer appointed as such as herein provided.
"Startup Day": The Delivery Date.
"State Tax Laws": The laws of the states of New York and
Massachusetts as well as any state the applicability of which to the Trust or
the REMICs shall have been confirmed to the Trustee in writing either by the
delivery to the Trustee of an Opinion of Counsel to such effect (provided that
the Trustee shall have no obligation to seek or pay for any such Opinion of
Counsel), or by the delivery to the Trustee of a written notification to such
effect by the taxing authority of such state.
"Stated Principal Balance": With respect to any Mortgage Loan (other
than an REO Mortgage Loan), as of any date of determination, (a) the Cut-off
Date Balance, minus (b) the sum, without duplication, of:
(i) the principal portion of each Monthly Payment
and Balloon Payment due on such Mortgage Loan
after the Cut-off Date, to the extent received
from the Mortgagor or advanced and distributed
to Certificateholders before such date of
determination;
(ii) all Principal Prepayments received with respect
to such Mortgage Loan after the Cut-off Date, to
the extent distributed to Certificateholders
before such date of determination;
(iii) the principal portion of unscheduled payments
(other than Principal Prepayments) including all
Insurance Proceeds and Liquidation Proceeds
received with respect to such Mortgage Loan
after the Cut-off Date, to the extent
distributed to Certificateholders before such
date of determination; and
(iv) any reduction in the outstanding principal
balance of such Mortgage Loan resulting from the
allocation of a Realized Loss.
With respect to any REO Mortgage Loan, as of any date of determination, an
amount (not less than zero) equal to (x) the Stated Principal Balance of the
related Mortgage Loan as of the date of the related REO Acquisition, minus (y)
the sum of:
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(i) the principal portion of each P&I Advance made
with respect to such REO Mortgage Loan that was
distributed to Certificateholders before such
date of determination;
(ii) the principal portion of all Insurance Proceeds,
Liquidation Proceeds and REO Proceeds received
with respect to such REO Mortgage Loan, to the
extent distributed to Certificateholders before
such date of determination; and
(iii) any reduction in the outstanding principal
balance of such Mortgage Loan resulting from the
allocation of a Realized Loss.
A Mortgage Loan shall be deemed to be part of the Trust Fund and to have an
outstanding Stated Principal Balance through and including the Distribution
Date on which the proceeds, if any, received in connection with a Liquidation
Event in respect thereof are to be distributed to Certificateholders.
"Tax Matters Person": The "tax matters person" (as defined in the
REMIC Provisions) of each REMIC created hereunder.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed on behalf of the Trust Fund due to its classification as a
REMIC under the REMIC Provisions, together with any and all other information,
reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal or
State Tax Laws.
"Tenant Improvement and Leasing Commissions Reserve": With respect
to any Mortgage Loan, the amounts required to be paid by the Mortgagor
pursuant to the Mortgage Loan Documents to refit and release either vacant
space or blocks of space anticipated to be vacated during the term of
financing.
"Transfer Date": With respect to any Mortgage Loan, shall have the
meaning set forth herein.
"Transferable Servicing Interest": Subject to reduction by the
Trustee pursuant to Section 4.12, the amount by which the Master Servicing
Fees otherwise payable to the Master Servicer hereunder exceed the sum of (i)
the Primary Servicing Fees and (ii) the amount of such Master Servicing Fees
calculated using the Minimum Master Servicing Fee Rate.
"Trust Fund": REMIC I, REMIC II and REMIC III.
"Trustee": Xxxxx Fargo Bank Minnesota, N.A., a national banking
association or its successor in interest in its capacity as Trustee hereunder,
or any successor trustee appointed as herein provided.
45
"Trustee Fee": The fee payable to the Trustee in accordance with
Section 11.08(a).
"Trustee Fee Rate": Shall have the meaning set forth in Section
11.08(a).
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or, in the case of Louisiana or the Commonwealth of Puerto Rico,
the comparable provisions of Louisiana or Puerto Rico law, as applicable.
"Uncertificated Interest I": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class A1 Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest II": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class A2 Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest IIIA": An interest in REMIC II with a
principal balance equal to the excess of the Class Balance of the Class A3
Certificates over $431,000,000 which accrues interest at the Weighted Average
Remittance Rate.
"Uncertificated Interest IIIB": An interest in REMIC II with a
principal balance equal to the lesser of the Class Balance of the Class A3
Certificates and $431,000,000 which accrues interest at the Weighted Average
Remittance Rate.
"Uncertificated Interest IV": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class B Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest V": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class C Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest VI": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class D Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest VIIA": An interest in REMIC II with a
principal balance equal to the excess of the Class Balance of the Class E
Certificates over $22,500,000 which accrues interest at the Weighted Average
Remittance Rate.
"Uncertificated Interest VIIB": An Interest in REMIC II with a
principal balance equal to the lesser of the Class Balance of the Class E
Certificates and $22,500,000 which accrues interest at the Weighted Average
Remittance Rate.
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"Uncertificated Interest VIII": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class F Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest IX": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class G Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest X": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class H Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XI": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class J Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XII": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class K Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XIII": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class L Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XIV": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class M Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XV": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class NR Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Underwriter": Each of X.X. Xxxxxx Securities Inc., CIBC World
Markets Corp., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx
Xxxxx Barney Inc.
"United States Person": A citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under
the laws of, the United States, any state thereof or the District of Columbia
(except in the case of a partnership, to the extent provided in regulation
under the Code), or an estate whose income from sources without the United
States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States, or a trust as defined in ss.7701(a)(30) of the Code.
"U.S. Treasury Net Prepayment Premium": With respect to any Mortgage
Loan and any Distribution Date, any Allocated Net Prepayment Premiums for such
Distribution Date calculated under the related Mortgage Loan Documents by
reference to a U.S. Treasury rate.
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"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, 97.0% of all the Voting Rights shall be allocated
among the Class A1, Class A2, Class A3, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class NR
Certificates in proportion to the respective Class Balances, 1.00% of all
Voting Rights shall be allocated to the Class X1 Certificates, 1.00% of all
Voting Rights shall be allocated to the Class X2 Certificates, and 0.33% of
all Voting Rights shall be allocated to each of the Class R-I, Class R-II and
Class R-III Certificates. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. Allocations of Realized Losses and any other event which changes
such Class Balance will result in a corresponding change to such Class' Voting
Rights. Collateral Value Adjustments will not result in a change to a Class'
Voting Rights.
"Weighted Average Remittance Rate": With respect to any Distribution
Date, the rate per annum equal to the weighted average, expressed as a
percentage and rounded to four decimal places, of the Remittance Rates in
effect for the Mortgage Loans as of the commencement of the related Collection
Period, weighted on the basis of the respective Stated Principal Balances of
such Mortgage Loans outstanding immediately following the Distribution Date in
the related Collection Period.
"Withheld Amount": With respect to (a) each Interest Reserve Loan
and (b) each Distribution Date occurring in (i) January of each calendar year
that is not a leap year and (ii) February of each calendar year, an amount
equal to one day's interest at the related Mortgage Rate (less any Master
Servicing Fee and Trustee Fee payable therefrom) on the respective Stated
Principal Balance as of the Due Date in the month in which such Distribution
Date occurs, to the extent that a Monthly Payment or P&I Advance is made in
respect thereof.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to Section
6.13.
"Workout Fee Rate": With respect to each Corrected Mortgage Loan as
to which a Workout Fee is payable, 1.00%.
Section 1.02 Calculations.
Unless otherwise specified herein or in the related Mortgage Loan
Documents, all calculations described herein shall be made on the basis of a
360-day year consisting of twelve 30-day months.
Section 1.03 Rules of Construction.
Any action or delivery which is required pursuant to the terms
hereof which falls on a day which is not a Business Day will be due on the
immediately following Business Day, except as otherwise expressly provided
herein.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish the Trust Fund, appoint the Trustee as trustee
of the Trust Fund and assign to the Trustee without recourse all the right,
title and interest of the Depositor, in, to and under the mortgage loans
identified on the Mortgage Loan Schedule (the "Mortgage Loans"), including any
security interest therein for the benefit of the Depositor, and all other
assets included or to be included in the Trust Fund, to be held in trust for
the benefit of the Certificateholders. Such assignment includes all interest
and principal received or receivable on or with respect to the Mortgage Loans
(other than payments of principal and interest due and payable on the Mortgage
Loans on or before the Cut-off Date). The transfer of the Mortgage Loans and
related property accomplished hereby is absolute and, notwithstanding Section
13.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment, the Depositor
does hereby deliver to, and deposit with, the Trustee, as the initial
Custodian, the following documents or instruments (or copies thereof as
permitted by this Section) for each Mortgage Loan so assigned:
(i) the original or, if accompanied by a "lost note"
affidavit and indemnity, a copy of the Mortgage
Note, executed by the related Mortgagor and
endorsed by the applicable Mortgage Loan Seller
or the prior holder of record, in blank or to
the order of "Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee for X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp. Mortgage Pass-Through
Certificates Series 2001-CIBC2" and showing a
complete chain of endorsements from the
originator;
(ii) the original Mortgage, and any intervening
assignments (or certified copies of such
assignments) thereof, in each case with evidence
of recording indicated thereon, or certified
copies thereof if not returned from the
applicable recording office;
(iii) originals or certified copies of any related
Assignment of Leases and Rents and any related
Security Agreement (if, in either case, such
item is a document separate from the Mortgage),
any intervening assignments of each such
document or instrument, and any related UCC
Financing Statements;
49
(iv) an original assignment of the Mortgage, executed
by the related Mortgage Loan Seller or the prior
holder of record in blank or to the order of the
Trustee, with the assignment to the Trustee in
the following form: "Xxxxx Fargo Bank Minnesota,
N.A., as Trustee for X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp. Mortgage
Pass-Through Certificates Series 2001-CIBC2", in
complete and recordable form, including
recording information; provided, however, that
if the underlying Mortgage has not been returned
by the applicable recording jurisdiction,
recording information related thereto may be
provided by the related Mortgage Loan Seller
immediately upon receipt subsequent to the
Delivery Date; provided, further, that if the
related Mortgage Loan Seller is obligated to
forward the original assignment of Mortgage to
the applicable recording jurisdiction for
recording, such Mortgage Loan Seller may deliver
to the Trustee a certified copy of such
assignment of Mortgage;
(v) assignments in complete and recordable form of
any related Assignment of Leases and Rents and
any related Security Agreement (if, in either
case, such item is a document separate from the
Mortgage), executed by the related Mortgage Loan
Seller or the prior holder of record in blank or
to the order of the Trustee, with the assignment
to the Trustee in the following form: "Xxxxx
Fargo Bank Minnesota, N.A., as Trustee for X.X.
Xxxxxx Chase Commercial Mortgage Securities
Corp. Mortgage Pass-Through Certificates Series
2001-CIBC2", in complete and recordable form,
including recording information; provided,
however, that if the underlying Assignment of
Leases and Rents or Security Agreement, as
applicable, has not been returned by the
applicable recording jurisdiction, recording
information related thereto may be provided by
the related Mortgage Loan Seller immediately
upon receipt subsequent to the Delivery Date;
provided, further, that if the related Mortgage
Loan Seller is obligated to forward the original
assignment of Assignment of Leases and Rents or
Security Agreement, as applicable, to the
applicable recording jurisdiction for recording,
such Mortgage Loan Seller may deliver to the
Trustee a certified copy of such assignment of
Assignment of Leases and Rents or Security
Agreement, as applicable;
(vi) originals or certified copies of all assumption,
modification and substitution agreements in
those instances where the terms or provisions of
the Mortgage or Mortgage
50
Note have been modified or the Mortgage or
Mortgage Note has been assumed with evidence of
recording;
(vii) the original lender's title insurance policy
issued in connection with the origination of
such Mortgage Loan or, with respect to each
Mortgage Loan not covered by a lender's title
insurance policy, an attorney's opinion of title
given by an attorney licensed to practice law in
the jurisdiction where the related Mortgaged
Property is located;
(viii) with respect to any Mortgage Loan secured by a
leasehold interest, a certified copy of the
related ground lease and any amendments and
modifications thereto and ground lease estoppel;
(ix) with respect to any Mortgage Loan secured by a
leasehold interest, either (i) the originals of
all intervening assignments of the leasehold
interest, with evidence of recording thereon,
(ii) copies of such assignments certified by a
title company or escrow company to be true and
complete copies thereof where the originals have
been transmitted for recording until such time
as the originals are returned by the public
recording office or (iii) copies of such
assignments certified by the public recording
offices where such assignments were recorded to
be true and complete copies thereof in those
instances where the public recording offices
retain the original or where the original
recorded assignments are lost;
(x) either (i) originals or copies of the UCC
Financing Statements and any related
continuation statements, each showing the
Mortgagor as debtor and the originator as
secured party and each with evidence of filing
thereon, together with a copy of each
intervening UCC-2 or UCC-3 financing statement
showing a complete chain of assignment from the
secured party named in such UCC Financing
Statement to the Trustee with evidence of filing
thereon disclosing the assignment to the Trustee
of the security interest in the personal
property securing the Mortgage Loan or (ii)
copies of such financing statements certified to
be true and complete copies thereof in instances
where the original financing statements have
been sent to the appropriate public filing
office for filing;
(xi) any original appraisal;
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(xii) any escrow, guarantee, insurance policy,
environmental liability agreement, environmental
insurance policy, intercreditor agreement,
management agreement, or lockbox arrangement, in
each case if any such document exists;
(xiii) the original standby letter of credit, if any,
together with any original assignment thereof;
(xiv) any original Phase I or other environmental
assessment;
(xv) the original franchise agreement (or, if the
original has been retained by the related
Mortgagor, a copy certified by such Mortgagor to
be true and correct) and franchisor comfort
letter(s), if any;
(xvi) any collateral assignments of property
management agreements and other servicing
agreements; and
(xvii) a list related to such Mortgage Loan indicating
the related Mortgage Loan Documents included in
the related Mortgage Loan File.
If the related Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original of the related lender's title
insurance policy referred to in clause (vii) above solely because such policy
has not yet been issued, the delivery requirements of this Section 2.01(b)
shall be deemed to be satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
that the related Mortgage Loan Seller shall have delivered to the Trustee or a
Custodian appointed thereby, on or before the Delivery Date, a commitment for
title insurance "marked-up" at the closing of such Mortgage Loan marked as
binding and executed by the title insurer or its agent (or a "marked-up"
report of title together with the corresponding escrow or similar agreement,
accepted and executed by the title insurer or its agent at the closing of such
Mortgage Loan) and the related Mortgage Loan Seller shall deliver to the
Trustee or such Custodian, promptly following the receipt thereof, the
original related lender's title insurance policy (or a copy thereof).
(c) The Depositor, or, if directed by the Depositor, the related
Mortgage Loan Seller, shall, as to each Mortgage Loan on the Mortgage Loan
Schedule, promptly (and in any event within 45 Business Days of the Delivery
Date) cause (i) the assignment of the Mortgage and the Assignment of Leases
and Rents specified in clauses (iv) and (v) respectively, above to be
submitted for recording or filing, at the expense of the related Mortgage Loan
Seller, in the appropriate public office for real property records; and (ii)
the UCC-2 or UCC-3 Assignments of Financing Statements specified in clause (x)
above to be submitted for recording or filing, at the expense of the related
Mortgage Loan Seller, in the appropriate public office for UCC assignments.
Any such assignment delivered in blank shall be completed to the order of the
52
Trustee, in the following form: "Xxxxx Fargo Bank Minnesota, N.A., as Trustee
for X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. Mortgage
Pass-Through Certificates Series 2001-CIBC2" prior to recording. Each such
assignment shall reflect that it should be returned by the public recording
office following recording to Xxxxx Fargo Bank Minnesota, N.A. as the initial
Custodian. If any such assignment is lost or returned unrecorded or unfiled
because of a defect therein, the Depositor shall promptly (but in no event
later than ten (10) Business Days of notice thereof) prepare or cause to be
prepared a substitute therefor or cure such defect, as the case may be, and
thereafter cause the same to be duly recorded or filed.
(d) The Depositor shall complete the endorsements on those Mortgage
Notes delivered in blank (or cause such to be completed) to the order of the
Trustee.
(e) In connection with the Depositor's assignment, the Depositor
does hereby deliver to, and deposit with the Master Servicer originals or
copies of the fully executed Mortgage Loan Purchase Agreements.
(f) In connection with the Depositor's assignment, the Depositor
does hereby deliver to the Master Servicer copies of the Mortgage Loan Files.
(g) The Trustee hereby acknowledges the receipt by it of the Initial
Monthly Payment Fund. The Trustee shall hold such Initial Monthly Payment Fund
in the Certificate Account and shall include such Initial Monthly Payment Fund
in the Available Distribution Amount for the initial Distribution Date.
Notwithstanding anything herein to the contrary, the Initial Monthly Payment
Fund shall not be an asset of any REMIC. To the extent that the Initial
Monthly Payment Fund constitutes a reserve fund for federal income tax
purposes, (1) it shall be an outside reserve fund and not an asset of any
REMIC, (2) it shall be owned jointly by MGT and CIBC and (3) amounts
transferred by any REMIC to the Initial Monthly Payment Fund shall be treated
as transferred to MGT and CIBC or any of their respective successors, all
within the meaning of Section 1.860G-2(h) of the Treasury Regulations.
Section 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt, subject to the provisions of Section 2.01, the further
review provided for in the provisions of this Section 2.02 and any exceptions
noted on a schedule of exceptions provided to the Depositor on or prior to the
Delivery Date, of the documents specified in clause (i) of Section 2.01(b),
and declares that it or the Custodian on its behalf holds and will hold such
documents and the other documents delivered to it or the Custodian
constituting the Mortgage Loan Files, and that it holds or will hold such
other assets included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders.
(b) On or prior to the date which is 60 days following the Delivery
Date, the Trustee shall deliver to the Depositor, the Directing
Certificateholder, the Master Servicer and the Special Servicer, or shall
cause the Custodian to deliver to the Depositor, the Directing
Certificateholder, the Trustee, and the Special Servicer and the Master
Servicer, an initial certification in a form acceptable to the Depositor (the
"Initial Certification") and thereafter, until delivery of the Final
Certification, quarterly updates (which updates the Trustee shall also make
53
available on its Website at xxx.xxxxxxx.xxx/xxxx) for such Initial
Certification to the effect that it has reviewed the documents specified in
clauses (i), (ii), (iii), (iv), (v), (vii), (viii) and (x) of Section 2.01(b)
and has determined (i) that all documents required to be delivered pursuant to
such clauses of Section 2.01(b) have been received by the Trustee, subject to
any exceptions identified in an exception report delivered with the Initial
Certification and each quarterly certification, and (ii) that all documents so
delivered appear regular on their face, appear to be executed and appear to
relate to the related Mortgage Loan.
Promptly following the first anniversary of the Delivery Date, the
Trustee shall deliver, or cause the Custodian to deliver, a final report as to
any remaining document deficiencies (the "Final Certification"), whereupon,
within 90 days, the Depositor shall either: (i) cause such document deficiency
to be cured; (ii) cause to be delivered to the Trustee an Opinion of Counsel
to the effect that such document deficiency is not material; or (iii)
repurchase (or cause the related Mortgage Loan Seller to repurchase) the
related Mortgage Loan pursuant to Section 2.04. In performing the reviews
called for herein, the Trustee and Custodian, acting on its behalf, may
conclusively assume the due execution and genuineness of any such document and
the genuineness of any signature thereon. It is understood that the scope of
the review called for is limited solely to confirming, after receipt of the
documents listed in Section 2.01, that such documents appear regular on their
face, have been executed, received and recorded, if applicable, and relate to
the Mortgage Loans identified in the Mortgage Loan Schedule. Neither the
Trustee nor any Custodian makes any representation as to (i) the validity,
legality, sufficiency, enforceability or genuineness of any such documents
contained in each Mortgage Loan File or any of the Mortgage Loans identified
in the Mortgage Loan Schedule or the collectibility, insurability,
effectiveness or suitability of any such Mortgage Loan, (ii) whether any
document required to be reviewed by it is in the related Mortgage Loan File,
unless such document is identified in the list relating to such Mortgage Loan
File delivered pursuant to Section 2.01(b) (xvii), or (iii) whether more than
one county or state financing statement is required to be filed for any given
Mortgage Loan.
(c) If, in the process of reviewing the Mortgage Loan Files, the
Trustee or the Custodian or any party hereto (or any other Person) finds any
document or documents constituting a part of a Mortgage Loan File not to have
been properly executed, or to be missing or failing to materially conform to
the information provided on the Mortgage Loan Schedule or to be defective on
its face in any material respect, the Trustee or any such party shall promptly
so notify the Master Servicer, and the Master Servicer shall thereafter notify
the Trustee (if the Trustee was not the notifying party), the Special
Servicer, the Directing Certificateholder and the Depositor. If the Depositor
does not correct or cure such omission or defect within 90 days from the date
of such notice the Depositor shall repurchase (or cause the related Mortgage
Loan Seller to repurchase) such Mortgage Loan from the Trust Fund at its
Purchase Price within 90 days from the date of such notice. The Purchase Price
for any such Mortgage Loan shall be deposited or caused to be deposited by the
Master Servicer into the Collection Account and, upon receipt by the Trustee
of written notification of such deposit, signed by a Servicing Officer, the
Trustee or the Custodian, as the case may be, shall release to the Depositor
the related Mortgage Loan File and such Mortgage Loan and the Trustee shall
execute and deliver such instruments of transfer or assignment prepared by the
Master Servicer (at the expense of the Depositor or the related Mortgage Loan
Seller), in each case without recourse, as shall be necessary to vest in the
Depositor or its designee, as the case may be, any Mortgage Loan released
pursuant hereto and
54
thereafter such Mortgage Loan shall not be part of the Trust Fund and not
subject to the servicing terms hereof. It is understood and agreed that the
obligation of the Depositor to so cure or purchase any Mortgage Loan as to
which a material defect in or omission of a constituent document exists shall
constitute the sole remedy under this Agreement respecting such defect or
omission available to Certificateholders or the Trustee on behalf of the
Certificateholders; provided, however, that no limitation of remedy is implied
with respect to the Depositor's breach of its obligation to cure or repurchase
in accordance with the terms and conditions of this Agreement.
(d) The Depositor shall repurchase (or cause the related Mortgage
Loan Seller to repurchase) any Cross Collateralized Loan that is
cross-collateralized with any Mortgage Loan repurchased pursuant to this
Section 2.02. Notwithstanding the foregoing, the Depositor may repurchase (or
cause the related Mortgage Loan Seller to repurchase) only that Mortgage Loan
required to be repurchased pursuant to this Section 2.02, if (x) the related
Mortgage Loan Documents permit, or are amended or modified to permit, the
Mortgaged Property related to the Mortgage Loan to be repurchased pursuant to
this Section 2.02 to be released from the security of the
crossed-collateralized Mortgage Loan(s), and (y) such Mortgaged Property is
released from the security of such cross-collateralized Mortgage Loan(s);
provided, however, that (i) the remaining Mortgage Loan(s) fully comply with
the terms and conditions of the related Mortgage Loan Documents, this
Agreement and the related Mortgage Loan Purchase Agreement, (ii) in connection
with such release, the related Mortgage Loan Seller obtains an Opinion of
Counsel (at such Mortgage Loan Seller's expense) to the effect that the
contemplated action will not, with respect to either REMIC I, REMIC II or
REMIC III created hereunder, endanger such status or, unless such party
determines in its sole discretion to indemnify the Trust Fund against any
resultant tax, result in the imposition of any tax and (iii) in connection
with such release, the related Mortgage Loan Seller delivers or causes to be
delivered to the Custodian (at such Mortgage Loan Seller's expense) original
modifications to the Mortgage Loan Documents prepared and executed in
connection with such release.
Section 2.03 Representations and Warranties of the Depositor, the
Master Servicer and the Special Servicer; Assignment of Rights.
(a) The Depositor hereby represents and warrants to and covenants
with the Trustee, the Master Servicer and the Special Servicer, as of the
Delivery Date, 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 execution and delivery of this Agreement by
the Depositor, and the performance and
compliance with the terms of this Agreement by
the Depositor, will not violate the Depositor's
charter or bylaws or constitute a default (or an
event which, with notice or lapse of time, or
both, would constitute a default) under, or
result in the breach of, any material agreement
or other instrument to
55
which it is a party or which is applicable to
it or any of its assets.
(iii) The Depositor has the full power and authority
to enter into and consummate all transactions
contemplated by this Agreement, the execution,
delivery and performance of this Agreement by
the Depositor has been duly authorized, and the
Depositor has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by the Trustee, the
Master Servicer and the Special Servicer,
constitutes a valid, legal and binding
obligation of the Depositor, enforceable against
the Depositor in accordance with the terms
hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors'
rights generally, and (B) general principles of
equity, regardless of whether such enforcement
is considered in a proceeding in equity or at
law.
(v) The Depositor is not in violation of, and its
execution and delivery of this Agreement and its
performance and compliance with the terms of
this Agreement will not constitute a violation
of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of
any federal, state or local governmental or
regulatory authority, or any of the provisions
of any indenture, mortgage, contract,
instrument, or other document to which such
Depositor is a party or by which it is bound, or
result in the creation or imposition of any
lien, charge, or encumbrance upon any of its
property pursuant to the terms of any such
indenture, mortgage, contract, instrument, or
other document which violation, in the
Depositor's good faith and reasonable judgment,
is likely to affect materially and adversely
either the ability of the Depositor to perform
its obligations under this Agreement or the
financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the
Trustee as contemplated herein requires no
regulatory approval, other than any such
approvals as have been obtained, and is not
subject to any bulk transfer or similar law in
effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the
Depositor
56
which, if determined adversely to the
Depositor, would prohibit the Depositor from
entering into this Agreement or, in the
Depositor's good faith reasonable judgment, is
likely to materially and adversely affect either
the ability of the Depositor to perform its
obligations under this Agreement or the
financial condition of the Depositor.
(viii) At the time of the assignment of the Mortgage
Loans to the Trust Fund hereunder, the Depositor
had good title to and was the sole owner of,
each Mortgage Loan, free and clear of any
pledge, lien, encumbrance or security interest
(other than the rights to servicing and related
compensation) and such assignment validly
transfers ownership of the Mortgage Loans to the
Trust Fund free and clear of any pledge, lien,
encumbrance or security interest.
(b) Each of the Master Servicer and the Special Servicer hereby
represents and warrants or covenants to the Trustee and the Depositor, as of
the Delivery Date, that:
(i) Due Organization and Authority.
-------------------------------
(A) such Servicer has or shall obtain all licenses
necessary to carry on its business as now being conducted and
is or will become licensed, qualified and in good standing in
each state or jurisdiction where a Mortgaged Property is
located, if the laws of such state or jurisdiction require
licensing or qualification in order to conduct business of the
type conducted by such Servicer and if such failure to be
licensed or qualified could have a material and adverse effect
on the ability of the Servicer to perform its obligations under
this Agreement or enforce the Mortgage Loan Documents; no
license, 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 such Servicer of or compliance by
such Servicer with this Agreement or the consummation of the
transactions of such Servicer contemplated by this Agreement,
or if such license, consent, approval, authorization or order
of or registration or filing with or notice to any court or
governmental agency or body is required, such Servicer has
obtained the same or will obtain the same prior to the time
necessary for such Servicer to perform its obligations under
this Agreement relative thereto; and in any event such Servicer
is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of the servicing of such
Mortgage Loan in accordance with the terms of this Agreement
and the failure to have any such license not yet obtained does
not and will not materially adversely affect
57
the rights of the Certificateholders hereunder or under the
Mortgage Loan Documents;
(B) such Servicer has the full power, authority and
legal right to execute and deliver this Agreement and to fully
perform its obligations in accordance herewith; the execution,
delivery and performance of this Agreement (including all
instruments to be delivered pursuant to this Agreement) by such
Servicer and the consummation of the transactions contemplated
hereby by such Servicer have been duly and validly authorized
and the Servicer has duly executed and delivered this
Agreement;
(C) this Agreement and all agreements contemplated
hereby to which such Servicer is or will be a party, assuming
the due authorization, execution and delivery by each of the
other parties thereto, evidence the valid, legal, binding and
enforceable obligations of such Servicer, regardless of whether
such enforcement is sought in a proceeding in equity or at law
subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting the rights and remedies
of creditors and to the effect of general principles of equity,
whether enforcement is considered in a proceeding in equity or
at law; and all requisite corporate action has been taken by
such Servicer to make this Agreement and all agreements
contemplated hereby to which such Servicer is or will be a
party valid and binding upon such Servicer in accordance with
their terms and conditions; and
(D) such Servicer is duly authorized, validly existing
and in good standing as a corporation under the laws of the
State of Delaware, in the case of the Master Servicer, and as a
national banking association under the laws of the United
States, in the case of the Special Servicer;
(ii) Ordinary Course of Business. The consummation of
the transactions contemplated by this Agreement
are in the ordinary course of business of such
Servicer;
(iii) Conflicts. Neither the execution and delivery of
this Agreement by such Servicer, the acquisition
of the servicing responsibilities by such
Servicer, nor the transactions of such Servicer
contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this
Agreement by such Servicer, will (a) conflict
with or result in a breach of any of the terms,
conditions or provisions of such Servicer's
charter or by-laws or any legal restriction or,
in any material respect, any agreement
58
or instrument to which such Servicer is now a
party or by which it is bound, or (b) constitute
a default (or an event which, with notice or
lapse of time, or both, would constitute a
default) or result in an acceleration under any
of the foregoing, or (c) result in the violation
of, and such Servicer is not in violation of,
any law, rule, regulation, order, judgment or
decree to which such Servicer or its property is
subject, or (d) result in the creation or
imposition of any lien, charge or encumbrance
upon any of its properties pursuant to the terms
of any mortgage, contract, deed of trust or
other instrument, or (e) impair the ability of
the Trustee to realize on the Mortgage Loans,
which, in the case of any of (a), (b), (c) or
(d), would have a material adverse effect upon
the financial condition of such Servicer or its
properties taken as a whole or upon the ability
of the Servicer to perform under the terms and
conditions of this Agreement;
(iv) Ability to Service. To the best of such
Servicer's knowledge no event has occurred
(including but not limited to, any change in
insurance coverage) which would make such
Servicer unable to comply with Accepted Master
Servicing Practices or Accepted Special
Servicing Practices, as applicable. Such
Servicer has the facilities, procedures, and
experienced personnel necessary for the prudent
servicing of multifamily and commercial mortgage
loans of the same type as the Mortgage Loans;
(v) Servicing Fee. Such Servicer agrees that the
Servicing Fee payable to it with respect to each
Mortgage Loan is reasonable compensation for its
services hereunder;
(vi) Ability to Perform. Such Servicer believes (and
there are no facts or circumstances known to the
Servicer contrary to such belief) that it can
perform each and every covenant made by it in
this Agreement;
(vii) Subservicing Agreements. Such Servicer covenants
that the terms of any subservicing agreement
entered into by such Servicer pursuant to
Section 3.13 shall be in all material respects
consistent with the terms of this Agreement; and
(viii) No Litigation. There is no action, suit
or proceeding pending or to the best of such
Servicer's knowledge, threatened against such
Servicer which, either in any one instance or in
the aggregate, may result in any
59
material adverse change in the business,
operations, financial condition, properties or
assets of such Servicer taken as a whole, or in
any material liability on the part of such
Servicer, or which would draw into question the
validity of this Agreement or the Mortgage Loans
or of any action taken or to be taken in
connection with the obligations of such Servicer
contemplated herein, or which would be likely to
impair materially the ability of such Servicer
to perform under the terms and conditions of
this Agreement.
(c) The Depositor, as assignee of the Mortgage Loan Sellers under
the Mortgage Loan Purchase Agreements, hereby assigns to the Trustee for the
benefit of the Certificateholders all of its rights, title and interest (but
none of its obligations) under the Mortgage Loan Purchase Agreements,
including the Depositor's right to require the Mortgage Loan Sellers to cure
any breach of a representation or warranty by a Mortgage Loan Seller with
respect to each Mortgage Loan it sold or repurchase such Mortgage Loan if such
breach materially and adversely affects the value of such Mortgage Loan or the
interests of the Trustee or any Certificateholder.
(d) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall (i) survive the execution and
delivery of this Agreement and (ii) not be diminished by any limitation in any
assignment, endorsement or allonge relating to any Mortgage Loan Document, and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by the
Depositor, the Master Servicer, the Special Servicer or the Trustee of any
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other parties,
the Directing Certificateholder and each Rating Agency.
Section 2.04 Repurchase of Mortgage Loans for Breaches of
Representation and Warranty.
(a) Within 90 days of the earlier of, the discovery by the Depositor
of, or receipt by the Depositor of written notice from the Master Servicer,
the Special Servicer, the Trustee or any Certificateholder, specifying in
reasonable detail the existence of a breach of any representation or warranty
of the Depositor set forth in Section 2.03(a), or of a Mortgage Loan Seller
under the related Mortgage Loan Purchase Agreement, assigned to the Trustee
pursuant to Section 2.03(c) for the benefit of the Certificateholders, which
materially and adversely affects the value of any Mortgage Loan, the related
Mortgaged Property or the interest of the Trustee or any Certificateholder in
the Trust, the Depositor shall at its option (i) (A) in all material respects
cure such breach or (B) purchase the affected Mortgage Loan from the Trust
Fund at the Purchase Price or (ii) cause the related Mortgage Loan Seller at
its option (A) in all material respects to cure such breach or (B) to purchase
the affected Mortgage Loan from the Trust Fund at the Purchase Price.
(b) The purchase of any Mortgage Loan by the Depositor or a Mortgage
Loan Seller pursuant to Section 2.04(a), shall be effected by delivering the
Purchase Price therefor to the Master Servicer for deposit in the Collection
Account. The Trustee, upon receipt of an
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Officers' Certificate from the Master Servicer to the effect that such deposit
has been made, shall release or cause to be released to the Depositor, the
related Mortgage Loan Seller or its designee, as applicable, the related
Mortgage Loan File and shall execute and deliver such instruments of transfer
or assignment as shall be provided to it (in recordable form if recording is
appropriate), in each case without recourse, as shall be necessary to vest in
the Depositor, the related Mortgage Loan Seller or its designee, as
applicable, any Mortgage Loan released pursuant hereto. In connection with
such repurchase, the Master Servicer, and the Special Servicer, as applicable,
shall release to the Depositor or the related Mortgage Loan Seller all
documents and records maintained by such Servicer and requested by the
Depositor or such Mortgage Loan Seller; provided, that such Servicer may
retain copies of such documents and records at its own expense. The Depositor
shall be responsible for the payment of all reasonable expenses of the Trustee
and the Servicers incurred in connection with such repurchase, including any
reasonable expenses expended to evidence, investigate or evaluate the
occurrence or existence of the breach causing such obligation to repurchase to
the extent not covered in the definition of Purchase Price.
(c) It is understood and agreed that the provisions set forth in
Section 2.04(a) of this Agreement shall constitute the sole remedies available
to the Certificateholders, or the Trustee on behalf of the Certificateholders
under this Agreement, respecting any breach of the representations and
warranties contained in Section 2.03(a) of this Agreement or in the Mortgage
Loan Purchase Agreements; provided, however, that no limitation of remedy is
implied with respect to the Depositor's breach of its obligation to cure or
repurchase in accordance with the terms and conditions of this Agreement.
(d) The Depositor shall repurchase (or cause the related Mortgage
Loan Seller to repurchase) any Cross Collateralized Loan that is
cross-collateralized with any Mortgage Loan repurchased pursuant to this
Section 2.04. Notwithstanding the foregoing, the Depositor may repurchase (or
cause the related Mortgage Loan Seller to repurchase) only that Mortgage Loan
required to be repurchased pursuant to this Section 2.04, if (x) the related
Mortgage Loan Documents permit, or are modified to permit, the Mortgaged
Property related to the Mortgage Loan to be repurchased pursuant to this
Section 2.04 to be released from the security of the cross-collateralized
Mortgage Loans(s), and (y) such Mortgaged Property is released from the
security of such cross-collateralized Mortgage Loan(s); provided, however,
that (i) the remaining Mortgage Loan(s) fully comply with the terms and
conditions of the related Mortgage Loan Documents, this Agreement and the
related Mortgage Loan Purchase Agreement, (ii) in connection with such
release, the related Mortgage Loan Seller obtains an Opinion of Counsel (at
such Mortgage Loan Seller's expense) to the effect that the contemplated
action will not, with respect to either REMIC I, REMIC II or REMIC III created
hereunder, endanger such status or, unless such party determines in its sole
discretion to indemnify the Trust Fund against any resultant tax, result in
the imposition of any tax and (iii) in connection with such release, the
related Mortgage Loan Seller delivers or causes to be delivered (at the
related Mortgage Loan Seller's expense) to the Custodian original
modifications to the Mortgage Loan Documents prepared and executed in
connection with such release.
(e) Without limiting the Trustee's duties under this Section 2.04
the Trustee hereby irrevocably designates the Master Servicer (in the case of
the Mortgage Loans that are not Specially Serviced Mortgage Loans) and the
Special Servicer (in the case of Specially Serviced
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Mortgage Loans), for the benefit of Certificateholders to enforce (at their
respective options after notifying the Trustee) any of the obligations of each
Mortgage Loan Seller under Section 6 of the related Mortgage Loan Purchase
Agreement. Such enforcement including, without limitation, the legal
prosecution of claims, shall be carried out in such form, to such extent and
at such time as the Master Servicer or the Special Servicer, as the case may
be, shall determine are in the best interests of the Certificateholders (taken
as a collective whole). All out-of-pocket expenses incurred by the Master
Servicer and the Special Servicer in carrying out their respective obligations
pursuant to this Section 2.04(e) shall constitute Additional Trust Fund
Expenses with respect to the related Mortgage Loan and shall constitute part
of the Purchase Price therefor. To the extent such Additional Trust Fund
Expenses cannot be collected from the related Mortgage Loan Seller, the same
shall be a Servicing Advance.
Section 2.05 Execution of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the Mortgage Loan Purchase Agreements to the extent set forth herein and,
concurrently with such assignment, has, at the direction of the Depositor,
executed and caused the Certificate Registrar to authenticate and deliver to
or upon the order of the Depositor, in exchange for the Mortgage Loans,
Certificates in authorized denominations evidencing beneficial ownership of
the entire Trust Fund.
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ARTICLE III
GENERAL SERVICING AND ADMINISTRATION
Section 3.01 Access to Certain Documentation Regarding the Mortgage
Loans and This Agreement.
Upon reasonable advance written notice (which may be delivered in
electronic format), each Servicer shall give the Trustee, the other Servicer,
the Rating Agencies, the Depositor, the Directing Certificateholder and such
Person's agents or representatives, during normal business hours at such
Servicer's offices, without charge, reasonable access to all reports,
information and documentation relating to any Mortgage Loan, REO Property,
this Agreement, and the rights and obligations of the Certificateholders and
any of the Servicers hereunder (including the right to make copies or extracts
therefrom at their expense, except as to the Rating Agencies) and access to
officers of such Servicer responsible for such obligations; provided, however,
that each Servicer shall have no obligation to disclose or provide access to
any computer programs or procedures manuals which are proprietary to such
Servicer or access to which is limited by licensing agreements. In addition,
with respect to this or any other provision of this Agreement which requires a
Servicer to transmit documents, information or reports to any Person, the
Servicer shall be entitled to include in its transmittal letter or other data
transmission format a statement that the enclosed information should not be
disseminated or otherwise used in any manner contrary to any federal or state
laws.
Section 3.02 Annual Statement As to Compliance.
Each Servicer shall deliver to the Depositor and the Trustee, on or
before April 30 of each year, beginning after the first anniversary of the
Delivery Date, a statement, signed by a Servicing Officer thereof, stating
that (a) a review of the activities of such Servicer during the preceding
calendar year (or during the period from the date of commencement of its
duties hereunder until the end of such preceding calendar year in the case of
the first such certificate) and of its performance under this Agreement has
been made under such Servicing Officer's supervision; and (b) to the best of
such Servicing Officer's knowledge, based on such review, such Servicer has
fulfilled all of its material obligations under this Agreement throughout such
period, or if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such Servicing Officer and
the nature and status thereof.
Section 3.03 Annual Independent Public Accountants' Servicing
Report.
On or before April 30 of each year, beginning after the first
anniversary of the Delivery Date, each Servicer, at its expense, shall cause a
firm of independent public accountants that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the
Depositor and the Trustee to the effect that such firm has examined such
documents and records as it has deemed necessary and appropriate relating to
the servicing of the Mortgage Loans under this Agreement or substantially
similar agreements for the preceding calendar year (or during the period from
the date of commencement of such servicer's duties hereunder until the end of
such preceding calendar year in the case of the first such certificate) and
that the assertion of the management of such Servicer that it maintained an
effective internal control
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system over servicing of mortgage loans is fairly stated in all material
respects, based upon the Uniform Single Attestation Program for Mortgage
Bankers, and meets the standards applicable to accountants' reports intended
for general distribution.
Section 3.04 Merger or Consolidation of Any Servicer.
(a) Each Servicer shall keep in full force and effect its existence,
rights and franchises as a limited liability company, a limited partnership,
an association or corporation under the laws of the state of its organization
except as permitted in this Section 3.04 and shall obtain and preserve its
qualification to do business in each jurisdiction in which such qualification
is or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under this
Agreement.
(b) Any Person into which a Servicer may be merged, converted, or
consolidated, or any Person resulting from any merger, conversion or
consolidation to which a Servicer shall be a party, or any Person succeeding
to all or substantially all of the business of a Servicer, shall be the
successor of such Servicer hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that the successor
or surviving Person shall be an entity whose business includes the servicing
of commercial mortgage loans, shall service multifamily and/or commercial
mortgage loans, as applicable, in accordance with Accepted Master Servicing
Practices or Accepted Special Servicing Practices, as applicable, and shall
satisfy the requirements of Section 3.10(d) hereof with respect to the
qualifications of a successor to a Servicer.
Section 3.05 Limitation on Liability of the Servicers and Others.
Neither the Servicers nor any of the members, managers, directors,
officers, employees or agents thereof nor any general partner thereof shall be
under any liability for any action taken or for refraining from taking any
action in accordance with Accepted Master Servicing Practices or Accepted
Special Servicing Practices, as applicable, in good faith pursuant to this
Agreement or for errors in judgment (not constituting negligence or willful
misconduct); provided, however, that this provision shall not protect any
Servicer or agents of such Servicer against any liability resulting from any
breach of any representation or warranty made herein, or from any liability
specifically imposed on such Servicer herein; and provided, further, that this
provision shall not protect any Servicer or agents of such Servicer against
any liability that would otherwise be imposed by reason of the willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of negligent disregard of the obligations or duties hereunder. Each Servicer
and any member, manager, director, officer, employee or agent thereof may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any other Servicer, the Depositor, the Trustee or the Custodian
respecting any matters arising hereunder. No Servicer shall be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement; provided, however, that any Servicer may undertake any such action
that it may deem necessary or desirable in respect to this Agreement and any
Mortgage Loan and the rights and duties of the parties hereto or the interest
of the Certificateholders. In such event, the reasonable legal expenses and
costs of such action and any liability resulting therefrom shall be
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expenses, costs and liabilities of the Trust Fund, and such Servicer shall be
entitled to be reimbursed therefor from the Trust Fund upon written demand.
Section 3.06 Resignation of Servicers.
Except as set forth in this Section 3.06, neither the Master
Servicer nor the Special Servicer shall resign as such or delegate (except
that this provision shall not preclude the hiring by a Servicer of a third
party to perform property inspections, without diminution of the obligation or
liability of the related Servicer under this Agreement) its rights or duties
hereunder or any portion thereof except upon the determination that its duties
hereunder are no longer permissible under applicable law and such incapacity
cannot be cured by such Servicer. Any determination pursuant to the
immediately preceding sentence permitting the resignation of a Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
Notwithstanding the foregoing, either Servicer may resign subject to the
requirements set forth below in this Section 3.06; provided that no such
resignation shall become effective until a successor shall have assumed such
Servicer's responsibilities and obligations hereunder in the manner provided
in Section 3.10 hereof. Any such successor Servicer must be an established
mortgage loan servicing institution which meets the eligibility requirements
for a successor Servicer pursuant to Section 3.10. All costs associated with
such resignation shall be borne by the resigning Servicer and shall not be an
expense of the Trust Fund.
Section 3.07 Maintenance of Errors and Omissions and Fidelity Coverage.
(a) Each Servicer shall obtain and maintain at its own expense, and keep in
full force and effect throughout the term of this Agreement, a blanket
fidelity bond and an errors and omissions insurance policy issued by a
Qualified Insurer covering such Servicer's officers and employees in
connection with its activities under this Agreement. The Trustee shall be
designated as a loss payee under such policy. The amount of coverage shall be
determined in accordance with Accepted Master Servicing Practices and Accepted
Special Servicing Practices and be at least equal to the sum of the following
based upon the total portfolio that such Servicer services for itself and all
others:
(i) $300,000, plus;
(ii) 0.150% of the excess of the unpaid principal
balance of all the mortgage loans serviced by
such Servicer over $100,000,000 but less than or
equal to $500,000,000, plus;
(iii) 0.125% of the excess of the unpaid principal
balance of all the mortgage loans serviced by
such Servicer over $500,000,000 but less than or
equal to $1,000,000,000 plus;
(iv) 0.100% of the excess of the unpaid principal
balance of all the mortgage loans serviced by
such Servicer over $1,000,000,000.
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The deductible on the fidelity bond or errors and omissions policy shall not
exceed the greater of $100,000 and five (5) percent of the face amount of such
bond or policy. In the event that any such bond or policy ceases to be in
effect, such Servicer shall immediately obtain a comparable replacement bond
or policy. Notwithstanding the foregoing, so long as the long term unsecured
debt obligations of such Servicer have the Required Rating for long term
investments on Eligible Accounts, such Servicer shall be entitled to provide
self-insurance or obtain from its parent adequate insurance, as applicable,
with respect to its obligation to maintain a blanket fidelity bond or an
errors and omissions insurance policy.
(b) From time to time, upon the request of the Trustee, each
Servicer shall furnish the Trustee copies of all binders or certificates
evidencing that the bond and policy described in clause (a) above are in full
force and effect. Each Servicer shall promptly report in writing to the
Trustee and each other Servicer any change in such coverage resulting in a
failure to satisfy the requirements of clause (a) above and all cases of
embezzlement or fraud or irregularities of operation if such events involve
such Servicer and funds relating to the Mortgage Loans. The total losses,
regardless of whether claims are filed with the applicable insurer or surety,
shall be disclosed in such reports together with the amount of such losses
covered by insurance. If a bond or insurance claim report is filed with any of
such Servicer's bonding companies or insurers, a copy of such report (which
report may omit any references to individuals suspected of embezzlement, fraud
or irregularities of operation) shall be promptly furnished to the Trustee and
each other Servicer.
Section 3.08 Indemnity.
(a) Each Servicer shall indemnify the Depositor, the other Servicer
(and each of their respective directors, members, managers, officers,
employees and agents) and the Trust Fund against any and all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel and expenses of litigation, arising from claims or actions
that were caused by or resulted from a breach of any of such Servicer's
representations and warranties contained in this Agreement, the failure of
such Servicer to perform its duties and to service the Mortgage Loans in
accordance with the terms of this Agreement or actions taken by such Servicer
pursuant to a power of attorney granted in accordance with Section 4.01(b) or
arising out of the Servicer's willful misfeasance, bad faith or negligence in
the performance of its duties hereunder.
(b) Each Servicer and its respective officers, directors, members,
managers, employees, general partner and agents shall be entitled to
indemnification from the Trust Fund for any and all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and expenses of
counsel and expenses of litigation, incurred in connection with any claim or
legal action relating to any Mortgage Loan, any asset of the Trust Fund or
this Agreement, other than any cost, expense, loss, damage, claim or liability
incurred by reason of willful misfeasance, bad faith or negligence of such
Servicer in the performance of its duties hereunder or by reason of negligent
disregard of obligations or duties of such Servicer hereunder.
(c) As soon as reasonably practicable after receipt by the Depositor
or any Servicer of a notice of any complaint or the commencement of any action
or proceeding with respect to which indemnification is being sought under
clause (a) or (b) above (each, an
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"Indemnified Party"), such Indemnified Party shall notify each Servicer from
which indemnification is sought pursuant to clause (a) above and the Trustee
if indemnification is sought from the Trust Fund (each of the Servicers and
the Trust Fund, an "Indemnifying Party") in writing of such complaint or of
the commencement of such action or proceeding, but failure so to notify the
Indemnifying Party shall not relieve the Indemnifying Party from any liability
which the Indemnifying Party may have hereunder or otherwise, except to the
extent that such failure materially prejudices the rights of the Indemnifying
Party. If the Indemnifying Party so elects or is requested by such Indemnified
Party, the Indemnifying Party shall assume the defense of such action or
proceeding, including the employment of counsel reasonably satisfactory to
each Indemnified Party and the payment of reasonable fees and disbursements of
such counsel. In the event, however, such Indemnified Party reasonably
determines in its judgment that having common counsel would present such
counsel with a conflict of interest or that having common counsel would in any
other way disadvantage such Indemnified Party or if the Indemnifying Party
fails to assume the defense of the action or proceeding in a timely manner,
then such Indemnified Party may employ separate counsel to represent or defend
it in any such action or proceeding and the Indemnifying Party shall pay
reasonable fees and disbursements of such counsel; provided, however, that the
Indemnifying Party shall not be required to pay the fees and disbursements of
more than one separate counsel for all Indemnified Parties in any jurisdiction
in any single action or proceeding. In any action or proceeding the defense of
which the Indemnifying Party assumes and in which an Indemnified Party is not
entitled to separate counsel pursuant to the immediately preceding sentence,
such Indemnified Party shall have the right to participate in such litigation
and to retain its own counsel at such Indemnified Party's expense. The
Indemnifying Party shall not, without the prior consent of each Indemnified
Party, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Indemnified Party
is an actual or potential party to such claim, action, suit or proceeding)
unless such settlement, compromise or consent includes an unconditional
release of each Indemnified Party from all liability arising out of such
claim, action, suit or proceeding.
Section 3.09 Information Systems.
Each Servicer shall maintain a data storage and retrieval system
capable of maintaining, updating and providing reports with respect to all
relevant information with respect to each Mortgage Loan that may be required
to satisfy the terms of this Agreement, including but not limited to all
information on the Mortgage Loan Schedule. Each Servicer shall update the data
on such system to reflect any information available thereto from time to time.
Section 3.10 Successor to a Servicer.
(a) Within thirty (30) days or another period agreed to by the
Trustee in writing (not to exceed 60 days) after the termination of any
Servicer's responsibilities and duties pursuant to the first two sentences of
Section 3.06 or pursuant to Section 10.01 hereof, the Trustee shall either (i)
succeed (as of the date of such succession) to and assume all of such
Servicer's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor reasonably acceptable to the Directing
Certificateholder, that shall succeed (as of the date of such succession) to
all rights and assume all of the responsibilities and duties of such
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Servicer under this Agreement. In connection with such appointment and
assumption, the Trustee shall be entitled to all the same compensation as to
which such Servicer may be entitled hereunder (other than the Transferable
Servicing Interest as set forth in Section 4.12), and may make such
arrangements for the compensation of such successor therefrom as it and such
successor shall agree; provided, however, that the fees of the successor
Servicer with respect to the Mortgage Loans shall not be higher than the fees
of the predecessor Servicer. In the event that any Servicer's duties and
responsibilities under this Agreement are terminated pursuant to the
aforementioned Sections, such Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof (if such dates are not the same)
with the same degree of diligence and prudence that it is obligated to
exercise under this Agreement, and shall take no action whatsoever that might
impair or prejudice the rights or financial condition of its successor, any
other Servicer or the Trustee. The termination of a Servicer's
responsibilities and duties under this Agreement pursuant to the
aforementioned Sections (or portions thereof) shall not become effective until
a successor shall be appointed pursuant to this Section 3.10 (or until the
Trustee succeeds to and assumes all of such Servicer's responsibilities under
this Agreement) and shall in no event relieve such Servicer of the covenants,
representations and warranties made herein prior to the effectiveness of such
termination and the remedies available to the Trustee under this Agreement.
The provisions of Sections 3.05 and 3.08 hereof shall be applicable to each
Servicer, to the extent of claims against the Servicer arising out of the
Servicer's actions or failure to act prior to termination, notwithstanding any
termination of such Servicer's responsibilities and duties under this
Agreement or the termination of this Agreement. A successor Servicer shall
not, by reason of its appointment or assumption of the duties and
responsibilities of another Servicer, assume any of the liabilities of such
Servicer. All costs incurred in connection with the termination of a Servicer
shall be paid by the predecessor Servicer upon presentation of reasonable
documentation of such costs. If such predecessor Servicer defaults in its
obligation to pay such costs, such costs shall be paid by the successor
Servicer (in which case, the successor Servicer shall be entitled to
reimbursement therefor from the assets of the Trust Fund). The predecessor
Servicer shall remain liable to the Trust Fund for such costs.
(b) Any successor appointed as provided herein shall execute,
acknowledge and deliver to each Servicer and the Trustee, an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities and obligations of the
Servicer it is succeeding, with like effect as if originally named as a party
to this Agreement. Any resignation or termination of a Servicer pursuant to
Section 3.06, Section 6.16, Section 10.01 or Section 12.01 hereof shall not
affect any rights or claims that the Trustee or any Servicer may have against
the Trust Fund, Trustee or another Servicer, in any case arising prior to any
such termination or resignation.
(c) Upon its termination or resignation, the terminated or resigning
Servicer shall immediately deliver to the successor the funds in any account
maintained by such Servicer pursuant to this Agreement (net of all unpaid
Servicing Fees and any additional compensation payable to it pursuant to this
Agreement, unreimbursed Advances advanced by it and interest on such Advances
at the Advance Rate), any Mortgage Loan Documents in such Servicer's
possession and related documents and statements held by it hereunder and such
Servicer shall account for all funds. Such Servicer shall execute and deliver
such instruments and do all such
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other things as may reasonably be required to more fully and definitely vest
and confirm in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of such Servicer. The successor
shall promptly make arrangements to reimburse such Servicer for amounts such
Servicer actually expended, unreimbursed Advances and amounts owed to such
Servicer in respect of unpaid Servicing Fees and any additional compensation
pursuant to this Agreement that would otherwise have been recovered by such
Servicer pursuant to this Agreement but for the appointment of the successor
servicer, net of any amounts owed by such Servicer hereunder.
(d) Notwithstanding anything contained herein, a successor Servicer
shall be an established housing and home finance institution or mortgage
servicing institution (x) which has a net worth of not less than $15,000,000
and (y) as to which each Rating Agency has given written confirmation stating
that if the designated replacement (including the Trustee) were to serve as
successor Servicer, none of the then-current rating or ratings of all
outstanding classes of the Certificates would be qualified (if applicable),
downgraded or withdrawn as a result thereof.
Section 3.11 REMIC Administration and Other Tax Matters.
(a) The Trustee shall make an election to treat each of REMIC I,
REMIC II and REMIC III as a REMIC under the Code and if necessary, under State
Tax Laws. Each such election will be made on Form 1066 or other appropriate
federal tax or information return (including Form 8811) or any appropriate
state return for the taxable year ending on the last day of the calendar year
in which the Certificates are issued. For the purposes of the REMIC I election
in respect of the Trust Fund, the REMIC I Uncertificated Interests shall be
designated as the "regular interests" and the Class R-I Certificates shall be
designated as the sole class of "residual interest" in REMIC I. For the
purposes of the REMIC II election in respect of the Trust Fund, the REMIC II
Uncertificated Interests shall be designated as the "regular interests" and
the Class R-II Certificates shall be designated as the sole class of "residual
interest" in REMIC II. For the purposes of the REMIC III election in respect
of the Trust Fund, the Class A1, Class A2, Class A3, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and
Class NR Certificates and the Class X Components shall be designated as the
"regular interests" and the Class R-III Certificates shall be designated as
the sole class of "residual interest" in REMIC III. To the extent the affairs
of the Trust Fund are within their control, the Master Servicer and the
Trustee shall not permit the creation of any "interests" (within the meaning
of Section 860G of the Code) in REMIC I, REMIC II or REMIC III other than the
REMIC I Uncertificated Interests, the REMIC II Uncertificated Interests and
the Certificates.
(b) The Delivery Date is hereby designated as the "Startup Day" of
the REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Holder of the Class R-I Certificate is hereby designated,
and by the acceptance of the Class R-I Certificate agrees to act, as Tax
Matters Person for REMIC I. The Holder of the Class R-II Certificate is hereby
designated, and by the acceptance of the Class R-II Certificate agrees to act,
as Tax Matters Person for REMIC II. The Holder of the R-III Certificate is
hereby designated, and by acceptance of the Class R-III Certificate, agrees to
act, as Tax Matters Person for REMIC III.
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(d) Each Tax Matters Person hereby irrevocably authorizes the
Trustee to be its attorney-in-fact for purposes of signing all Tax Returns.
This grant of power of attorney is coupled with an interest and is therefore
properly irrevocable.
(e) The Trustee shall prepare or cause to be prepared all of the Tax
Returns that it reasonably determines are required with respect to REMIC I,
REMIC II or REMIC III created hereunder and shall sign and file such Tax
Returns in a timely manner. The ordinary expenses of preparing such returns
shall be borne by the Trustee without any right of reimbursement therefor.
(f) The Trustee shall provide (i) to any Transferor of a Class R-I,
Class R-II or Class R-III Certificate such information as is necessary for the
application of any tax relating to the transfer of a Class R-I, Class R-II and
Class R-III Certificate to any Person who is not a Permitted Transferee, (ii)
to the Certificateholders such information or reports as are required by the
Code, the REMIC Provisions or State Tax Laws including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption) and (iii) to the Internal Revenue Service the name,
title, address and telephone number of the person who will serve as the
representative of each of REMIC I, REMIC II and REMIC III.
(g) The Trustee shall take such actions and shall cause each of
REMIC I, REMIC II and REMIC III created hereunder to take such actions as are
reasonably within the Trustee's control and the scope of its duties more
specifically set forth herein as shall be necessary to maintain the status
thereof as REMICs under the REMIC Provisions (and the Master Servicer shall
assist the Trustee, to the extent reasonably requested by the Trustee to do
so). None of the Master Servicer, the Special Servicer or the Trustee shall
knowingly or intentionally take any action, cause either of REMIC I, REMIC II
or REMIC III to take any action or fail to take (or fail to cause to be taken)
any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or
not taken, as the case may be, could (i) endanger the status of either REMIC
I, REMIC II or REMIC III as a REMIC or (ii) subject to Section 6.04, result in
the imposition of a tax under the REMIC Provisions upon either REMIC I, REMIC
II or REMIC III (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) (either
such event, an "Adverse REMIC Event") unless such party receives an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and such party determines that taking such
action is in the best interest of the Trust Fund and the Certificateholders,
at the expense of the Trust Fund, but in no event at the expense of such
party) to the effect that the contemplated action will not, with respect to
either REMIC I, REMIC II or REMIC III created hereunder, endanger such status
or, unless such party determines in its sole discretion to indemnify the Trust
Fund against such tax, result in the imposition of such a tax.
(h) In the event that any tax is imposed on "prohibited
transactions" of REMIC I, REMIC II or REMIC III created hereunder as defined
in Section 860F(a)(2) of the Code, on "net income from foreclosure property"
of REMIC I, REMIC II or REMIC III as defined in Section 860G(c) of the Code,
or any other tax is imposed by the Code or any applicable provisions of state
or local tax laws, such tax shall be charged (i) to a Servicer, if such tax
arises out of or results from a breach by such Servicer of any of its
obligations under this Agreement, (ii) to the Trustee, if such tax arises out
of or results from a breach by the Trustee of any of its
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obligations under this Agreement (iii) otherwise, against amounts on deposit
in the Certificate Account and on the Distribution Date(s) following such
reimbursement the aggregate of such taxes shall be allocated in reduction of
the Interest Distribution Amount on each Class entitled thereto in the same
manner as if such taxes constituted a Prepayment Interest Shortfall.
(i) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to REMIC I, REMIC II and REMIC III on a
calendar year and on an accrual basis or as otherwise may be required by the
REMIC Provisions.
(j) Following the Startup Day, neither any Servicer nor the Trustee
shall accept any contributions of assets to REMIC I, REMIC II or REMIC III
unless the Master Servicer and the Trustee shall have received an Opinion of
Counsel (at the expense of the party seeking to make such contribution) to the
effect that the inclusion of such assets in REMIC I, REMIC II or REMIC III
will not cause any of REMIC I, REMIC II or REMIC III to fail to qualify as
REMICs at any time that any Certificates are outstanding or subject any of
REMIC I, REMIC II or REMIC III to any tax under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(k) Neither the Master Servicer, the Special Servicer nor the
Trustee shall enter into any arrangement by which REMIC I, REMIC II or REMIC
III will receive a fee or other compensation for services nor, to the extent
reasonably within their control, permit either such REMIC to receive an income
from assets other than "qualified mortgages" as defined in Section 860G(a)(3)
of the Code or "permitted investments" as defined in Section 860G(a)(5) of the
Code.
(l) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury regulations, the "latest possible maturity date" by which the Class
Balance of each Class of Certificates representing a regular interest in REMIC
III and the Uncertificated Class would be reduced to zero is the Distribution
Date in April 2034, which is the first Distribution Date following the second
anniversary of the date on which the Stated Principal Balance of all the
Mortgage Loans would be zero, assuming no prepayments and that the Balloon
Mortgage Loans fully amortize according to their amortization schedule and no
Balloon Payment is made.
(m) Within 30 days after the Delivery Date, the Trustee shall
prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for REMIC I, REMIC II and REMIC III.
(n) None of the Trustee, the Master Servicer or the Special Servicer
shall sell or dispose of any of the Mortgage Loans (except in connection with
(i) the default, imminent default or foreclosure of a Mortgage Loan, including
but not limited to, the acquisition or sale of a Mortgage Property acquired by
deed in lieu of foreclosure, (ii) the bankruptcy of REMIC I, REMIC II and
REMIC III, (iii) the termination of REMIC I, REMIC II and REMIC III pursuant
to Article XII of this Agreement or (iv) a purchase of Mortgage Loans pursuant
to Article II of this agreement), nor acquire any assets for REMIC I, REMIC II
and REMIC III, nor sell or dispose of any investments in the Collection
Account for gain, nor accept any contributions to REMIC I, REMIC II and REMIC
III after the Delivery Date, in each case unless it has received
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an Opinion of Counsel that such sale or disposition will not affect adversely
the status of REMIC I, REMIC II and REMIC III as REMICs.
(o) The Depositor shall provide or cause to be provided to the
Trustee, within ten (10) days after the Delivery Date, and thereafter on an
ongoing basis, all information or data requested by the Trustee that the
Trustee reasonably determines to be relevant for tax purposes as to the
valuations and issue prices of the Certificates, including without limitation,
the price, yield, original issue discount, market discount or premium,
Prepayment Assumption and projected cash flow (based upon the Prepayment
Assumption) of the Certificates. In addition, the Master Servicer, the Special
Servicer and the Depositor shall provide on a timely basis to the Trustee or
its designee such information with respect to the Trust Fund as is in its
possession and reasonably requested by the Trustee to enable it to perform its
obligations under this Article. The Trustee shall be entitled to rely
conclusively upon all such information so provided to it without recalculation
or other investigation.
(p) The Trustee shall be entitled to the reimbursement of its
reasonable expenses incurred in the performance of its duties under this
Section 3.11 as may be agreed upon by the Trustee and the Depositor, provided
that the Trustee shall pay out of its own funds, without any right of
reimbursement, any and all ordinary expenses of the Trust Fund incurred in the
performance of its duties under this Article but shall be reimbursed, except
as otherwise expressly provided for herein by the Trust Fund for any of its
extraordinary expenses, including any taxes or tax-related payments, any
expenses involved in any tax examination, audit or proceeding, and the expense
of any tax-related Opinion of Counsel or other professional advice requested
by the Trustee for the benefit or protection of the Certificateholders.
(q) The Trust shall treat the rights of the Class NR Certificates,
in the portion of the Trust Fund consisting of (i) Excess Interest collected
on ARD Loans, and (ii) Default Interest collected on any Mortgage Loan, as the
beneficial interest in a grantor trust and not as an interest in or an
obligation of REMIC I, REMIC II or REMIC III for federal income tax purposes.
Section 3.12 Notices to Mortgagors.
The Master Servicer shall, within five (5) Business Days of the
Delivery Date for any Mortgage Loan, send by first class mail or by hand
delivery written notice to the related Mortgagor that the Master Servicer has
been engaged to service such Mortgage Loan, which notice shall direct such
Mortgagor to make further payments and to send all future notices with respect
to such Mortgage Loan directly to the Master Servicer. Notwithstanding the
foregoing, the Master Servicer shall not be required to send such notice with
respect to any given Mortgage Loan if the Master Servicer was the servicer of
such Mortgage Loan prior to the Delivery Date or if the Mortgage Loans shall
be subserviced pursuant to Section 3.13 by a subservicer which was the
servicer of such Mortgage Loan prior to the Delivery Date, and there is no
change in where the Mortgagor is required to send payments under the Mortgage
Loan.
Section 3.13 Subservicing.
The Master Servicer may enter into subservicing agreements with one
or more subservicers (including subsidiaries or affiliates of the Master
Servicer or the Depositor) for the
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servicing and administration of the Mortgage Loans. The Special Servicer may
enter into subservicing agreements with one or more subservicers (including
subsidiaries or affiliates of the Special Servicer or the Depositor) for the
servicing and administration of the Mortgage Loans; provided, however, that
after the Delivery Date, the Special Servicer shall not enter into a
subservicing agreement with a new subservicer unless either (a) Fitch shall
have confirmed in writing to the Trustee that such contract will not result in
a qualification, downgrade or withdrawal of the then current ratings on the
Certificates or (b) such contract relates to less than 25% of the Mortgage
Loans by outstanding principal balance. References in this Agreement to
actions taken or to be taken by the Master Servicer or the Special Servicer in
servicing the Mortgage Loans include actions taken or to be taken by a
subservicer on behalf of such Master Servicer or Special Servicer.
Notwithstanding any subservicing agreement, any of the provisions of
this Agreement relating to agreements or arrangements between either Servicer
and a subservicer or reference to actions taken through such Persons or
otherwise, such Servicer shall remain obligated and liable to the Trustee and
Certificateholders for the servicing and administering of the Mortgage Loans
in accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing agreements or
arrangements, or by virtue of indemnification from a subservicer, and to the
same extent and under the same terms and conditions as if such Servicer alone
were servicing and administering the Mortgage Loans and such Servicer shall
pay the fees for any subservicer from its own funds. Each Servicer shall be
entitled to enter into any agreement with a subservicer for indemnification of
such Servicer and nothing contained in this Agreement shall be deemed to limit
or modify such indemnification.
Any subservicing agreement that may be entered into and any other
transactions or servicing arrangements relating to the Mortgage Loans
involving a subservicer shall be upon terms and conditions consistent with
this Agreement and shall be deemed to be between the subservicer and the
related Servicer, and none of the Trustee, the Certificateholders nor the
Depositor shall be deemed parties thereto and none of such Persons shall have
claims or rights (except as specified below), nor obligations, duties or
liabilities with respect to the subservicer; provided that the Trustee and the
Certificateholders may rely upon the representations and warranties of the
subservicer contained therein and each of the Trustee and the Depositor shall
be a third party beneficiary of the covenants and other provisions setting
forth obligations of the subservicer therein.
If the Trustee or any successor Servicer assumes the obligations of
the Master Servicer or the Special Servicer, as applicable, in accordance with
this Agreement, the Trustee or such successor Servicer may, at its option, (i)
terminate any subservicing agreement entered into by the Master Servicer or
Special Servicer without payment of a termination fee, or (ii) succeed to all
of the rights and obligations of the Master Servicer or Special Servicer under
any subservicing agreement, subject to the terms of the related subservicing
agreement. In the event the Trustee or such successor Servicer assumes the
obligations of the Master Servicer or the Special Servicer hereunder, it shall
be deemed to have assumed all of the interest of the Master Servicer or
Special Servicer therein (but not any liabilities or obligations in respect of
acts or omissions of the Master Servicer or Special Servicer prior to such
deemed assumption) and to have replaced the Master Servicer or the Special
Servicer, as applicable, as a party to such
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subservicing agreement to the same extent as if such subservicing agreement
had been assigned to the Trustee or such successor Servicer, except that the
Master Servicer or the Special Servicer shall not thereby be relieved of any
liability or obligations under such subservicing agreement that accrued prior
to the assumption of duties hereunder by the Trustee or such successor
Servicer.
No subservicer may modify the terms of a Mortgage Loan or initiate
foreclosure proceedings with respect to any Mortgaged Property without the
approval of the related Servicer. In the event that the Trustee or any
successor Servicer assumes the servicing obligations of the Master Servicer or
the Special Servicer, as applicable, upon request of the Trustee or such
successor Servicer, the Master Servicer or Special Servicer shall, at its own
expense, promptly deliver to the Trustee or such successor Servicer all
documents and records relating to any subservicing agreement and the Mortgage
Loans then being serviced thereunder, and the Servicer will otherwise use its
best efforts to effect the orderly and efficient transfer of any subservicing
agreement to the Trustee or such successor Servicer.
Section 3.14 Record Title to Mortgage Loans, Etc.
No Servicer shall hold record title to any Mortgage or any Mortgage
Note.
Section 3.15 Release of Documents and Instruments of Satisfaction.
The Trustee (or any Custodian appointed by the Trustee) may, subject
to the terms hereof, upon receipt of a Request for Release and Receipt of
Documents provided by any Servicer substantially in the form set forth on
Exhibit Y, release to such Servicer the related Mortgage Loan File or the
documents from a Mortgage Loan File set forth in such request. Each Servicer
acknowledges that during all times that any Mortgage Loan File or any contents
thereof are in the physical possession of such Servicer, such Mortgage Loan
File and the documents contained therein shall be held by the Servicer in
trust for the benefit of the Certificateholders.
Subject to any state law requirement or court order, each Servicer
hereby agrees to return to the Trustee or, if the Trustee is not the
Custodian, the Custodian each and every document previously requested from the
Mortgage Loan File when such Servicer's need therefor in connection with such
foreclosure or servicing no longer exists, unless the related Mortgage Loan
shall be liquidated or paid in full, in which case, upon receipt of the
Request for Release and Receipt of Documents from either Servicer, the
Custodian may release the related Servicer's prior request form, together with
all other documents still retained by the Custodian with respect to such
Mortgage Loan, to such Servicer.
Upon receipt of the payment in full of any Mortgage Loan, or upon
the receipt by the Master Servicer or Special Servicer of a notification that
payment in full will be escrowed in a manner customary for such purposes, such
Servicer shall promptly deliver to the Trustee or, if the Trustee is not the
Custodian, the Custodian a Request for Release and Receipt of Documents
substantially in the form set forth on Exhibit S requesting delivery to such
Servicer of the Mortgage Loan File for such Mortgage Loan and indicating that
all amounts received in connection with such payment that are required to be
deposited in the Collection Account pursuant to Section 4.02 hereof have been
or will be so deposited.
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The Master Servicer and the Special Servicer (the latter, with a
copy to the Master Servicer) shall forward to the Trustee or, if the Trustee
is not the Custodian, the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into by such Servicer in accordance with this Agreement within ten
(10) Business Days of the execution thereof and the delivery of such
instrument to such Servicer; provided, however, that such Servicer may, in
lieu thereof, provide the Trustee or, if the Trustee is not the Custodian, the
Custodian with a certified true copy of any such document submitted for
recordation within five (5) Business Days of its execution, in which event
such Servicer shall provide the Trustee or, if the Trustee is not the
Custodian, the Custodian with the original of any document submitted for
recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the recorded original
within five (5) Business Days of receipt thereof by such Servicer.
Upon any payment in full of a Mortgage Loan, the Master Servicer or
Special Servicer may execute an instrument of satisfaction regarding the
related Mortgage and any other related Mortgage Loan Documents, which
instruments of satisfaction shall be recorded by such Servicer if required by
applicable law and shall be delivered to the Person entitled thereto, it being
understood and agreed that all reasonable expenses incurred by such Servicer
in connection with such instruments of satisfaction shall be deemed a
Servicing Advance, which shall be reimbursed pursuant to the terms of this
Agreement, but solely to the extent not otherwise chargeable to and paid by
the related Mortgagor. Such Servicer shall notify the Trustee of an instrument
of satisfaction described above as soon as practicable.
Section 3.16 Additional Servicing Restrictions; Defeasance.
With respect to each Mortgage Loan that provides for defeasance, to
the extent permitted by the terms of such Mortgage Loan in connection with
effecting a defeasance, the Master Servicer shall require the related
Mortgagor to (i) deliver to the Trustee replacement collateral consisting of
U.S. government securities within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments under
the Mortgage Note when due ("Defeasance Collateral"), (ii) deliver a written
certification from an independent certified public accounting firm certifying
that the Defeasance Collateral is sufficient to make such payments, (iii)
designate a Single-Purpose Entity (which may be a subsidiary of the Depositor
or the Master Servicer established for the purpose of assuming all defeased
Mortgage Loans) to assume the Mortgage Loan and own the Defeasance Collateral
and (iv) provide an opinion of counsel that the Trustee has a perfected
security interest in the Defeasance Collateral. All expenses of the defeasance
shall be charged to the Mortgagor or other responsible party to the extent
permitted by the terms of such Mortgage Loan and/or applicable law.
To the extent not inconsistent with the Mortgage Loan Documents, the
Master Servicer shall not allow a Mortgagor to defease a Mortgage Loan if as
of such time the Stated Principal Balance of such Mortgage Loan or the
aggregate outstanding Stated Principal Balances of such Mortgage Loan and each
other related outstanding Cross-Collateralized Mortgage Loan and each other
outstanding Mortgage Loan with a related Mortgagor would (a) be one of the top
ten Mortgage Loans or Mortgage Loan groups, as applicable, by Stated Principal
Balance, unless such Servicer shall have obtained written confirmation from
Fitch stating that upon such
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defeasance none of the then current rating or ratings of all outstanding
Classes of the Certificates would be qualified (if applicable), downgraded or
withdrawn by Fitch as a result thereof, (b) be greater than $5,000,000 or 1%
of the aggregate Stated Principal Balance of all of the Mortgage Loans, unless
such Servicer shall have obtained written confirmation from S&P stating that
upon such defeasance none of the then current rating or ratings of all
outstanding Classes of the Certificates would be qualified (if applicable),
downgraded or withdrawn by S&P as a result thereof, or (c) be equal to or less
than $5,000,000 or 1% of the aggregate Stated Principal Balance of all of the
Mortgage Loans, unless such Servicer delivers to the Trustee and the Rating
Agencies either (1) a letter or a certificate in the form of Exhibit O, or (2)
written confirmation from S&P stating that upon such defeasance none of the
then current rating or ratings of all outstanding Classes of the Certificates
would be qualified (if applicable), downgraded or withdrawn by S&P as a result
thereof. All costs and expenses incurred pursuant to the prior sentence which
are not permitted by applicable law or required under the related Mortgage
Loan Document to be paid by the related Mortgagor shall be a Servicing
Advance.
Section 3.17 Interest Reserve Account.
(a) The Trustee shall establish and maintain the Interest Reserve
Account, which shall be an Eligible Account or a subaccount of the Certificate
Account, in the name of the Trustee on behalf of the Certificateholders in
trust for the benefit of the Certificateholders. The Interest Reserve Account
shall be maintained as a segregated account, separate and apart from trust
funds for mortgage pass-through certificates of other series administered by
the Trustee and other accounts of the Trustee. Funds in the Interest Reserve
Account shall be held uninvested.
(b) On each Master Remittance Date occurring in (i) January of each
calendar year that is not a leap year and (ii) February of each calendar year,
the Trustee shall calculate the Withheld Amount with respect to each Interest
Reserve Loan. On each such Master Remittance Date, the Trustee shall withdraw
from the Certificate Account and deposit in the Interest Reserve Account an
amount equal to the 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 Remittance
Date in March of each calendar year, the Trustee shall transfer to the
Certificate Account the aggregate of all Withheld Amounts on deposit in the
Interest Reserve Account.
Section 3.18 Directing Certificateholder Contact with Servicers.
No less often than on a monthly basis, each of the Master Servicer
and the Special Servicer shall, without charge, make a knowledgeable Servicing
Officer available to answer questions from the Directing Certificateholder
regarding the performance and servicing of the Mortgage Loans and/or REO
Properties for which the Master Servicer or the Special Servicer, as the case
may be, is responsible.
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ARTICLE IV
MASTER SERVICING
Section 4.01 The Master Servicer.
(a) The Master Servicer shall service and administer each Mortgage
Loan (except as such obligations may be assigned to the Special Servicer
pursuant to Article VI hereof) on behalf of the Trust Fund and in the best
interests of and for the benefit of the Certificateholders in accordance with
the terms of this Agreement, the terms of the respective Mortgage Loans and
Accepted Master Servicing Practices.
(b) Subject to Accepted Master Servicing Practices, Section 4.16 and
the other terms of this Agreement and of each Mortgage Loan, the Master
Servicer shall have full power and authority to do or cause to be done any and
all things in connection with such servicing and administration that it may
deem, in its best judgment, necessary or desirable, including, without
limitation, to execute and deliver, on behalf of the Trust Fund, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to any Mortgage
Loan which is not a Specially Serviced Mortgage Loan. Without limiting the
generality of the foregoing, the Master Servicer shall, and is hereby
authorized and empowered with respect to each Mortgage Loan, to prepare,
execute and deliver, on behalf of the Trust Fund and at the Trust Fund's
expense, any and all financing statements, continuation statements and other
documents or instruments necessary to maintain the lien on the related
Mortgaged Property and related collateral. The Master Servicer shall service
and administer each Mortgage Loan in accordance with applicable state and
federal law and shall provide to each related Mortgagor any information
required to be provided to it thereby. Subject to the foregoing, the Master
Servicer shall service and administer each Mortgage Loan in accordance with
the related Mortgage Loan Documents, and shall enforce all provisions
designated in such Mortgage Loan Documents, including but not limited to the
establishment and administration of escrow accounts, reserve accounts, impound
accounts and operation and maintenance plans. The Master Servicer may from
time to time submit to the Trustee for execution any powers of attorney and
other documents necessary or appropriate to enable such Master Servicer to
carry out its servicing and administrative duties hereunder. Notwithstanding
the foregoing, the Master Servicer shall not modify, waive or amend any term
of any Mortgage Loan (or consent to any such modification, waiver or
amendment) if such modification, waiver or amendment would affect the related
Monthly Payment (other than the portion thereof relating to Escrow Payments),
the related Maturity Date, the related Mortgage interest rate or the related
amortization schedule unless the Master Servicer determines that the
contemplated action will not result in an Adverse REMIC Event in accordance
with Accepted Master Servicing Practices or in reliance upon an Opinion of
Counsel. The Master Servicer may only waive late payment charges in respect of
a Mortgage Loan with the Directing Certificateholder's prior consent;
provided, however, the Master Servicer may waive late payment charges in
respect of a Mortgage Loan without the Directing Certificateholder's prior
consent to the extent the same exceed the sum of (x) all xxxxxxxxxxxx X&X
Advances made in respect of such Mortgage Loan (after the Delivery Date and
prior to the collection of such late payment charges), together with all
interest thereon at the Advance Rate, and (y) all reimbursements owed to the
Special Servicer or the Trust for costs incurred in connection with
inspections of the related Mortgaged Property.
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The Master Servicer may only waive Default Interest with the Directing
Certificateholder's prior consent. The Master Servicer shall prepare for
signature by the Trustee any such powers of attorney or other documents
necessary or appropriate to carry out such duties hereunder. The Trustee shall
not be responsible for any action taken or omitted to be taken by any Servicer
pursuant to the application of such powers of attorney unless such action was
taken or omitted to be taken at the express written direction of, and in the
manner specified by, the Trustee. Notwithstanding anything contained herein to
the contrary, neither the Master Servicer nor the Special Servicer shall
without the Trustee's written consent: (i) except as relating to a Mortgage
Loan which the Master Servicer or the Special Servicer, as applicable, is
servicing pursuant to its respective duties herein (in which case such
Servicer shall give notice to the Trustee of the initiation), initiate any
action, suit or proceeding solely under the Trustee's name without indicating
the Master Servicer's or Special Servicer's, as applicable, representative
capacity, or (ii) take any action with the intent to, and which actually does
cause, the Trustee to be registered to do business in any state.
(c) The Master Servicer assumes, with respect to each Mortgage Loan
(except as otherwise set forth in Article VI and this Section 4.01(c)), full
responsibility for the timely payment of all customary, reasonable and
necessary "out of pocket" costs and expenses (including reasonable attorneys'
fees and disbursements) incurred in connection with:
(i) any enforcement, administrative or judicial
proceedings, or any necessary legal work or
advice specifically related to servicing the
Mortgage Loans, including but not limited to,
bankruptcies, condemnations, drug seizures,
foreclosures by subordinate or superior
lienholders, legal costs associated with
preparing powers of attorney pursuant to Section
4.01(b) above, and other legal actions
incidental to the servicing of the Mortgage
Loans (provided that such expenses are
reasonable);
(ii) all ground rents, taxes, assessments, water
rates, sewer rates and other charges, as
applicable, that are or may become a lien upon a
related Mortgaged Property, and all fire, flood
and hazard insurance coverage (to the extent
required in this Agreement, including renewal
payments); and
(iii) compliance with the servicing provisions
applicable to such Master Servicer set forth
herein.
With respect to any costs described in clauses (i) and (ii) above and to the
extent the related Mortgage Loan Documents do not provide for Escrow Payments
or the Master Servicer determines that any such payments have not been made by
the related Mortgagor, the Master Servicer shall make a Servicing Advance to
effect timely payment of all such expenses (in the case of those set forth in
clause (ii) above, before they become delinquent) if the Master Servicer shall
have or should have had knowledge based on Accepted Master Servicing Practices
of such nonpayment by the Mortgagor before it becomes delinquent, and,
otherwise, the Master Servicer
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shall effect immediate payment of all such expenses which it has knowledge or
should have knowledge based on Accepted Master Servicing Practices have become
delinquent, unless, with respect to the payment of taxes and assessments, the
Master Servicer reasonably anticipates that such xxxx will be paid by the
Mortgagor by the close of business on or before the delinquency date, but in
any event the Master Servicer shall make such advance within 90 days after
such date or five Business Days after the Master Servicer has received
confirmation that such item has not been paid, whichever is earlier, provided
that during such 90-day period the Master Servicer shall use best efforts
consistent with Accepted Master Servicing Practices to confirm whether such
xxxx has been paid. The Master Servicer shall make such Servicing Advances
with respect to Mortgage Loans from its own funds to effect such payments only
to the extent not deemed a Nonrecoverable Advance and shall be reimbursed
therefor in accordance with Section 4.03(a) hereof. With respect to any costs
described in clause (iii) above, the Master Servicer shall be entitled to
reimbursement of such costs as Servicing Advances only to the extent expressly
provided in this Agreement. If the Master Servicer determines with respect to
any Mortgage Loan that a Servicing Advance, if made, would constitute a
Nonrecoverable Advance or that it has made a Nonrecoverable Advance, it shall
deliver to the Trustee and the Directing Certificateholder a Nonrecoverable
Advance Certificate. Notwithstanding the foregoing, with respect to legal
costs incurred in connection with preparing powers of attorney pursuant to
clause (i) above, the Master Servicer shall not be entitled to reimbursement
for preparing a form of a power of attorney for each state or for legal costs
incurred in connection with the preparation of a power of attorney
specifically for a Mortgage Loan.
(d) Upon the occurrence of a Servicing Transfer Event with respect to
a Mortgage Loan, the Master Servicer immediately notify the Directing
Certificateholder and shall effect the timely and efficient transfer of its
servicing responsibilities with respect to such Mortgage Loan to the Special
Servicer.
(e) Unless the Master Servicer and the Special Servicer with respect
to a Mortgage Loan are the same Person, not later than two (2) Business Days
after a Mortgage Loan ceases to be a Specially Serviced Mortgage Loan, the
Master Servicer shall send a letter by first class mail substantially in the
form of Exhibit L notifying the related Mortgagor that servicing has been
transferred to the Master Servicer.
(f) The Master Servicer shall have no responsibility for the
performance by the Special Servicer of its duties hereunder, provided that the
Master Servicer shall continue certain servicing and reporting functions with
respect to Specially Serviced Mortgage Loans as set forth in this Agreement.
(g) The Master Servicer shall calculate for each Mortgage Loan, to
the extent provided in and consistent with a Mortgage Loan, any related
Prepayment Premium required to be calculated by reference to a U.S. Treasury
Rate (or a specified number of basis points in excess thereof) by determining
the present value as of the date of prepayment of the remaining Monthly
Payments from such date of prepayment through the related stated maturity
(including the Balloon Payment). With respect to any Specially Serviced
Mortgage Loan, the Master Servicer shall request confirmation from the Special
Servicer as to the calculation of the related Prepayment Premium.
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(h) With respect to any Mortgage Loan that has a ground lease, the
Master Servicer, on behalf of the Trustee, shall send notice to the related
ground lessor to the effect that the Trustee is the new mortgagee under such
Mortgage Loan.
Section 4.02 Collection Account; Collection of Certain Mortgage Loan
Payments.
(a) Subject to Article VI, from the date hereof until the principal
and interest on the Mortgage Loans are paid in full, the Master Servicer shall
proceed diligently to collect all payments called for under the terms and
provisions of the Mortgage Loans, and shall follow collection procedures in
accordance with Accepted Master Servicing Practices, to the extent such
procedures shall be consistent with this Agreement and, in connection with
collections under any applicable insurance policy, the terms of such insurance
policy required to be maintained with respect thereto.
(b) On or before the Delivery Date, and as necessary thereafter, the
Master Servicer shall establish, and hereby agrees to maintain for the
duration of this Agreement, the Collection Account. The Collection Account
shall be an Eligible Account. The Collection Account shall relate solely to
collections with respect to Mortgage Loans, and funds in the Collection
Account shall be held by the Master Servicer for the benefit of the
Certificateholders and shall not be commingled with any other moneys. The
Master Servicer shall deposit, within one Business Day following receipt, all
collections with respect to the Mortgage Loans received by it into the
Collection Account and the applicable subaccount of the Escrow Account
pursuant to this Section 4.02(b) and pursuant to Section 4.06(a),
respectively. The Master Servicer shall, within five (5) Business Days of the
establishment thereof, notify the Trustee and the Special Servicer in writing
of the location and account number thereof and shall give the Trustee and the
Special Servicer written notice of any change of such location or account
number on or prior to the date of such change. Funds in the Collection Account
may be invested by, at the risk of, and for the benefit of, the Master
Servicer in Permitted Investments which shall not be sold or disposed of prior
to maturity. All such Permitted Investments shall be registered in the name of
the Master Servicer (in its capacity as such and for the benefit of the
Certificateholders) or its nominee. All income therefrom may be retained by
the Master Servicer as additional servicing compensation. In addition, the
Master Servicer shall deposit into such account out of its own funds an amount
representing any net losses realized on Permitted Investments with respect to
funds in such account no later than the first Master Remittance Date after the
occurrence of such loss.
(c) The Master Servicer shall deposit the following amounts, without
duplication, into the Collection Account:
(i) all payments on account of principal, including
amounts required to be deposited therein
pursuant to Section 2.04 or Section 4.06(c)(iii)
hereof, and Principal Prepayments, on the
Mortgage Loans;
(ii) all payments on account of interest (including
Excess Interest and Default Interest) on the
Mortgage
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Loans (including amounts required to be
deposited therein pursuant to Section 2.04 or
Section 4.06(c)(iii) hereof);
(iii) all Liquidation Proceeds, Excess Condemnation
Proceeds and Excess Insurance Proceeds with
respect to the Mortgaged Properties;
(iv) out of such Master Servicer's own funds, an
amount representing net losses realized on
Permitted Investments with respect to funds in
such Collection Account pursuant to Section
4.02(b);
(v) any amounts representing Prepayment Premiums
paid by the Mortgagors;
(vi) any amounts received from the Special Servicer
pursuant to Sections 6.05(b)(iii) and 6.07;
(vii) any other amounts received from the Mortgagors
with respect to the Mortgage Loans; and
(viii) any amounts received from the Special Servicer
under Section 6.08 hereof;
but excluding (1) REO Proceeds (except as provided in clauses (vi) and (viii)
above), (2) amounts representing fees payable under any Mortgage Loan
Document, late payment charges (to the extent not required to offset (A) all
interest accrued on Advances, calculated at the Advance Rate, made in
respect of the related Mortgage Loan (after the Delivery Date and prior to
collection of such late payment charges) and not previously reimbursed to the
Trust Fund and (B) all reimbursements owed to the Special Servicer or the
Trust for costs incurred in connection with inspections of the related
Mortgaged Property), modification fees, assumption fees (subject to Section
4.08(d)), processing fees, extension fees, NSF check charges and similar fees
and charges payable by Mortgagors with respect to the Mortgage Loans, which
may be retained by the Master Servicer (or the Special Servicer or the Trust
if received with respect to a Specially Serviced Mortgage Loan) as additional
servicing compensation hereunder (provided that all NSF charges shall be
payable to the Master Servicer) (3) any amounts received from a Mortgagor to
reimburse such Master Servicer, (or the Special Servicer with respect to a
Specially Serviced Mortgage Loan), for expenses pursuant to the terms of the
Mortgage Loan, including costs incurred in connection with the preparation of
a Property Inspection Report and (4) Escrow Payments.
(d) All funds deposited by the Master Servicer in the related
Collection Account shall be held for the benefit of the Certificateholders
until disbursed or withdrawn in accordance herewith. Except as expressly
permitted or required hereunder, the Master Servicer shall not sell, transfer
or assign to any Person any interest (including any security interest) in
amounts credited or to be credited to the Collection Account or take any
action towards that end, and shall maintain such amounts free of all liens,
claims and encumbrances of any nature.
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(e) The Master Servicer shall, within one Business Day of receipt or
discovery of receipt, remit to the Special Servicer for deposit in the related
REO Account any REO Proceeds deposited into the Collection Account or any
related Escrow Account.
Section 4.03 Permitted Withdrawals from the Collection Account.
(a) The Master Servicer shall make withdrawals from the Collection
Account of amounts on deposit therein attributable to the Mortgage Loans for
(without duplication) the following purposes in the following order of
priority:
(i) to recoup any amount deposited in the Collection
Account and not required to be deposited
therein;
(ii) on each Master Remittance Date, from amounts on
deposit in the Collection Account representing
payments by a Mortgagor of interest or
Liquidation Proceeds, Excess Insurance Proceeds
and Excess Condemnation Proceeds and REO
Proceeds, with respect to a Mortgage Loan and
proceeds from the repurchase of a Mortgage Loan
pursuant to the terms hereof, to pay to itself
the Master Servicing Fee and from such amounts
and other amounts on deposit in the Collection
Account representing payments by any Mortgagor
of principal, to pay the Special Servicer the
Basic Special Servicing Fee, if applicable;
(iii) to reimburse the Trustee and itself, in that
order, for previously xxxxxxxxxxxx X&X Advances
from any amounts on deposit in such account,
together with accrued and unpaid interest at the
Advance Rate pursuant to Section 4.05(e), the
right to withdraw amounts pursuant to this
subclause (iii) being limited to amounts on
deposit in the Collection Account in respect of
Liquidation Proceeds, Excess Insurance Proceeds,
REO Proceeds and Excess Condemnation Proceeds
with respect to the Mortgage Loan and proceeds
from the repurchase of a Mortgage Loan pursuant
to the terms hereof with respect to the Mortgage
Loan with respect to which such P&I Advance was
made or the related Mortgaged Property, and any
other amounts received on such Mortgage Loan
that represent late recoveries of payments with
respect to which such P&I Advances were made;
(iv) to the extent not reimbursed from amounts on
deposit in the Escrow Account pursuant to
Section 4.06(c)(vii) hereof, to reimburse the
Trustee and then to itself and the Special
Servicer, pro rata, pursuant to Sections
4.01(c), 4.05 and 6.10, for previously
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unreimbursed Servicing Advances incurred in
connection with a Mortgaged Property (which
amounts shall be accounted for in accordance
with the provisions of Section 4.10 hereof)
together with accrued and unpaid interest at the
Advance Rate pursuant to Sections 4.01(c),
4.05(e) and 6.10, the right to withdraw amounts
pursuant to this subclause (iv) being limited to
amounts on deposit in the Collection Account in
respect of Liquidation Proceeds, Excess
Insurance Proceeds, REO Proceeds and Excess
Condemnation Proceeds with respect to such
Mortgaged Property or proceeds from the
repurchase of a Mortgage Loan pursuant to the
terms hereof with respect to such Mortgaged
Property, and any other amounts received with
respect to the Mortgage Loan including late
recoveries of payments with respect to which
such Servicing Advances were made;
(v) [RESERVED];
(vi) on each Master Remittance Date, to pay the
Trustee and itself, in that order, for accrued
and unpaid interest at the Advance Rate on any
reimbursed P&I Advances made with respect to any
Mortgage Loan from any amounts on deposit in the
Collection Account, to the extent not otherwise
offset by late payment charges collected on the
related Mortgage Loan during the same Collection
Period;
(vii) on each Master Remittance Date, to reimburse the
Trustee, and then itself and the Special
Servicer, pro rata, from any amounts on deposit
in the Collection Account for (A) any
unreimbursed Nonrecoverable Advance for which a
Nonrecoverable Advance Certificate has been
previously delivered or (B) any unreimbursed
Servicing Advance for an expense the payment or
reimbursement of which is not an obligation of
the related Mortgagors under the terms of the
related Mortgage Loan Documents, in each case,
together with interest at the Advance Rate
pursuant to Sections 4.05(e) and 6.10,
respectively, made with respect to the Mortgage
Loans;
(viii) on each Master Remittance Date, to pay itself
any reinvestment income on amounts on deposit in
the Collection Account to which it is entitled
pursuant to Section 4.02(b);
(ix) to pay expenses of the Trust Fund specifically
identified as such and authorized in this
Agreement;
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(x) on each Master Remittance Date, to make
remittances to the Trustee pursuant to Section
4.04 hereof;
(xi) on each Master Remittance Date, to make
remittances to the Special Servicer in respect
of the Workout Fee and the Liquidation Fee; and
(xii) to clear and terminate the Collection Account
upon termination of this Agreement.
(b) The Master Servicer shall keep and maintain separate accounting,
on a Mortgage Loan-by-Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account and determining any shortfall or
overpayment of any amounts due from or on behalf of any Mortgagor or Mortgaged
Property.
Section 4.04 Remittances to the Trustee.
(a) On each Master Remittance Date, the Master Servicer shall (1)
withdraw from the Collection Account and remit to the Trustee for deposit into
the Certificate Account, by wire transfer of immediately available funds, all
amounts on deposit in the Collection Account as of the related Determination
Date (including any amounts in respect of Excess Interest and Default
Interest) minus:
(i) any permitted charges against or withdrawals
from the Collection Account pursuant to clauses
(i) through (x) of Section 4.03(a); and
(ii) any amounts on deposit in the Collection Account
representing a Monthly Payment due on a Due Date
following the Collection Period for such Master
Remittance Date net of any reduction in the
aggregate amount of P&I Advances for such
Determination Date pursuant to Section 4.05(a)
(which amounts, other than those representing
Escrow Payments, shall be remitted pursuant to
this Agreement on the Master Remittance Date
immediately following the Collection Period in
which such Monthly Payment was due),
and (2) remit to the Trustee on or before 2:00 p.m., New York City time, any
P&I Advances required to be made on or prior to such Master Remittance Date
pursuant to Section 4.05(a). If the Trustee fails to receive by 2:00 p.m., New
York City time on the Master Remittance Date any or all of the amounts
required by this clause (a), the Trustee shall promptly notify (in accordance
with Section 13.05(b)) the Master Servicer of such failure.
(b) With respect to any Master Servicer remittance received by the
Trustee after the Master Remittance Date (including any P&I Advance), the
Master Servicer shall pay to the Trustee interest on such amount until paid at
the Advance Rate. Such interest shall be deposited into the Certificate
Account by the Master Servicer on the date such late payment is made and
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shall cover the period commencing with the day following the Master Remittance
Date and ending with the Business Day on which such payment is made, both
inclusive. The payment by the Master Servicer of any such interest shall not
be deemed an extension of time for payment or a waiver of any Event of
Default.
(c) The Master Servicer shall provide to the Trustee for delivery to
any beneficial owner of a Certificate information requested thereby with
respect to the calculation of any Prepayment Premium on a prepaying Mortgage
Loan.
Section 4.05 Master Servicer Advances.
(a) To the extent that as of the Determination Date for any month,
the full amount of the Monthly Payment due in such month with respect to any
Mortgage Loan has not been received by the Master Servicer, the Master
Servicer shall remit to the Trustee on the Master Remittance Date, for deposit
into the Certificate Account, a P&I Advance in an amount equal to the excess
of such Monthly Payment net of an amount corresponding to the Master Servicing
Fee over the amount received; provided, however, that the Master Servicer
shall not be required to make a Nonrecoverable Advance or make an advance for
Default Interest or Excess Interest and, provided further, that the Master
Servicer shall not be required to make a P&I Advance with respect to a Balloon
Payment and, provided further, that if a Collateral Value Adjustment exists
with respect to any Mortgage Loan, then, in the event of subsequent
delinquencies thereon, the interest portion of the P&I Advance in respect of
such Mortgage Loan for the related Distribution Date shall be reduced (it
being herein acknowledged that there shall be no reduction in the principal
portion of such P&I Advance) to equal the product of (i) the amount of the
interest portion of such P&I Advance for such Mortgage Loan for such
Distribution Date without regard to this proviso, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is equal to the
Stated Principal Balance of such Mortgage Loan immediately prior to such
Distribution Date, net of the related Collateral Value Adjustment, if any, and
the denominator of which is equal to the Stated Principal Balance of such
Mortgage Loan immediately prior to such Distribution Date. For purposes of the
immediately preceding sentence, the Monthly Payment due on the Maturity Date
for a Balloon Mortgage Loan will be the amount that would be due on such day
based on the full amortization schedule used to calculate the Monthly Payments
thereon prior to the Maturity Date. If the Master Servicer determines that a
P&I Advance is required, it shall on such Master Remittance Date remit to the
Trustee for deposit in the Certificate Account out of its own funds an amount
equal to the P&I Advance; provided, however, that the aggregate amount of such
P&I Advances for any Determination Date shall be reduced by any amounts being
held for future remittance by the Master Servicer pursuant to Section
4.04(a)(1)(ii) before deduction for reductions in P&I Advances pursuant to
this Section 4.05. Any funds being held in the Collection Account for future
distribution and so used shall be replaced by the Master Servicer from its own
funds as a P&I Advance (or from receipts on Mortgage Loans against which such
P&I Advance was made) by deposit in such Collection Account on or before any
future Master Remittance Date to the extent that funds in such Collection
Account on such Master Remittance Date shall be less than payments to the
Trustee required to be made on such date. If the Master Servicer determines
with respect to any Mortgage Loan that a P&I Advance, if made, would
constitute a Nonrecoverable Advance or that it has made a Nonrecoverable
Advance, it shall deliver to the Directing Certificateholder and the Trustee a
Nonrecoverable Advance Certificate, upon which the Trustee may conclusively
rely.
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(b) [RESERVED]
(c) The Master Servicer, as requested by the Special Servicer with
respect to any Specially Serviced Mortgage Loan, shall make Servicing Advances
from its own funds to effect the timely payment of any Property Protection
Expense or Property Improvement Expense upon five (5) Business Days notice;
provided that the Special Servicer shall only request the Master Servicer to
make Servicing Advances with respect to any Specially Serviced Mortgage Loan
from its own funds to the extent there are not sufficient funds in the related
REO Account (taking into account any necessary reserve amounts as to REO
Loans) or the related Escrow Account available to cover any such expenses and
as permitted under the Mortgage Loan Documents and the Master Servicer shall
not be required to make a Nonrecoverable Advance. The Master Servicer shall be
entitled to reimbursement for any unreimbursed Servicing Advance made pursuant
to the immediately preceding sentence pursuant to this Agreement.
(d) [RESERVED]
(e) The Trustee, and subject to Section 4.05(c), the Master Servicer,
shall be entitled to interest on any Advance made thereby with respect to a
Mortgage Loan. Such interest shall accrue at the Advance Rate from the date on
which such Advance was made to but not including any Business Day on which the
Person making such Advance is reimbursed for such Advance as provided in this
Agreement; provided, however, that neither the Master Servicer nor any other
party shall be entitled to interest accrued on the amount of any P&I Advance
with respect to any Mortgage Loan if the related Monthly Payment is received
by the Master Servicer on or prior to the Master Remittance Date immediately
following the Due Date for such Monthly Payment; provided, further, that
neither the Master Servicer nor any other party shall be entitled to interest
accrued on the amount of any P&I Advance with respect to any of Mortgage Loan
Numbers 1, 50 or 116 (as identified on Exhibit G) made before the end of any
such Mortgage Loan's related grace period.
(f) [RESERVED]
(g) The Master Servicer shall determine on each Business Day whether
amounts are available in the Collection Account or Escrow Account to reimburse
the Trustee or itself for unreimbursed Advances made pursuant to this
Agreement. The Master Servicer shall withdraw all amounts necessary to make
such reimbursement to the extent such withdrawals are permitted under Section
4.03(a) or Section 4.06(c), and shall reimburse the Trustee and itself, in
that order, on each Business Day.
Section 4.06 Escrow Accounts.
(a) On or before the Delivery Date, the Master Servicer shall
establish, and hereby agrees to maintain for the duration of this Agreement,
an Escrow Account. The Escrow Account shall be an Eligible Account to the
extent consistent with the related Mortgage Loan Documents. The Escrow Account
shall consist of one or more subaccounts, each of which shall relate solely to
collections with respect to a Mortgage Loan, and funds in each such subaccount
in the Escrow Account shall be held by such Master Servicer for the benefit of
the Certificateholders and the related Mortgagors and shall not be commingled
with any other
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moneys. The Master Servicer shall, within five (5) Business Days of the
establishment thereof, notify the Trustee and the Special Servicer in writing
of the location and account number of the Escrow Account (and any subaccount
thereof) and shall give the Trustee and the Special Servicer written notice of
any change of such location or account number on or prior to the date of such
change. The Master Servicer shall deposit into the appropriate subaccount of
the related Escrow Account any Escrow Payments that it receives, including,
without limitation, (i) any Payment Reserve, Repair and Remediation Reserve,
Replacement Reserve or Tenant Improvement and Leasing Commissions Reserve
required to be deposited therein on the applicable closing date and as of each
Due Date for a Mortgage Loan and (ii) any related Insurance Proceeds or
Condemnation Proceeds. In addition, such Master Servicer shall deposit, on the
related Master Remittance Date, into such subaccount out of its own funds an
amount representing net losses realized on Permitted Investments with respect
to funds in such subaccount except to the extent such investments were made at
the direction of and for the benefit of the Mortgagor under the related
Mortgage Loan Documents pursuant to the second sentence of Section 4.06(b).
(b) Subject to the terms of the Mortgage Loan Documents, and to
applicable Law, any funds in any subaccount of an Escrow Account may be
invested by, at the risk of, and for the benefit of, the Master Servicer in
Permitted Investments and any such Permitted Investment shall not be sold or
disposed of prior to its maturity. If, however, pursuant to the terms of the
related Mortgage Loan Documents, or pursuant to applicable Law, any funds in
an Escrow Account are required to be invested for the benefit of the related
Mortgagor, the Master Servicer shall so invest such funds.
(c) Withdrawals from any subaccount of an Escrow Account may be made
(to the extent amounts have been escrowed for such purpose and to the extent
permitted by the related Mortgage Loan Documents) only for the following
purposes in the following order of priority:
(i) to recoup any amount deposited in such
subaccount and not required to be deposited
therein or to refund to the related Mortgagor
any sums determined to be overages;
(ii) to pay interest earned on such account, if any,
to itself as additional servicing compensation
or to the related Mortgagor as required by
subsection (b) above;
(iii) from amounts on deposit in such subaccount
representing the Payment Reserve for a Mortgage
Loan, to effect (by means of deposit to the
Collection Account pursuant to Section 4.02(c)
hereof) the timely payment of principal or
interest on such Mortgage Loan;
(iv) to effect the timely payment of taxes,
assessments, insurance and other basic carrying
costs in connection with the related Mortgage
Loan;
(v) from amounts on deposit in such subaccount
representing Insurance Proceeds for a Mortgage
Loan, to
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effect the restoration or repair of the related
Mortgaged Property or to release to the related
Mortgagor in accordance with the terms of the
related Mortgage Loan Documents or, to the
extent not expressly provided therein, in
accordance with Accepted Master Servicing
Practices or Accepted Special Servicing
Practices, as applicable, and applicable Law;
(vi) from amounts on deposit in such subaccount
representing Condemnation Proceeds for a
Mortgage Loan, to effect the restoration or
repair of the related Mortgaged Property or to
release to the related Mortgagor in accordance
with the terms of the related Mortgage Loan
Documents or, to the extent not expressly
provided therein, in accordance with Accepted
Master Servicing Practices or Accepted Special
Servicing Practices, as applicable, and
applicable Law;
(vii) without duplication of any amounts otherwise
reimbursed pursuant to Section 4.03(a) to the
Master Servicer or the Special Servicer, to
reimburse the Master Servicer or the Special
Servicer, in that order, out of related
collections on the related Mortgage Loan for any
Servicing Advances made by such Servicer
pursuant to this Agreement together with
interest at the Advance Rate pursuant to
Sections 4.05(e) and 6.10, respectively;
(viii) upon satisfaction of the conditions relating
thereto in the related Mortgage Loan Documents,
to disburse to the related Mortgagor any amounts
in the Replacement Reserve, the Repair and
Remediation Reserve or the Tenant Improvement
and Leasing Commissions Reserve required to be
so disbursed; or
(ix) to clear and terminate such subaccount on
payment in full of the related Mortgage or upon
termination of this Agreement.
(d) To the extent that interest earned on funds in an Escrow Account
is insufficient to pay interest on such funds to the related Mortgagor to the
extent required by applicable Law, the Master Servicer shall, as part of its
servicing duties under this Agreement, pay such interest from its own funds as
a Servicing Advance, and shall be entitled to reimbursement therefor pursuant
to Section 4.03(a) hereof; provided, however, that the Master Servicer shall
not be required to make a Nonrecoverable Advance.
(e) The Master Servicer shall maintain accurate records with respect
to each related Mortgaged Property reflecting the status of taxes,
assessments, insurance premiums and
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other similar items that are or may become a lien thereon and the status of
insurance premiums and ground rent, if applicable, payable in respect thereof.
The Master Servicer shall obtain, from time to time, all bills for the payment
of such items (including renewal premiums) and shall effect timely payment
thereof in accordance with the provisions of Sections 4.01(c) and 4.07 hereof,
employing for such purpose amounts in the related Escrow Account as allowed
under the terms of the related Mortgage Loan Documents or, if not paid from
amounts on deposit in such Escrow Account, by making a Servicing Advance
pursuant to Section 4.01(c) hereof. The Master Servicer shall be entitled to
reimbursement therefor with interest thereon at the Advance Rate pursuant to
Section 4.03(a) or Section 4.06(c).
Section 4.07 Maintenance of Insurance.
(a) The Master Servicer shall use its reasonable efforts consistent
with Accepted Master Servicing Practices to cause the related Mortgagor to
maintain with a Qualified Insurer (to the extent permitted by the Mortgage
Loan Documents), or if the Mortgagor does not so maintain, the Master Servicer
shall cause to be maintained with a Qualified Insurer for each related
Mortgaged Property all insurance required by the terms of the related Mortgage
Loan Documents; provided, that insurance in the amount required above is
available at a commercially reasonable cost and the Trustee, as mortgagee, has
an insurable interest. Subject to the preceding sentence, hazard insurance
shall be maintained in the amount set forth in the related Mortgage Loan
Documents but in any event in an amount at least equal to the lesser of (a)
the replacement cost of the improvements which are a part of such property
without deduction for depreciation and (b) the unpaid principal balance on
such Mortgage Loan. Such insurance policies shall also provide coverage in
amounts sufficient such that the insurance carrier would not deem the
Mortgagor to be a co-insurer thereunder. All such policies shall provide for
at least thirty (30) days' prior written notice (if available) to the Master
Servicer of any cancellation thereunder. The Master Servicer shall notify the
Trustee, the Rating Agencies and the Directing Certificateholder upon becoming
aware of any cancellation, reduction in the amount of, or material change in,
the coverage provided under any such insurance policy. If at any time the
Mortgaged Property is in a federally designated special flood hazard area, the
Master Servicer shall use its reasonable efforts consistent with Acceptable
Servicing Practices to cause the related Mortgagor to maintain or will itself
obtain flood insurance in respect thereof to the extent available at a
commercially reasonable cost and the Trustee, as mortgagee, has an insurable
interest. Such flood insurance shall be in an amount equal to the lesser of
(x) the unpaid principal balance of the related Mortgage Loan, (y) the maximum
amount of such insurance required by the terms of the related Mortgage Note or
Mortgage and (z) the maximum amount of such insurance that is available for
the related Mortgaged Property under the national flood insurance program
(assuming that the area in which such Mortgaged Property is located is
participating in such program). Any cost incurred in maintaining any insurance
required pursuant to this subsection (a) shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
unpaid principal balance of the related Mortgage Loan, notwithstanding that
the terms of the Mortgage Loan so permit but such cost shall be deemed to be a
Servicing Advance and shall be reimbursed as provided in this Agreement.
(b) If the Master Servicer or the Special Servicer, as applicable,
causes any Mortgaged Property or REO Property to be covered by a master force
placed insurance policy, which policy is issued by a Qualified Insurer and
provides no less coverage in scope and amount
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for such Mortgaged Property or REO Property than the insurance required to be
maintained pursuant to Section 4.07(a), the Master Servicer or Special
Servicer shall conclusively be deemed to have satisfied its obligations to
maintain insurance pursuant to Section 4.07(a). Such policy may contain a
deductible clause, in which case the Master Servicer or Special Servicer, as
applicable shall, in the event that (i) there shall not have been maintained
on the related Mortgaged Property or REO Property a policy otherwise complying
with the provisions of Section 4.07(a), and (ii) there shall have been one or
more losses which would have been covered by such a policy had it been
maintained, immediately deposit into the Collection Account from its own funds
the amount not otherwise payable under such policy because of such deductible
to the extent that any such deductible exceeds the deductible limitation that
pertained to the related Mortgage Loan, or, in the absence of any such
deductible limitation, the deductible limitation which is consistent with
Accepted Master Servicing Practices or Accepted Special Servicing Practices,
as applicable.
(c) All of the hazard insurance policies required to be maintained
under subsection (a) of this Section shall contain a standard mortgagee clause
naming the Master Servicer (or Special Servicer with respect to REO Mortgage
Loans), as agent for the Trustee and its successors and assigns as the Person
to whom all payments made by the insurance carrier shall be made. The Master
Servicer (or the Special Servicer with respect to REO Mortgage Loans) shall
arrange for the application of all such insurance proceeds (i) to the
restoration or repair of the related Mortgaged Property, (ii) to prepay in
whole or in part the outstanding principal amount of the related Mortgage Note
or (iii) to be released to the related Mortgagor, as the case may be, in all
cases in accordance with the express requirements of the applicable Mortgage
Loan Documents. To the extent the applicable Mortgage Loan Documents require
the delivery of appraisals, engineer's reports, architect's disbursement
certificates or other documents or instruments before any such insurance
proceeds are applied, the Master Servicer shall obtain and verify the same and
any costs so incurred shall be deemed to be a Servicing Advance and shall be
reimbursed as provided in this Agreement.
(d) With respect to any insurance required to be maintained pursuant
to this Section 4.07, the Master Servicer shall remit to the Special Servicer
any unearned premiums with respect to premiums that were advanced by the
Special Servicer pursuant to Section 6.03(b). Amounts to be paid to the
Special Servicer pursuant to this clause (d) shall be paid upon receipt by the
Master Servicer of the refund of such unearned premium and of a certification
by the Special Servicer of such amount of unearned premium and of the amount
of such unreimbursed Servicing Advance.
Section 4.08 Enforcement of "Due-on-Sale" Clauses; Assumption
Agreements.
(a) To the extent any Mortgage Loan contains an enforceable
"due-on-sale" or "due-on-encumbrance" clause, in the event the Master Servicer
has knowledge of any sale or encumbrance in contravention of such clause, the
Master Servicer shall enforce or waive such clause in accordance with Accepted
Master Servicing Practices; provided, however, that prior to waiving any
"due-on-encumbrance" clause the Master Servicer shall (i) obtain the Directing
Certificateholder's consent in accordance with Section 4.16, (ii) obtain
written confirmation from S&P that none of the then-current rating or ratings
of all outstanding Classes of the Certificates would be qualified (if
applicable), downgraded or withdrawn by S&P as a result of
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such waiver, and (iii) if the related Mortgage Loan, together with any other
Mortgage Loans cross-collateralized therewith, or together with all other
Mortgage Loans with the same or an affiliated Mortgagor, is one of the ten
largest of the then outstanding Mortgage Loans, by Stated Principal Balance,
then the Master Servicer shall obtain written confirmation from Fitch stating
that none of the then-current rating or ratings of all outstanding Classes of
the Certificates would be downgraded or withdrawn by Fitch, as a result of
such waiver; provided, further, that any confirmation required by clause (ii)
or (iii) shall be at the related Mortgagor's expense, to the extent permitted
by the related Mortgage Loan Documents; provided, that only expenses in excess
thereof shall be a reimbursable Servicing Advance. If the Master Servicer
waives or is unable to enforce any such "due-on-sale" clause or if no
"due-on-sale" clause is applicable, the Master Servicer shall enter into an
assumption agreement with the Person to whom such property has been conveyed
or is proposed to be conveyed, pursuant to which such Person becomes liable
under the Mortgage Note and, to the extent permitted by applicable state Law
and the related Mortgage, the Mortgagor remains liable thereon. The Master
Servicer is also authorized to enter into a substitution of liability
agreement with such Person, pursuant to which the original Mortgagor is
released from liability and such Person is substituted as the Mortgagor and
becomes liable under the Mortgage Note; provided, however, that such
substitute Mortgagor must satisfy the requirements set forth in the related
Mortgage Loan Documents or the underwriting requirements customarily imposed
by prudent commercial mortgage lenders as a condition to approval of a
borrower on a new mortgage loan substantially similar to such Mortgage Loan.
(b) To the extent any Mortgage Loan contains a clause granting a
right of assumption to a qualified substitute Mortgagor upon the sale,
conveyance or transfer of the related Mortgaged Property, the Master Servicer
shall enter into an assumption agreement with such qualified substitute
Mortgagor, pursuant to which such substitute Mortgagor becomes liable under
the Mortgage Note. If any Person other than the Mortgagor has, pursuant to the
related Mortgage Loan Documents, undertaken to indemnify the mortgagee and, in
connection with an assumption of the type referred to in the preceding
sentence, the related Mortgage Loan Documents permit a substitution of such
third-party indemnitor by a qualified substitute indemnitor, the Master
Servicer shall enter into an assumption of liability agreement with such
qualified substitute indemnitor, pursuant to which such substitute indemnitor
becomes liable under the relevant indemnification obligations. The Master
Servicer is also authorized to enter into a substitution of liability
agreement with such substitute Mortgagor, pursuant to which the original
Mortgagor is released from liability and such substitute Mortgagor is
substituted as the Mortgagor and becomes liable under the Mortgage Note;
provided, however, that such substitute Mortgagor must satisfy the
requirements set forth in the related Mortgage Loan Documents or the
underwriting requirements customarily imposed by prudent commercial mortgage
lenders as a condition to approval of a borrower on a new mortgage loan
substantially similar to such Mortgage Loan.
(c) Prior to entering into any such assumption agreement, if the
aggregate Stated Principal Balance of the Mortgage Loans of the assuming
Mortgagor and its Affiliates and any other Mortgage Loans cross-collateralized
therewith is more than (a) $20,000,000 or (b) 5% of the current outstanding
Certificate Balance (as verified by the Trustee), then the Master Servicer
shall obtain (at the related Mortgagor's expense, to the extent permitted by
the related Mortgage Loan Documents; provided, that any expense in excess
thereof shall be a reimbursable Servicing
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Advance) written confirmation from S&P stating that none of the then-current
rating or ratings of all outstanding Classes of the Certificates would be
qualified (if applicable), downgraded or withdrawn by S&P, as a result
thereof. Prior to entering into any such assumption agreement, if the related
Mortgage Loan, together with any other Mortgage Loans cross-collateralized
therewith, or together with all other Mortgage Loans with the same or an
affiliated Mortgagor, is one of the ten largest of the then outstanding
Mortgage Loans, by Stated Principal Balance, then the Master Servicer shall
obtain (at the related Mortgagor's expense, to the extent permitted by the
related Mortgage Loan Documents; provided, that any expense in excess thereof
shall be a reimbursable Servicing Advance) written confirmation from Fitch
stating that none of the then-current rating or ratings of all outstanding
Classes of the Certificates would be downgraded or withdrawn by Fitch, as a
result thereof. The Master Servicer shall promptly deliver such confirmation
to the Trustee and the Directing Certificateholder. Neither the Master
Servicer nor the Special Servicer shall (to the extent that it is within their
control to prohibit such event) consent to the assumption and transfer of any
Mortgaged Property which secures a Cross Collateralized Loan unless all of the
Mortgaged Properties securing such group of Cross Collateralized Loans are
transferred simultaneously by the respective Mortgagor.
(d) The Master Servicer shall retain all fees collected for
processing and entering into an assumption or substitution of liability
agreement relating to non-Specially Serviced Mortgage Loans, subject to the
terms of any related subservicing agreement.
(e) In connection with any assumption under this Section 4.08, no
material term of the Mortgage Note (including, but not limited to, the
Mortgage Rate, the amount of the Monthly Payment, any interest rate floor or
cap applicable to the calculation of the Mortgage Rate and any other term
affecting the amount or timing of payment on the Mortgage Loan) may be
changed. The Master Servicer shall forward to the Custodian the original
substitution or assumption agreement and shall forward to the Trustee and the
Directing Certificateholder a copy of such substitution or assumption
agreement.
(f) Notwithstanding the foregoing or any other provision of this
Agreement, the Master Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any conveyance
by a Mortgagor of a Mortgaged Property or any assumption of a Mortgage Loan by
operation of Law that the Master Servicer in its reasonable judgment
determines it may be restricted by Law from preventing. The Master Servicer
shall deliver prompt written notice to the Trustee and the Directing
Certificateholder of any such determination or assumption.
(g) The Master Servicer shall notify each Rating Agency if it shall
have actual knowledge that such assumption results in any Mortgagor, or any
affiliate or principal thereof, representing ownership interest in more than
5% of the Mortgagors by outstanding principal balance of the Mortgage Loans.
Section 4.09 Review of Property Inspections, Operating Statements
and Rent Rolls.
(a) The Master Servicer shall inspect or cause to be inspected each
related Mortgaged Property at such times and in such manner as are consistent
with Accepted Master Servicing Practices and shall verify and deliver a copy
of a Property Inspection Report in
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substantially the form of Exhibit M to the Trustee upon request and to the
Directing Certificateholder quarterly; provided that (i) each Mortgaged
Property securing a Mortgage Loan with an outstanding principal balance in
excess of $2,000,000 or 2% of the current aggregate principal balance of all
Mortgage Loans shall be inspected and a Property Inspection Report shall be
delivered at least once a year and (ii) each other Mortgaged Property securing
a Mortgage Loan shall be inspected and a Property Inspection Report shall be
delivered at least once every two years; provided, however, that any Mortgaged
Property securing a Mortgage Loan which becomes a Specially Serviced Mortgage
Loan shall be inspected promptly by the Special Servicer after the Servicing
Transfer Event occurs and, so long as the related Mortgage Loan is a Specially
Serviced Mortgage Loan, annually thereafter. A copy of each Property
Inspection Report prepared by the Special Servicer shall be delivered by hard
copy or electronic means (as directed by the recipient) to the Master Servicer
and the Directing Certificateholder promptly, but in any event within 30 days
after such inspection. All reasonable costs and expenses of the Special
Servicer incurred in connection with its obligations under this Section
4.09(a) shall be offset by late fees collected in respect of the related
Mortgage Loans and, to the extent not offset by late fees, shall be an
Additional Trust Fund Expense.
(b) The Master Servicer shall, within thirty (30) Business Days of
receipt, verify any operating statements and rent rolls prepared by a
Mortgagor of a Mortgaged Property in accordance with the terms of the Mortgage
Loan for compliance with any covenants contained in the related Mortgage Loan
Documents. Within 105 calendar days after the end of each quarter for the
trailing or quarterly information received (or 180 calendar days after the end
of each year for annual information received), commencing in the quarter
ending on September 30, 2001 for current year trailing data and January 1,
2002 for annual, year end data, the Master Servicer shall deliver to the
Trustee, the Directing Certificateholder and each Rating Agency upon request
by electronic means the Operating Statement Analysis Reports and NOI
Worksheets for each Mortgaged Property, provided that the Master Servicer has
timely received (either directly or from a subservicer or the Special
Servicer) the related operating statements and rent rolls from the related
Mortgagor. The Special Servicer shall provide to the Master Servicer the
related data fields for, and hard copies of, operating statements and rent
rolls relating to Specially Serviced Mortgage Loans and REO Properties at
least thirty (30) days (or some other time as agreed by the Master Servicer
and the Special Servicer) prior to the applicable time period for the Master
Servicer's delivery of the Operating Statement Analysis Reports and the NOI
Worksheets as set forth in this Section 4.09(b).
Section 4.10 Reports of the Master Servicer and the Trustee.
(a) The Master Servicer shall prepare, or cause to be prepared, and
deliver to the Trustee (and the Special Servicer, if requested), in an
electronic format reasonably acceptable to the Trustee, consistent with
Accepted Master Servicing Practices and convertible to XXXXX format, not later
than (i) 12:00 noon New York City time on the second Business Day immediately
preceding each Distribution Date, a copy of the CMSA Loan Periodic Update
File, (ii) 12:00 noon New York City time on the second Business Day
immediately preceding each Distribution Date after October 1, 2001, all
remaining CMSA IRP Reports; provided, however, that any reports not prepared
by the Master Servicer shall only be delivered to the extent received;
provided, further, that supplemental reports (v) and (viii) in clause (b) of
the definition
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of CMSA IRP shall be delivered quarterly. Each such report shall be in respect
of the related Remittance Period on a Mortgage Loan-by-Mortgage Loan basis to
the extent applicable.
(b) The Master Servicer shall, upon the Trustee's reasonable request,
provide such other customary information relating to the Mortgage Loans as is
necessary for the Certificateholders to prepare their federal, state and local
income tax returns.
(c) The Master Servicer shall prepare and distribute (with copies to
each of the Special Servicer and the Directing Certificateholder) all
information statements relating to payments on the Mortgage Loans in
accordance with all applicable federal and state laws and regulations. Upon
prior written request of the Trustee, the Master Servicer shall prepare such
other reports as may be reasonably requested in writing by the Trustee or the
Rating Agencies (with copies to each of the Special Servicer and the Directing
Certificateholder). The Master Servicer shall be entitled to charge a
reasonable fee reflecting the internal and external costs to such Master
Servicer of preparing any such report and such fee shall be charged to the
Person making such a request to the Trustee (other than the Rating Agencies,
the Special Servicer and the Directing Certificateholder in which case such
expenses shall be an expense of the Trust Fund and paid as a Servicing
Advance).
(d) The Special Servicer shall notify the Master Servicer and the
Directing Certificateholder of the occurrence of a Required Appraisal Date or
a Collateral Value Adjustment within five (5) Business Days of its knowledge
or receipt of notice of the occurrence of any such event. The Master Servicer
shall notify the Depositor, the Directing Certificateholder and the Special
Servicer (if the Special Servicer has not provided the Master Servicer notice
pursuant to the preceding sentence) of the occurrence of a Required Appraisal
Date or a Collateral Value Adjustment within five (5) Business Days of its
knowledge or receipt of notice of the occurrence of any such event.
(e) The Master Servicer shall provide the reports and files through
electronic format or on its Website (except (i) for the CMSA Bond Level File
and the CMSA Collateral Summary File and (ii) that the Master Servicer shall
only be required to provide the CMSA Loan Setup File to the extent received
and (iii) that the Master Servicer shall only be required to provide reports
in electronic format or on its Website to the extent it prepares or receives
such reports in electronic format). The Trustee shall provide or make
available on its Website the CMSA Bond Level File and the CMSA Collateral
Summary File.
(f) The Master Servicer shall prepare and deliver the reports
required by this Section 4.10, within the time frames set forth herein,
notwithstanding that the Special Servicer has failed to prepare and deliver
any reports required to be prepared and delivered by it pursuant to Section
6.09; provided, however, that the Master Servicer shall have no obligation to
prepare and deliver any such reports of the Special Servicer.
(g) The Master Servicer and the Trustee, as applicable, shall prepare
and deliver, or make available on their respective Websites, to the Directing
Certificateholder, the reports and information described in Exhibit R, in the
forms and formats and within the time frames set forth therein.
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Section 4.11 Confirmation of Balloon Payment.
The Master Servicer shall send a letter by first class mail to each
related Mortgagor on a Balloon Mortgage Loan not earlier than twelve (12)
months and at least six (6) months prior to the related Maturity Date
reminding such Mortgagor of such Maturity Date and requesting that not later
than ninety (90) days prior to such Maturity Date such Mortgagor confirm in
writing that the payment due on such Maturity Date will be made on such date
and describe in reasonable detail any arrangements made or to be made with
regard to the payment of such Balloon Payment.
Section 4.12 Master Servicer Compensation.
The Master Servicer shall be entitled to a fee (the "Master Servicing
Fee"), with respect to each Mortgage Loan that shall be equal to the product
of (a) the related Master Servicing Fee Rate and (b) the Stated Principal
Balance of such Mortgage Loan as of the Due Date in the preceding calendar
month calculated for the same period respecting which any related interest
payment on each Mortgage Loan is calculated. The Master Servicing Fee is
payable solely from the interest portion of the Monthly Payment on the related
Mortgage Loan plus Liquidation Proceeds, Excess Insurance Proceeds, Excess
Condemnation Proceeds and REO Proceeds with respect to such Mortgage Loan, to
the extent permitted by Section 4.03(a)(ii) hereof. The Master Servicer shall
also be entitled to receive as part of its servicing compensation net
reinvestment income pursuant to Sections 4.02(b) and 4.06(b), and certain fees
described in clause (2) of Section 4.02(c) with respect to any Mortgage Loan
that is not a Specially Serviced Mortgage Loan (subject to 4.08(d) and except
for NSF check charges which may be retained by the Master Servicer for any
Mortgage Loan) and as otherwise permitted under this Agreement.
Notwithstanding anything herein to the contrary, Midland may at its
option assign or pledge to any third party or retain for itself the
Transferable Servicing Interest; provided, however, that in the event of any
resignation or termination of Midland as Master Servicer hereunder, all or any
portion of the Transferable Servicing Interest may be reduced by the Trustee
to the extent reasonably necessary (in the sole discretion of the Trustee) for
the Trustee to obtain a qualified successor Master Servicer (which successor
may include the Trustee) that meets the requirements of Section 3.10 and who
requires market rate servicing compensation that accrues at a per annum rate
in excess of the Minimum Master Servicing Fee Rate. The Master Servicer shall
pay the Transferable Servicing Interest to the holder of the Transferable
Servicing Interest (i.e., Midland or any such third party) at such time and to
the extent the Master Servicer is entitled to receive payment of its Master
Servicing Fees hereunder, notwithstanding any resignation or termination of
Midland hereunder.
Section 4.13 Adjustment of Master Servicer's Compensation.
Notwithstanding anything set forth in this Agreement, the Master
Servicer's compensation for the period ending on a Distribution Date shall be
reduced (but not below zero) by an amount equal to the lesser of (a) any
excess of any Prepayment Interest Shortfall over the sum of any Prepayment
Interest Excess and Prepayment Premiums then available and (b) the Master
Servicing Fee for such Distribution Date calculated using a Master Servicing
Fee Rate of 0.01% per annum and, if the Master Servicer has failed to enforce
or permitted any deviation
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from the requirements of the related Mortgage Loan Documents (without
obtaining the Directing Certificateholder's prior consent), any investment
income earned in respect of the related Principal Prepayment then available;
provided, however, that if the related Prepayment Interest Shortfall (x)
relates to any Specially Serviced Mortgage Loan, (y) is a result of the
application of any Condemnation Proceeds or Insurance Proceeds, or (z) is a
result of any requirement of law or administrative or court order, then in any
such case, any investment income earned in respect of the related Principal
Prepayment shall not be available to offset the related Prepayment Interest
Shortfall. The Master Servicer shall be entitled to retain on any Distribution
Date the lesser of (a) any amounts by which its Master Servicing Fee shall
have been reduced pursuant to the immediately preceding sentence on prior
Distribution Dates which have not been paid to the Master Servicer pursuant to
this sentence on prior Distribution Dates, and (b) the excess of (i) the sum
of any Prepayment Interest Excess and Prepayment Premiums for such
Distribution Date over (ii) any Prepayment Interest Shortfall for such
Distribution Date.
Section 4.14 Implementation of Operations and Maintenance Plans.
To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of the related Mortgage Loan
Documents, the Master Servicer shall use reasonable efforts to enforce any
such plans in accordance with the terms of the Mortgage Loan Documents.
Section 4.15 Dissemination of Information.
The Master Servicer may disseminate the information provided under
Section 7.03(a)
Section 4.16 Certain Modification, Waivers, Assumptions Consents
and Extensions.
(a) The Directing Certificateholder shall be entitled to advise the
Master Servicer with respect to the following actions of the Master Servicer,
and notwithstanding anything in any other Section of this Agreement to the
contrary, but in all cases subject to Section 4.16(b), the Master Servicer
will not be permitted to take any of the following actions unless and until it
has notified the Directing Certificateholder in writing and the Directing
Certificateholder has not objected in writing within ten (10) Business Days of
having been notified thereof in writing and having been provided with all
reasonably requested information with respect thereto (provided that if such
written objection has not been received by the Master Servicer within such ten
(10) Business Day period, then the Directing Certificateholder's approval will
be deemed to have been given): (i) agreeing to any modification, waiver, or
assumption, (ii) granting its consent to any action requiring its consent, in
either case, with respect to any Mortgage Loan it is required to service and
administer hereunder having a Stated Principal Balance equal to or greater
than $2,500,000, and (iii) extending the maturity of any Mortgage Loan it is
required to service and administer under this Agreement; provided that, in the
event that the Master Servicer in its reasonable judgment determines that
immediate action is necessary to protect the interests of the
Certificateholders (as a collective whole), the Master Servicer may take any
such action without waiting for the Directing Certificateholder's response.
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(b) Notwithstanding anything in this Agreement to the contrary, (i)
the Master Servicer shall not have any right or obligation to consult with or
to seek and/or obtain consent or approval from the Directing Certificateholder
prior to acting (and provisions of this Agreement requiring such shall be of
no effect) if any Directing Certificateholder resigns or is removed, during
the period following such resignation or removal, until a replacement is
selected and the Master Servicer is notified pursuant to this Agreement and
(ii) no advice, direction or objection from or by the Directing
Certificateholder, as contemplated by Section 4.16(a), may (and the Master
Servicer shall ignore and act without regard to any such advice, direction or
objection that the Master Servicer has determined, in its reasonable judgment,
would) (A) require or cause the Master Servicer to violate applicable law, the
terms of any Mortgage Loan, any other Section of this Agreement or any of the
REMIC Provisions, including the Master Servicer's obligation to act in
accordance with the Accepted Master Servicing Practices, (B) result in an
Adverse REMIC Event with respect to any REMIC, (C) expose the Trust, the
Depositor, the Underwriters, the Master Servicer, the Special Servicer or the
Trustee, or any of their respective Affiliates, officers, directors, members,
managers, employees or agents, to any material claim, suit or liability, or
(D) materially expand the scope of the Master Servicer's responsibilities
under this Agreement. Furthermore, the Master Servicer shall not be obligated
to obtain the approval of the Directing Certificateholder for any actions to
be taken by the Master Servicer with respect to any particular Mortgage Loan
if (i) the Master Servicer has, in accordance with Section 4.16(a), notified
the Directing Certificateholder in writing of the various actions that the
Master Servicer proposes to take and (ii) for thirty (30) days following the
first such notice, the Directing Certificateholder has objected to all of
those proposed actions and has failed to suggest or agree to any alternative
actions that the Master Servicer considers to be consistent with the Accepted
Master Servicing Practices.
(c) Notwithstanding anything in this Agreement to the contrary, the
Master Servicer shall not be required to obtain or request the consent of the
Directing Certificateholder in connection with any modification, waiver or
assumption, or granting its consent, with respect to (A) any routine leasing
activity at the related Mortgaged Property, (B) any waiver of a Mortgagor's
financial reporting obligations under the related Mortgage Loan Documents
(except such Mortgagor's obligation to provide quarterly and annual operating
statements), (C) approving annual operating budgets with respect to any
Mortgaged Property, and (D) providing or withholding any approval required in
connection with any right-of-way, easements or similar arrangement, and any
subordination of the related Mortgage Loan thereto.
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ARTICLE V
[RESERVED]
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ARTICLE VI
SPECIAL SERVICING
Section 6.01 The Special Servicer.
The Special Servicer, as independent contract servicer, shall,
notwithstanding any other provisions hereof, service and administer the
Specially Serviced Mortgage Loans and REO Property on behalf of and in the
best interests of and for the benefit of the Certificateholders in accordance
with this Agreement and Accepted Special Servicing Practices. In the event
that a Mortgage Loan becomes a Specially Serviced Mortgage Loan, subject to
the provisions contained in this Article VI, the Master Servicer shall
continue to collect all Monthly Payments called for under the terms and
provisions of the Mortgage Loan in accordance with Section 4.02, except as
otherwise directed by the Special Servicer in writing.
Section 6.02 Transfer to Special Servicing.
(a) The Master Servicer shall notify the Trustee, the Depositor, the
Special Servicer, the Directing Certificateholder and the Monitoring
Certificateholders as promptly as practicable by telephone and in an
electronic format reasonably acceptable to the Trustee after it becomes aware
of (i) any facts or circumstances that might result in any Mortgage Loan
becoming a Specially Serviced Mortgage Loan or (ii) the occurrence of a
Servicing Transfer Event. If applicable, such notification shall include a
discussion of all appropriate courses of action that might be employed to
prevent the Mortgage Loan in question from becoming a Specially Serviced
Mortgage Loan, shall identify any Cross Collateralized Loan that is
cross-collateralized with the Mortgage Loan in question and shall, to the
extent applicable, set forth the information substantially in the form of
Exhibit S hereto. The Master Servicer shall provide to the Trustee, the
Depositor, the Special Servicer and the Directing Certificateholder as
promptly as practicable after request any additional information reasonably
requested thereby with respect to such Mortgage Loan.
(b) Unless the Master Servicer and the Special Servicer with respect
to a Mortgage Loan are the same Person, not later than two (2) Business Days
after the occurrence of a Servicing Transfer Event, the Master Servicer shall
send a letter by first class mail in substantially the form of Exhibit T
hereto (with a copy to the Special Servicer) notifying the related Mortgagor
that the related Mortgage Loan has become a Specially Serviced Mortgage Loan
and instructing such Mortgagor to direct all future notices and communications
to the Special Servicer but to continue making Monthly Payments to the Master
Servicer unless otherwise directed by the Special Servicer in writing.
(c) Not later than five (5) Business Days after the occurrence of a
Servicing Transfer Event, the Master Servicer shall provide the Special
Servicer with copies of all information, documents and records (including
records stored electronically on computer tapes, magnetic disks and the like)
in its possession relating to each Mortgage Loan with respect to which notice
is required to be delivered pursuant to clause (a) above. The Master Servicer
and the Special Servicer shall take all other actions necessary or appropriate
to effect a transfer of servicing pursuant to this Section 6.02 or Section
6.12, including but not limited to the
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preparation, execution and delivery of any and all necessary or appropriate
documents and other instruments, and will cooperate fully with each other and
the Master Servicer in effecting such transfer as promptly as possible.
Servicing of a Mortgage Loan shall be automatically transferred to the Special
Servicer on the Servicing Transfer Date.
(d) Following the related Servicing Transfer Date and prior to the
restoration of the related Mortgage Loan pursuant to Section 6.12 to standard
servicing, the Master Servicer shall not have any further dealings or
communications with the related Mortgagor except as administrator of the
Collection Account and Escrow Account. The Master Servicer shall maintain
up-to-date information on each Mortgage Loan which becomes a Specially
Serviced Mortgage Loan in order to properly administer the Collection Account
and Escrow Account, to enable it to resume all servicing obligations with
respect to a Mortgage Loan which ceases to be a Specially Serviced Mortgage
Loan as promptly as possible pursuant to Section 6.12 and to provide any
reports required under Article IV hereof. The Special Servicer shall promptly
provide to the Master Servicer all information available to the Special
Servicer and not available to such Master Servicer necessary to maintain such
up-to-date information.
Section 6.03 Servicing of Specially Serviced Mortgage Loans.
(a) The Trustee shall notify the Special Servicer of the name and
address of each Directing Certificateholder within 10 days of its learning of
same. The Master Servicer shall notify the Directing Certificateholder of the
occurrence of such Servicing Transfer Event within two (2) Business Days.
(b) Subject to Sections 6.03(c) and 6.14 below, Accepted Special
Servicing Practices and the other terms of this Agreement, in servicing and
administering any Specially Serviced Mortgage Loan or REO Property, the
Special Servicer shall have full power and authority to do any and all things
in connection with such servicing and administration that it may deem in its
best judgment necessary or advisable including, without limitation, to execute
and deliver on behalf of the Trustee and the Certificateholders any and all
instruments of satisfaction or cancellation or of partial release or full
release or discharge and all other comparable instruments with respect to such
Specially Serviced Mortgage Loan or such REO Mortgage Loan or pursuant to
Accepted Special Servicing Practices to agree to any modification, assumption,
extension, waiver or amendment of any term and to defer, reduce or forgive
payment of interest and/or principal of any such Specially Serviced Mortgage
Loan provided, however, with respect to any such modification, assumption,
extension, waiver or amendment, the Special Servicer has determined in its
reasonable judgement that such modification, assumption, extension, waiver or
amendment is expected to increase the recovery value of the related Mortgage
Loan on a net present value basis. Notwithstanding the foregoing, the Special
Servicer shall not release, substitute, or add any Mortgaged Property, except
as otherwise provided in the related Mortgage Loan Documents, unless such
Special Servicer shall have obtained written confirmation from each Rating
Agency stating that upon such release, substitution or addition none of the
then-current rating or ratings of all outstanding Classes of the Certificates
would be qualified (if applicable), downgraded or withdrawn by each Rating
Agency as a result thereof. The Special Servicer may not extend the scheduled
maturity date of any Specially Serviced Mortgage Loan to a date later than
three years prior to the Rated Final Distribution Date provided that if such
Mortgage is secured by a leasehold interest, the related
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scheduled maturity date may not be extended to a date later than twenty years
prior to the expiration of the related ground lease; and provided, further,
that if such Mortgage Loan is a Balloon Mortgage Loan, the related scheduled
maturity date may not be extended to a date later than the amortization term
thereof absent the related Balloon Payment. Notwithstanding the foregoing, no
such extension may be effected unless the Special Servicer shall deliver to
the Trustee an Officer's Certificate certifying that in the judgment of such
Special Servicer such extension is expected to increase the recovery value of
the related Mortgage Loan on a net present value basis; provided that such
certificate shall not represent any assurances that any such recovery will
actually be realized. The expenses incurred in connection with the preparation
of certain such instruments shall be reimbursed to the Special Servicer
pursuant to Section 3.15. The Special Servicer may from time to time request
any powers of attorney and other documents necessary or appropriate to enable
the Special Servicer to carry out its servicing and administrative duties
hereunder. If it shall make such request, the Special Servicer shall prepare
for signature by the Trustee, and the Trustee shall sign any such powers of
attorney or other documents necessary or appropriate to carry out such duties
hereunder. In addition to the duties and obligations set forth in this Article
VI, as to any Specially Serviced Mortgage Loan the Special Servicer shall
assume the rights and obligations of the Master Servicer with respect to a
Mortgage Loan set forth in Sections 4.08 and 4.09(b) (but not any liabilities
incurred by the Master Servicer prior to the related Servicing Transfer Date)
with respect to any Specially Serviced Mortgage Loan and any REO Properties,
and Section 4.07 with respect to any REO Properties and, to the extent it
receives a certificate from a Master Servicer that any amount is due in
connection with maintaining any Insurance Policy pursuant to Section 4.07 with
respect to any such Specially Serviced Mortgage Loan, with respect to paying
or collecting any such amount. Any insurance required to be maintained by the
Special Servicer with respect to REO Properties pursuant to this Section 6.03
and Section 4.07 shall be maintained with Qualified Insurers.
Except for a duty or obligation of the Master Servicer not assumed by
the Special Servicer pursuant to Section 6.02(d), the Master Servicer shall
not have any such duty or obligation with respect to a Mortgage Loan unless
and until such Mortgage Loan ceases to be a Specially Serviced Mortgage Loan.
(c) No later than thirty (30) days after a Servicing Transfer Date
for a Mortgage Loan, the Special Servicer shall deliver to the Trustee, the
Depositor, the Master Servicer, each Rating Agency and the Directing
Certificateholder a report (the "Asset Strategy Report") with respect to such
Mortgage Loan and the related Mortgaged Property. Such Asset Strategy Report
shall set forth the following information to the extent reasonably
determinable:
(i) summary of the status of such Specially Serviced
Mortgage Loan and any negotiations with the related
Mortgagor;
(ii) consideration of alternatives to the exercise of
remedies (such as forbearance relief, modification of the
terms and conditions of such Mortgage Loan, disposition of
the Specially Serviced Mortgage Loan or the related
Mortgaged Property and application of the proceeds of such
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disposition to the outstanding principal balance of such
Mortgage Loan and interest thereon, or abandonment of the
related Mortgaged Property);
(iii) a discussion of the probable time frames and
estimated amount of any related Servicing Advances
applicable to each of the alternatives referred to above;
(iv) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer,
consistent with the Accepted Special Servicing Practices,
that are applicable to the exercise of remedies as
aforesaid and to the enforcement of any related guaranties
or other collateral for the related Mortgage Loan and a
recommendation as to whether outside legal counsel should
be retained;
(v) estimated budgets for any operating or capital funds
expected to be required for the related Mortgaged
Property;
(vi) the most current rent roll available for and any
strategy for the leasing or releasing of the related
Mortgaged Property;
(vii) the Special Servicer's analysis and recommendations
(which will include a discussion of alternative courses of
action and a comparison of the probable benefits and
detriments of each alternative course of action) on how
such Specially Serviced Mortgage Loan might be returned to
performing status and returned to the Master Servicer for
regular servicing under Article IV hereof or otherwise
realized upon; and
(viii) such other information as the Special Servicer
deems relevant in light of the Accepted Special Servicing
Practices.
If within ten (10) Business Days of receiving an Asset Strategy
Report, the Directing Certificateholder does not disapprove such Asset
Strategy Report in writing, the Special Servicer shall implement the
recommended action as outlined in such Asset Strategy Report; provided,
however, that any such action is not contrary to applicable Law, the terms of
the applicable Mortgage Loan Documents or Accepted Special Servicing
Practices. If the Directing Certificateholder disapproves such Asset Strategy
Report, the Special Servicer will revise such Asset Strategy Report and
deliver to the Trustee, each Directing Certificateholder, the Master Servicer
and each Rating Agency a new Asset Strategy Report as soon as practicable. The
Special Servicer shall revise such Asset Strategy Report as described above in
this Section 6.03(c) until the Directing Certificateholder shall fail to
disapprove such revised Asset
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Strategy Report in writing within ten (10) Business Days of receiving such
revised Asset Strategy Report; provided, however, the Special Servicer shall
implement the last submitted Asset Strategy Report if 60 days have elapsed
since the Directing Certificateholder's receipt of the Asset Strategy Report.
The Special Servicer may, from time to time, modify any Asset Strategy Report
it has previously delivered and implement such report, provided such report
shall have been prepared, reviewed and not rejected pursuant to the terms of
this Section. Notwithstanding the foregoing, the Special Servicer (i) may,
following the occurrence of an extraordinary event with respect to the related
Mortgaged Property, take any action set forth in such Asset Strategy Report
before the expiration of a ten (10) Business Day period if the Special
Servicer has reasonably determined that failure to take such action would
materially and adversely affect the interest of the Certificateholders and it
has made a reasonable effort to contact the Directing Certificateholder and
(ii) in any case, shall determine whether such disapproval is not in the best
interest of all the Certificateholders pursuant to Accepted Special Servicing
Practices. Upon making the determination set forth in clause (ii) above, the
Special Servicer shall either implement the Asset Strategy Report or, if it
determines that such disapproval is not in the best interest of all the
Certificateholders, notify the Trustee of such rejection and deliver to the
Trustee a proposed notice to Certificateholders which shall include the Asset
Strategy Report, and the Trustee shall send such notice to all
Certificateholders (or, to the extent known to the Trustee, Certificate
Owners). If the majority of such Certificateholders (including Certificate
Owners), as determined by Certificate Balance, fail within five (5) days of
the Trustee's sending such notice to reject such Asset Strategy Report, the
Special Servicer shall implement the same. If the Asset Strategy Report is
rejected by the Certificateholders, the Special Servicer shall revise such
Asset Strategy Report as described above in this Section 6.03(c). The Trustee
shall be entitled to reimbursement from the Trust Fund for the reasonable
expenses of providing such notices.
(d) The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with Accepted Special Servicing Practices and the related Asset
Strategy Report. The Special Servicer shall not take any action inconsistent
with the related Asset Strategy Report unless required pursuant to this
Section 6.03 or Accepted Special Servicing Practices.
(e) Upon request of any Certificateholder (or any Certificate Owner,
if applicable, which shall have provided the Trustee with a certificate, using
the form attached as Exhibit AA, which form is available on, and may be
submitted through, the Trustee's Website located at "xxx.xxxxxxx.xxx/xxxx", of
its interest in a Certificate pursuant to Section 11.04), or Rating Agency,
the Trustee shall mail, at the expense of the requesting party, to the address
specified in such request a copy of the most current Asset Strategy Report for
any Specially Serviced Mortgage Loan or REO Property, unless it is notified
that the same is prohibited by applicable law or the related Mortgage Loan
documents and only upon execution of a confidentiality agreement in the form
of Exhibit K by the requesting party; provided, however, that no Asset
Strategy Report shall be delivered to the Mortgagor on the related Specially
Serviced Mortgage Loan, an affiliate thereof or a Person acting on behalf of
the Mortgagor.
(f) The Special Servicer shall not acquire any personal property on
behalf of the Trust Fund pursuant to this Agreement unless either:
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(i) such personal property is incident to real property
(within the meaning of Section 856(e)(1) of the Code) so
acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion
of Counsel to the effect that the holding of such personal
property by the Trust Fund will not cause the imposition
of a tax on the Trust Fund under the REMIC Provisions or
cause the Trust Fund to fail to qualify as a REMIC at any
time that any Certificate is outstanding.
Section 6.04 Management of REO Property.
(a) The Special Servicer, on behalf of the Trust Fund, shall use
reasonable efforts consistent with Accepted Special Servicing Practices to
sell any REO Property not later then the end of the third calendar year
following the year of acquisition of such REO Property for purposes of Section
860G(a)(8) of the Code, unless (i) the Internal Revenue Service grants an
extension of time to sell such REO Property or (ii) the Special Servicer
obtains for the Trustee (which shall be an expense of the Trust) an Opinion of
Counsel, addressed to the Trustee, and the Master Servicer, to the effect that
the holding by the Trust Fund of such REO Property subsequent to the third
anniversary of such acquisition will not result in the imposition of taxes on
"prohibited transactions" of the Trust Fund as defined in Section 860F of the
Code or cause the Trust Fund to fail to qualify as a REMIC at any time that
any Certificates are outstanding. Subject to Section 6.04(e), the Special
Servicer shall manage, conserve, protect and operate each REO Property for the
Certificateholders 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 or
result in the receipt by the Trust Fund of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or any "net
income from foreclosure property" which is subject to taxation under the REMIC
Provisions.
(b) Subject to clause (e) below, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend
any new lease with respect to any REO Property, if the new
lease by its terms will give rise to any income that does
not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any
new lease other than amounts that will constitute Rents
from Real Property;
(iii) authorize or permit any construction on any REO
Property, other than the completion of a building or other
improvement thereon, and then only if more than ten
percent of the construction of such building or other
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improvement was completed before default on the related
Mortgage Loan became imminent, all within the meaning of
Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person (other
than an Independent Contractor) to Directly Operate, any
REO Property on any date more than 90 days after its
Acquisition Date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel, at the 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 at any time that it is
held by the Trust Fund, in which case the Special Servicer may take such
actions as are specified in such Opinion of Counsel.
(c) Any REO Property acquired by the Special Servicer hereunder shall
be acquired in the name of the Trustee or its nominee for the benefit of the
Certificateholders.
(d) The Special Servicer shall, prior to the acquisition of title to
any Mortgaged Property, review the operations of such property and determine
the character of the income that the Trust Fund would realize if the Trust
Fund acquired title to such Mortgaged Property. The Special Servicer shall
undertake this analysis with a view to retaining the status of the REO
Property as foreclosure property under the REMIC provisions while maximizing
the net after-tax REO Proceeds received without materially adversely affecting
the Special Servicer's ability to sell such REO Property.
(e) If the Special Servicer determines, in its good faith and
reasonable judgment, that there are no other commercially feasible means of
operating such Mortgaged Property as REO Property without the Trust Fund
potentially or actually incurring an REO Tax, it may Directly Operate the
Mortgaged Property; provided, however, that the Special Servicer shall have
prepared and delivered to the Trustee a written proposed plan regarding the
plan of operations, the estimated income (and character thereof) derived
therefrom, the estimated amount of taxes payable on such income and such other
information as is necessary to make a reasoned judgment as to whether the REO
Property will remain a foreclosure property and whether such plan is likely to
maximize the net after tax REO income to the Trust Fund. The Special Servicer
shall avoid subjecting the income from such Mortgaged Property to tax as
either "net income from foreclosure property" or a "prohibited transaction"
within the meaning of the REMIC Provisions (an "REO Tax") to the maximum
extent possible.
Neither the Special Servicer nor the Trustee shall be liable
to the Certificateholders, the Trust Fund or the other parties to this
Agreement or each other for errors in judgment made in good faith in the
exercise of their discretion while performing their respective
responsibilities under this Section.
Section 6.05 Sale of Defaulted Mortgage Loans and REO Property.
(a) (i) Within thirty (30) days after the Servicing Transfer Date
with respect to any Defaulted Mortgage Loan, the Special Servicer shall
determine the fair value of such Defaulted Mortgage Loan in accordance
with Accepted Special Servicing Practices;
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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 or Appraisal Estimate, as
applicable, with respect to the related Mortgaged Property, the Special
Servicer shall make its fair value determination as soon as reasonably
practicable (but in any event within thirty (30) days) after its receipt
of such new appraisal or Appraisal Estimate, as applicable. The Special
Servicer will, from time to time, adjust its fair value determination
based upon changed circumstances, new information and other relevant
factors, in each instance in accordance with Accepted Special Servicing
Practices. The Special Servicer shall notify the Trustee, the Master
Servicer and the Monitoring Certificateholder that owns the largest
Certificate Balance of the Monitoring Class (the "Monitoring Class Option
Holder") promptly upon its fair value determination and any adjustment
thereto. The Special Servicer shall also deliver to the Master Servicer
and the Monitoring Class Option Holder the most recent appraisal or
Appraisal Estimate, as applicable, of the related Mortgaged Property then
in the Special Servicer's possession, together with such other
third-party reports and other information then in the Special Servicer's
possession that the Special Servicer reasonably believes to be relevant
to the fair value determination with respect to such Mortgage Loan (such
materials are, collectively, the "Determination Information"). The
Special Servicer shall also deliver the Determination Information to the
Trustee if the Master Servicer will not be determining whether the Option
Price represents fair value for the Defaulted Mortgage Loan, pursuant to
the penultimate paragraph of Section 6.05(a)(iv).
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period
and amount of the delinquency on such Mortgage Loan, the occupancy level
and physical condition of the related Mortgaged Property, the state of
the local economy in the area where the Mortgaged Property is located,
and the time and expense associated with a purchaser's foreclosing on the
related Mortgaged Property. In addition, the Special Servicer shall refer
to the Determination Information and all other relevant information
obtained by it or otherwise contained in the Mortgage Loan 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 or Appraisal Estimate, as applicable. Furthermore, the Special
Servicer shall consider all available objective third-party information
obtained from generally available sources, as well as information
obtained from vendors providing real estate services to the Special
Servicer, concerning the market for distressed real estate loans and the
real estate market for the subject property type in the area where the
related Mortgaged Property is located. The Special Servicer may
conclusively rely on the opinion and reports of Independent third parties
in making such determination.
(ii) At the time a Mortgage Loan becomes a Defaulted Mortgage Loan,
the Special Servicer and the Monitoring Class Option Holder (each,
together with their
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assignees, an "Option Holder") will have an assignable option (the
"Purchase Option") to purchase such Defaulted Mortgage Loan from the
Trust Fund at a price (the "Option Price") equal to (A) if the Special
Servicer has not yet determined the fair value of such Defaulted Mortgage
Loan, the sum of (1) the Stated Principal Balance thereof, together with
all accrued and unpaid interest thereon at the Mortgage Rate, (2) any
related Prepayment Premium then payable, to the extent the Special
Servicer or the Special Servicer's assignee is identified as the Person
that will acquire the related Mortgage Loan, (3) all related Advances for
which the Trust Fund or the related Servicer has not been reimbursed,
together with all accrued and unpaid interest thereon at the Advance
Rate, and (4) all accrued Basic Special Servicing Fees and Additional
Trust Fund Expenses allocable to such Defaulted Mortgage Loan whether
recovered or unrecovered from the related Mortgagor or (B) if the Special
Servicer has determined the fair value of such Defaulted Mortgage Loan
pursuant to clause (i) above, an amount at least equal to such fair
value. Notwithstanding the foregoing, for a period of sixty (60) days
after it receives notice of the Special Servicer's fair value
determination (the "Monitoring Certificateholder's Option Period"), only
the Purchase Option held by the Monitoring Class Option Holder may be
exercised.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party
at any time after the related Mortgage Loan becomes a Defaulted Mortgage
Loan. The transferor of any Purchase Option shall notify the Trustee and
the 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.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once
the related Defaulted Mortgage Loan is no longer a Defaulted Mortgage
Loan; provided, however, that if such Mortgage Loan subsequently becomes
a Defaulted Mortgage Loan, the related Purchase Option shall again be
exercisable, (B) upon the acquisition, by or on behalf of the Trust Fund,
of title to the related Mortgaged Property through foreclosure or deed in
lieu of foreclosure, (C) upon the modification or pay-off, in full or at
a discount, of such Defaulted Mortgage Loan in connection with a workout,
or (D) subject to the Master Servicer's determination set forth in clause
(iv) below, upon another Option Holder's exercise of its Purchase Option
with respect to the related Mortgage Loan becoming effective pursuant to
clause (iii) below.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Monitoring Certificateholder's Option Period, each
Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Master Servicer and the Trustee written notice thereof (the "Purchase
Option Notice"), in the form of Exhibit Q, which notice shall identify
the Person that, on its own or through an Affiliate, will acquire the
related Mortgage Loan upon closing and shall specify a cash exercise
price at least equal to the Option Price. The Purchase Option Notice
shall be delivered in the manner specified in Section 13.05. Immediately
upon receipt of such Purchase Option Notice, the Master Servicer shall
notify the
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remaining Option Holders that a Purchase Option has been exercised.
Within ten (10) days thereafter, each remaining Option Holder may submit
to the Master Servicer a Purchase Option Notice for the related Defaulted
Mortgage Loan. Upon the expiration of such ten (10) day period, or such
sooner time as all remaining Option Holders have submitted Purchase
Option Notices, the Master Servicer shall notify the Option Holder whose
Purchase Option Notice included the highest exercise price that the
exercise of its Purchase Option is effective. The Master Servicer shall
also notify the Trustee of such effective exercise. In the event that
more than one Option Holder exercises its Purchase Option at the same
price, the Purchase Option Notice first received by the Master Servicer
shall be effective. The exercise of any Purchase Option pursuant to this
clause (iii) shall be irrevocable.
(iv) If the Special Servicer or any Monitoring Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage
Loan, and the Option Price is based upon the Special Servicer's fair
value determination, the Master Servicer shall determine as soon as
reasonably practicable (and, in any event, within thirty (30) days) after
the Master Servicer has received the written notice and the Determination
Information to be provided to Master Servicer by Special Servicer under
Section 6.05(a)(i), whether the Option Price represents fair value for
the Defaulted Mortgage Loan; provided that, if the Special Servicer is
then in the process of obtaining a new appraisal or Appraisal Estimate,
as applicable, with respect to the related Mortgaged Property, then 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 thirty (30) days) after the Master Servicer's receipt of such new
appraisal or Appraisal Estimate, as applicable. Such fair value
determination shall be made in accordance with Accepted Master Servicing
Practices. In determining the fair value of any Defaulted Mortgage Loan,
the Master Servicer shall take into account, among other factors, the
period and amount of the delinquency on such Mortgage Loan, the occupancy
level and physical condition of the related Mortgaged Property, the state
of the local economy in the area where the Mortgaged Property is located,
and the time and expense associated with a purchaser's foreclosing on the
related Mortgaged Property. In addition, the Master Servicer shall refer
to the Determination Information and all other relevant information
delivered to it by the Special Servicer or otherwise contained in the
Mortgage Loan File; provided that the Master Servicer shall take account
of any change in circumstances regarding the related Mortgaged Property
known to the Master Servicer that has occurred subsequent to, and that
would, in the Master Servicer's reasonable judgment, materially affect
the value of the related Mortgaged Property reflected in, such appraisal.
Furthermore, the Master Servicer shall consider all available objective
third-party information obtained from generally available sources, as
well as information obtained from vendors providing real estate services
to the Master 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 Master Servicer
may conclusively rely on the opinion and reports of Independent third
parties in making such determination. The Master Servicer shall be
entitled to receive out of the Collection Account as additional
compensation a $2,500 fee for each determination made in accordance with
this clause (iv). The reasonable cost of all third party
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consultants and related reports, including but not limited to appraisals,
inspection reports and broker opinions of value, reasonably incurred by
the Master Servicer pursuant to this Section 6.06(a)(iv) shall
constitute, and be reimbursable as, Servicing Advances; provided that the
Master Servicer may rely on the most current appraisal or Appraisal
Estimate, as the case may be, and Property Inspection Report obtained for
the related Mortgaged Property pursuant to this Agreement. The other
parties to this Agreement shall cooperate with all reasonable requests
for information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Monitoring Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage
Loan, and the Option Price is based upon the Special Servicer's fair
value determination, and the Master Servicer and the Special Servicer are
Affiliates, the Trustee, subject to the Directing Certificateholder's
reasonable prior written consent, which consent shall not be unreasonably
withheld, shall designate an Independent third party, independent of the
Directing Certificateholder, to determine whether the Option Price
represents fair value for the Defaulted Mortgage Loan, in the manner and
within the time set forth in the first paragraph of this clause (iv). In
the event that the Trustee is called upon to designate such a third party
to make such determination, the Trustee will not assume any
responsibility for such third party's determination, which determination
the Trustee shall be entitled to conclusively rely upon. The Trustee may
pay such third party a fee of up to $2,500 for each determination made
pursuant to this paragraph. The reasonable costs of all appraisals,
inspection reports and broker opinions of value, reasonably incurred by
the Trustee or any such third party pursuant to this paragraph shall be
advanced by the Master Servicer and shall constitute, and be reimbursable
as, Servicing Advances. In connection with the Trustee's designating an
Independent third party, the Special Servicer shall deliver to the
Trustee for such Independent third party's use the Determination
Information.
In the event the Master Servicer or any designated third party, as
applicable, determines that the Option Price is less than the fair
value of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon
in making such determination, to the Special Servicer, who may then
adjust its fair value determination and, consequently, the Option Price,
pursuant to Section 6.05(a)(i). The Special Servicer shall promptly
provide written notice of any adjustment of the Option Price to the
Option Holder whose Purchase Option is declared effective pursuant to
clause (iii) above, whereupon such Option Holder shall have three (3)
Business Days to (i) accept the Option Price, as adjusted, and proceed in
accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to
close the purchase of the Defaulted Mortgage Loan. Upon notice from such
Option Holder, or the Special Servicer, that such Option Holder
rejects the Option Price as adjusted, the Master Servicer and the Trustee
shall provide the notices described in the second paragraph of clause (v)
below and thereafter any Option Holder may then exercise its purchase
option in accordance with Section 6.05(a), at the Option Price as
adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase
price specified in its Purchase Option Notice to the Master Servicer
within ten (10) Business Days of its receipt of the Master Servicer's
notice confirming that the exercise of its Purchase Option is effective.
Upon receipt of an Officer's Certificate from the Master Servicer
specifying the date for closing the purchase of the related Defaulted
Mortgage Loan, and the purchase price to be paid therefor, the Trustee
shall deliver at such closing for release to or at the direction of such
Option Holder, the related Mortgage Loan File, and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as shall be provided to it by such Option Holder and are
reasonably necessary to vest in the purchaser or any designee thereof the
ownership of such Mortgage Loan (subject to any
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rights of any Initial Subservicer to primary service (or to perform
select servicing duties with respect to) such Mortgage Loan). In
connection with any such purchase by any Person other than it, the
Special Servicer shall deliver the related Mortgage Loan File to or at
the direction of the purchaser. In any case, the Master Servicer shall
deposit the purchase price into the Collection Account within one (1)
Business Day following the closing of the sale of the related Defaulted
Mortgage Loan.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's
failure to remit the purchase price specified in its Purchase Option
Notice pursuant to this clause (v). Thereafter, the Trustee shall notify
each Option Holder of such failure and any Option Holder may then
exercise its purchase option in accordance with this Section 6.05(a).
(vi) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised, the Special Servicer shall pursue
such other resolution strategies with respect to such Defaulted Mortgage
Loan, including, without limitation, workout and foreclosure, as the
Special Servicer may deem appropriate, consistent with the Asset Strategy
Report and Accepted Special Servicing Practices; provided, however, the
Special Servicer shall not sell any Defaulted Mortgage Loan (other than
in connection with exercise of a related Purchase Option).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor). The Special Servicer may also offer to sell to
any Person any REO Property, if and when the Special Servicer determines,
consistent with Accepted Special Servicing Practices, that such a sale
would be in the best economic interests of the Trust Fund. The Special
Servicer shall give the Trustee, the Master Servicer and the Directing
Certificateholder not less than five (5) Business Days' prior written
notice of the Purchase Price and its intention to (i) purchase any REO
Property at the Purchase Price therefor or (ii) sell any REO Property, in
which case the Special Servicer shall accept the highest offer received
from any Person for any REO Property in an amount at least equal to the
Purchase Price therefor. To the extent permitted by applicable law, and
subject to Accepted Special Servicing Practice, the Master Servicer, an
Affiliate of the Master Servicer, the Special Servicer or an Affiliate of
the Special Servicer, or an employee of either of them may act as broker
in connection with the sale of any REO Property and may retain from the
proceeds of such sale a brokerage commission that does not exceed the
commission that would have been earned by an independent broker pursuant
to a brokerage agreement entered into at arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the
Special Servicer to be a fair price for such REO Property, if the highest
bidder is a Person other than an Interested Person, or if such price is
determined to be such a price by the Trustee, if the highest bidder is an
Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its
Affiliates may make an offer for or purchase any REO Property pursuant
hereto.
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The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with Accepted Special
Servicing Practices, that rejection of such offer would be in the best
interests of the Certificateholders. In addition, the Special Servicer
may accept a lower offer if it determines, in accordance with the
servicing standard stated in Section 6.01, that acceptance of such offer
would be in the best interests of the Certificateholders (for example, if
the prospective buyer making the lower offer is more likely to perform
its obligations, or the terms offered by the prospective buyer making the
lower offer are more favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any REO Property, the Trustee and the Special
Servicer shall obtain and may conclusively rely on the opinion of an
Independent appraiser or other Independent expert in real estate matters
retained by the Trustee or the Special Servicer, as applicable, at the
expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition of
such REO Property, the state of the local economy and the Trust Fund's
obligation to comply with REMIC Provisions.
(ii) Subject to Accepted Special Servicing Practices, the Special
Servicer shall act on behalf of the Trust Fund in negotiating and taking
any other action necessary or appropriate in connection with the sale of
any REO Property, including the collection of all amounts payable in
connection therewith. A sale of any REO Property shall be without
recourse to, or representation or warranty by, the Trustee, the
Depositor, any Servicer, or the Trust Fund (except that any contract of
sale and assignment and conveyance documents may contain customary
warranties of title, so long as the only recourse for breach thereof is
to the Trust Fund) and, if consummated in accordance with the terms of
this Agreement, none of the Servicers, the Depositor nor the Trustee
shall have any liability to the Trust Fund or any Certificateholder with
respect to the purchase price therefor accepted by the Special Servicer
or the Trustee.
(iii) REO Proceeds shall be remitted within one Business Day of its
receipt by the Special Servicer to the Master Servicer for deposit into
the Collection Account.
Section 6.06 REO Account; Collection of REO Proceeds.
(a) The Special Servicer shall establish or cause to be established,
and hereby agrees to maintain or cause to be maintained for the duration of
this Agreement for each REO Mortgage Loan, an REO Account into which all
related REO Proceeds shall be deposited as and when received. The Special
Servicer's REO Account shall be an Eligible Account.
(b) All funds deposited by the Special Servicer in any REO Account
maintained hereunder shall be held for the benefit of the Certificateholders
until disbursed or withdrawn in accordance herewith. Funds in such REO Account
shall not be commingled with any other moneys. The Special Servicer shall,
within five (5) Business Days of the establishment thereof,
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notify the Master Servicer and the Trustee in writing of the location and the
account number of the REO Account established by the Special Servicer for the
Mortgage Loans and shall give the Trustee and the Master Servicer written
notice of any change of such location or account number on or prior to the
date of such change.
(c) Funds in an REO Account may be invested by, at the risk of, and
for the benefit of, the Special Servicer in Permitted Investments which shall
not be sold or disposed of prior to maturity. All such Permitted Investments
shall be registered in the name of the Special Servicer (in its capacity as
such and for the benefit of the Certificateholders) or its nominee. All income
therefrom may be retained by the Special Servicer as additional servicing
compensation. In addition, the Special Servicer shall deposit on each
Determination Date into such REO Account out of its own funds an amount
representing any net losses realized on the Permitted Investments with respect
to funds in such REO Account for such Remittance Period.
(d) The Special Servicer shall deposit or cause to be deposited any
REO Proceeds into the applicable REO Account within one Business Day after
receipt.
(e) Except as expressly permitted or required hereunder, the Special
Servicer shall not sell, transfer or assign to any Person any interest
(including any security interest) in amounts credited or to be credited to any
REO Account or take any action towards that end, and shall maintain such
amounts free of all liens, claims and encumbrances of any nature.
Section 6.07 Remittance to Master Servicer of Non-REO Proceeds.
Any collections received by the Special Servicer in respect of any
Mortgage Loan, other than REO Proceeds, shall be remitted to the Master
Servicer within one Business Day of receipt for deposit into the Collection
Account pursuant to Section 4.02.
Section 6.08 Remittances to Master Servicer from the REO Account.
On or prior to 1:00 p.m., New York time, on the Determination Date,
the Special Servicer shall withdraw from each related REO Account and remit to
the Master Servicer, by wire transfer of immediately available funds to the
Collection Account, all amounts in such REO Account net of any Property
Protection Expenses or Property Improvements Expenses incurred or reasonably
expected by the Special Servicer to be incurred during the succeeding three
months.
Section 6.09 Specially Serviced Mortgage Loan Status Reports, REO Status
Reports and Other Reports.
(a) The Special Servicer shall prepare, or cause to be prepared, and
deliver to the Master Servicer, for delivery, separately or as part of the
Master Servicer's reports, to the Directing Certificateholder, the Trustee
and, if requested, each Rating Agency, in electronic format reasonably
acceptable to the Master Servicer and the Trustee and consistent with Accepted
Special Servicing Practices not later than 12:00 noon, New York City time, the
third (3rd) Business Day immediately preceding each Distribution Date, a copy
of all data fields and reports needed to produce the CMSA IRP (excluding the
CMSA Loan Set-up File, the CMSA Servicer Watch List, the CMSA Bond Level File
and CMSA Collateral Summary File) for the
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preceding Remittance Period, with respect to each Specially Serviced Mortgage
Loan and REO Mortgage Loan, respectively. In addition, upon the occurrence of
a Collateral Value Adjustment or Realized Loss resulting from a Collateral
Value Adjustment Event or Liquidation Event, the Special Servicer, in
consultation with the Directing Certificateholder, shall prepare, or cause to
be prepared, and deliver to the Master Servicer, for delivery to the Trustee,
the Directing Certificateholder and each Rating Agency, via facsimile (with a
hard copy sent on the same day by first-class mail or in electronic format
reasonably acceptable to the Master Servicer and consistent with Accepted
Special Servicing Practices) not later than the Determination Date immediately
preceding each Distribution Date, an Officers' Certificate setting forth (i)
the event which gave rise to such Collateral Value Adjustment or Realized Loss
and (ii) the amount of such Collateral Value Adjustment or Realized Loss. The
Master Servicer will verify the accuracy of the mathematical computation of
the Collateral Value Adjustment by the Special Servicer and that the amounts
used therein are consistent with the Master Servicer's records.
(b) Within ten (10) Business Days of receipt, the Special Servicer
shall deliver to the Master Servicer a copy of the bank statement for the
prior calendar month related to each REO Account and an REO Account Report
substantially in the form of Exhibit Z hereto and a report of any other funds
or accounts established and maintained by the Special Servicer under this
Agreement as of the Business Day preceding the date of such report, showing
for the period from the immediately preceding calendar month (or since the
related Servicing Transfer Date, in the case of the first of such reports),
the aggregate of deposits into and withdrawals from such funds or accounts in
accordance with this Agreement.
(c) Within sixty (60) days following the end of each calendar year,
or upon the Trustee's reasonable request, the Special Servicer shall prepare,
or cause to be prepared, and deliver to the Master Servicer such information
with respect to each Specially Serviced Mortgage Loan and each REO Mortgage
Loan as the Special Servicer deems necessary or desirable for each
Certificateholder to prepare its federal, state and local income tax returns.
(d) If the Special Servicer receives notice from the Master Servicer
of any inconsistencies in the reports provided by the Special Servicer
pursuant to Section 6.09, the Special Servicer shall initiate discussions not
later than the following Business Day with the Master Servicer to reconcile
their records. (e) Upon prior written request of the Master Servicer, the
Directing Certificateholder, the Trustee, a Rating Agency or the Depositor,
the Special Servicer shall prepare such other reasonable reports as may be
requested in writing thereby. The Special Servicer shall be entitled to charge
a reasonable fee reflecting the internal and external costs to the Special
Servicer of preparing such other reports and such fee shall be reimbursable to
the Special Servicer by the Person requesting such report (other than the
Rating Agencies, in which case such expenses shall be an expense of the Trust
Fund and paid as a Servicing Advance.)
Section 6.10 Special Servicer Advances.
The Special Servicer shall not be required to make any Servicing
Advances with respect to any Specially Serviced Mortgage Loan, REO Mortgage
Loan or REO Property. To the extent that the Special Servicer determines that
Servicing Advances will be required with
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respect to a Specially Serviced Mortgage Loan, REO Mortgage Loan or REO
Property, the Special Servicer shall notify the Master Servicer within five
(5) Business Days of the need for a Servicing Advance (or, two (2) Business
Days if the Special Servicer determines that a Servicing Advance shall be
required on an urgent or emergency basis or, if the payment to be covered by
such Servicing Advance is required to be made before such two (2) Business
Days, the Special Servicer shall make such Advance itself, unless it
determines that such Advance would be a Nonrecoverable Advance, in which case
it shall deliver to the Master Servicer, the Trustee and the Monitoring
Certificateholder a Nonrecoverable Advance Certificate). If the Special
Servicer makes a Servicing Advance in accordance with the preceding sentence,
the same conditions and restrictions applicable to Servicing Advances made by
the Master Servicer shall apply, and the Special Servicer shall be entitled to
all of the rights the Master Servicer has with respect to Servicing Advances
it makes, including but not limited to, interest thereon at the Advance Rate
and repayment in accordance with the terms hereof. The Special Servicer shall
provide prompt written notice to the Master Servicer that the Special Servicer
has made any such Servicing Advance, the amount of which shall also be
included in any CMSA Loan Periodic Update File data files provided to the
Master Servicer. The Master Servicer's right of reimbursement for any
Servicing Advances, with interest thereon, shall be pro rata to the Special
Servicer's right of reimbursement for any Servicing Advances (with interest
thereon).
Section 6.11 Environmental Considerations.
(a) The Special Servicer shall not obtain title for the Trust Fund to
a Mortgaged Property as a result or in lieu of foreclosure or otherwise, nor
shall otherwise acquire possession of, or take other action with respect to,
any Mortgaged Property, if, as a result of any such action, the Trust Fund,
the Trustee, the Master Servicer or the Special Servicer 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 Responsibility Cleanup and Liability Act of 1980, as amended
from time to time, or any applicable comparable federal, state or local law,
or a "discharger" or "responsible party" thereunder, unless the Special
Servicer has also previously determined, in accordance with Accepted Special
Servicing Practices, based on a Phase I, and, if applicable, a "Phase II",
environmental site assessment report prepared within the prior twelve months
by a person who regularly conducts environmental audits for purchasers of
commercial property with at least 5 years of experience and a regionally
recognized firm, as determined by such Special Servicer in a manner consistent
with Accepted Special Servicing Practices, that:
(i) such Mortgaged Property is in compliance with
applicable Environmental Laws or, if not, that taking such
actions as are necessary to bring the Mortgaged Property
in compliance therewith is reasonably likely to produce a
greater recovery on a net present value basis, after
taking into account any risks associated therewith, than
not taking such actions; and
(ii) there are no circumstances present on such Mortgaged
Property relating to the use, management, storage or
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disposal of any Hazardous Materials for which
investigation, testing, monitoring, containment, clean-up
or remediation could be required under any Environmental
Law, or that, if any such Hazardous Materials are present
for which such action could be required, taking such
actions with respect to the affected Mortgaged Property is
reasonably likely to produce a greater recovery on a net
present value basis, after taking into account any risks
associated therewith, than not taking such actions; and
if the Special Servicer has so determined based on satisfaction of the
criteria in clauses (i) and (ii) above that it would be in the best economic
interest of the Certificateholders to take any such actions, the Special
Servicer has notified the Trustee and the Master Servicer in writing of such
proposed action, which notice shall be included in the Asset Strategy Report
pursuant to Section 6.03(c). The cost of preparation of any environmental
assessment and the cost of any compliance, containment, clean-up or
remediation shall be deemed to be a Property Protection Expense and shall be
paid by the Master Servicer as a Servicing Advance; provided, however, that,
if the Master Servicer determines such cost is non-recoverable, the Master
Servicer shall not be required to make such advance and such cost shall be an
Additional Trust Fund Expense.
(b) If the Special Servicer determines, pursuant to subsection (a)
above, that taking such actions as are necessary to bring any such Mortgaged
Property into compliance with applicable Environmental Laws, or taking such
actions with respect to the containment, clean-up, removal or remediation of
Hazardous Materials affecting any such Mortgaged Property including the costs
of preparing any environmental assessment, is not reasonably likely to produce
a greater recovery on a net present value basis, after taking into account any
risks associated therewith, than not taking such actions, the Special Servicer
shall notify the Directing Certificateholder, the Trustee and the Master
Servicer of such determination and recommend such action in the Asset Strategy
Report pursuant to Section 6.03(c) as it deems in good faith to be in the best
economic interests of the Certificateholders.
(c) Notwithstanding the foregoing, the Special Servicer shall not
take any action pursuant to this Section 6.11 except in connection with the
implementation of an Asset Strategy Report pursuant to Section 6.03(c).
(d) The Special Servicer shall promptly notify the relevant insurance
company for any Specially Serviced Mortgage Loan that has an environmental
insurance policy if the Special Servicer determines that a claim should be
made on such policy. The Special Servicer shall use all efforts consistent
with Accepted Special Servicing Practices in pursuing such claim on behalf of
the Trust Fund.
Section 6.12 Restoration of Specially Serviced Mortgage Loans.
(a) Upon determining with respect to a Specially Serviced Mortgage
Loan that (i) three (3) consecutive Monthly Payments on a Specially Serviced
Mortgage Loan have been made in accordance with the terms of the related
Mortgage Note (taking into account any grace periods contained therein), (ii)
such Mortgage Loan is current as to payments of principal and interest and
(iii) no Servicing Transfer Event is continuing, the Special Servicer shall
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immediately give written notice thereof to the Master Servicer, the Directing
Certificateholder and the Trustee substantially in the form of Exhibit W.
(b) Unless the Master Servicer and the Special Servicer with respect
to a Mortgage Loan are the same Person, not later than two (2) Business Days
after notice has been given pursuant to subsection (a) above, the Special
Servicer shall send a letter by first class mail substantially in the form of
Exhibit X, with a copy to the Master Servicer, notifying the related Mortgagor
that such Mortgage Loan (and any related Cross Collateralized Loan, if
applicable) has ceased being a Specially Serviced Mortgage Loan and
instructing such Mortgagor to direct all future notices and communications to
the Master Servicer.
(c) In the event that a Specially Serviced Mortgage Loan (and any
related Cross Collateralized Loan, if applicable) ceases to be such pursuant
to this Section 6.12, not later than five (5) Business Days after notice has
been given in (a) above the Special Servicer shall provide the Master Servicer
with copies of all information, documents and records (including records
stored electronically on computer tapes, magnetic disks and the like) in its
possession relating to such Mortgage Loan (and any related Cross
Collateralized Loan, if applicable). Upon receipt of such notice and all
information, documents and records by the Master Servicer pursuant to Section
6.02(c) hereof, such Mortgage Loan (and any related Cross Collateralized Loan,
if applicable) shall cease to be a Specially Serviced Mortgage Loan, the
Special Servicer's obligation to service such Mortgage Loan (and any related
Cross Collateralized Loan, if applicable) shall terminate, and all duties and
obligations of the Master Servicer with respect to such Mortgage Loan (and any
related Cross Collateralized Loan, if applicable) to the extent set forth
herein previously assumed by the Special Servicer shall be reassumed by the
Master Servicer.
Section 6.13 Special Servicer Compensation.
(a) Subject to Section 6.16(c), as compensation for its activities
hereunder, the Special Servicer shall be entitled to receive the Basic Special
Servicing Fee with respect to each Specially Serviced Mortgage Loan. As to
each Specially Serviced Mortgage Loan, the Basic Special Servicing Fee shall
be the product of the Basic Special Servicing Fee Rate and the Stated
Principal Balance of such Specially Serviced Mortgage Loan or REO Loan as of
the Due Date in the prior calendar month calculated for the same period
respecting which any related interest payment on each such Specially Serviced
Mortgage Loan is calculated. The Basic Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan shall cease to accrue as of the date a
Liquidation Event occurs in respect thereof. As to each Specially Serviced
Mortgage Loan, earned but unpaid Basic Special Servicing Fee shall be payable
monthly out of general collections on the Mortgage Loans on deposit in the
Collection Account, and to the extent provided in Section 4.03.
(b) As further compensation for its activities hereunder the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. The Workout Fee shall be payable from, and shall be
calculated by application of the Workout Fee Rate to, each collection of
interest (other than Default Interest and Excess Interest) and principal
received on such Mortgage Loan for so long as it remains a Corrected Mortgage
Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease
to be payable if a
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Servicing Transfer Event occurs with respect thereto 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 again becomes a Corrected
Mortgage Loan. If the Special Servicer is terminated other than for cause or
resigns in accordance with Section 3.06, it shall retain the right to receive
any and all Workout Fees payable in respect of Mortgage Loans that became
Corrected Mortgage Loans during the period that it acted as Special Servicer
and were still such 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.
(c) As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan as to which it receives any full,
partial or discounted payoff or any Liquidation Proceeds (other than in
connection with the purchase of any such Specially Serviced Mortgage Loan or
REO Property (i) by the Special Servicer, a Monitoring Certificateholder, the
Master Servicer or the Depositor (unless such purchase is by the Depositor or
the related Mortgage Loan Seller pursuant to Section 2.04 and such purchase is
made by the Depositor or the related Mortgage Loan Seller after the time frame
specified in Section 2.04) or (ii) pursuant to Section 12.01). As to each such
Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be
payable from, and shall be calculated by application of the Liquidation Fee
Rate to, such full, partial or discounted payoff and/or such Liquidation
Proceeds (net of the related costs and expenses associated with related
liquidation). No Liquidation Fee will be payable with respect to any Specially
Serviced Mortgage Loan solely by virtue of such Mortgage Loan becoming a
Corrected Mortgage Loan.
(d) Notwithstanding anything to the contrary herein, a Liquidation
Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid
from the same proceeds on or with respect to such Mortgage Loan.
(e) Subject to the Special Servicer's right to employ Sub-Servicers,
the Special Servicer's right to receive the Basic Special Servicing Fee, the
Workout Fee and/or the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(f) The Special Servicer shall also be entitled to receive as part of
its servicing compensation net investment income pursuant to Section 6.06(c)
and certain fees described in clause (2) of Section 4.02(c) with respect to
any Specially Serviced Mortgage Loan (subject to 4.08(d) and except for NSF
check charges) and as otherwise permitted under this Agreement.
Section 6.14 Limitations on the Special Servicer with Respect
to ARD Loans.
With respect to all ARD Loans, the Special Servicer shall not take
any enforcement action with respect to the payment of Excess Interest or
principal in excess of the principal component of the constant Monthly
Payment, other than requests for collection, until the maturity date of the
related Mortgage Loan. If any action is taken after the maturity date of the
related Mortgage Loan, any recoveries shall be applied as set forth herein;
provided, however, if the related Mortgagor indicates that it can make
payments of principal and interest
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but not payments of Excess Interest, the Special Servicer shall have the right
to waive or modify the required payment of Excess Interest. Subject to the
related Mortgage Loan Documents, if the related Mortgagor elects not to prepay
its ARD Loan in full on or prior to the Anticipated Repayment Date (1) the
Mortgage Loan's interest rate will step up to the interest rate specified in
the related Mortgage Loan Document; provided, however, that payment of such
Excess Interest shall be deferred until the principal of such ARD Loan has
been paid in full; (2) all or a substantial portion of the Excess Cash Flow
collected after the Anticipated Repayment Date shall be applied towards the
prepayment of such ARD Loan and once the principal balance of an ARD Loan has
been reduced to zero all Excess Cash Flow will be applied to the payment of
certain costs associated with owning, managing and operating the related
Mortgaged Property and accrued Excess Interest; and (3) if the property
manager for the related Mortgaged Property can be removed by or at the
direction of the mortgagee on the basis of a debt service coverage test, the
subject debt service coverage ratio shall be calculated without taking account
of any increase in the related Mortgage Interest Rate on such Mortgage Loan's
Anticipated Repayment Date.
Section 6.15 Collateral Value Adjustments.
(a) By the Required Appraisal Date for any Mortgage Loan (or such
longer period as the Special Servicer is (as certified thereby to the Trustee
in writing) diligently and in good faith proceeding to obtain such appraisal),
the Special Servicer shall use its best efforts consistent with Accepted
Special Servicing Practices to obtain an appraisal for the related Mortgaged
Property from an Independent MAI appraiser, or, if such Mortgage Loan has a
Stated Principal Balance of less than $2,000,000, an Appraisal Estimate
(except if an appraisal, or Appraisal Estimate, as appropriate has been
conducted within the 12 month period preceding such event). The cost of such
appraisal shall be paid by the Master Servicer as a Servicing Advance.
Notwithstanding the foregoing, the Directing Certificateholder shall have the
right, at any time within six months of the date of its receipt of any
appraisal of any Mortgaged Property required to be obtained pursuant to the
immediately preceding paragraph, to require that the Special Servicer obtain a
new appraisal of such Mortgaged Property in accordance with MAI standards from
a state certified appraiser chosen by the Special Servicer, the cost of which
shall be paid by the Monitoring Certificateholders without right of
reimbursement; provided, however, that the Special Servicer shall not be
required to obtain any such appraisal unless the Special Servicer shall have
received reasonable assurance of payment of the costs of such appraisal and of
any expenses related thereto. Upon receipt of the appraisal obtained pursuant
to the immediately preceding sentence, the Special Servicer shall redetermine
and report in writing to the Master Servicer, the Trustee and the Directing
Certificateholder the amount of the Collateral Value Adjustment with respect
to such Mortgage Loan, and such redetermined Collateral Value Adjustment shall
replace the prior Collateral Value Adjustment with respect to such Mortgage
Loan.
(b) Until such time as the related Collateral Value Adjustment is
reduced to zero, within 30 days of each anniversary of a Required Appraisal
Date for any Mortgage Loan, the Special Servicer shall order an update of the
prior appraisal or make an Appraisal Estimate for the related Mortgaged
Property (the cost of which will be a Servicing Advance of the Master
Servicer).
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(c) The Special Servicer shall determine and report to the Master
Servicer any appraisal value obtained pursuant to clause (a) or (b) above
pursuant to Section 6.09.
Section 6.16 Replacement Special Servicer.
(a) The Directing Certificateholder may at any time and without cause
terminate the Special Servicer and appoint a replacement (a "Replacement
Special Servicer") to perform such duties under substantially the same terms
and conditions as applicable to the Special Servicer. Such holder(s) shall
designate a replacement to so serve by the delivery to the Trustee of a
written notice stating such designation. The Trustee shall, promptly after
receiving any such notice, so notify the Rating Agencies. The designated
replacement shall become the Replacement Special Servicer as of the date the
Trustee shall have received: (i) written confirmation from each Rating Agency
stating that if the designated replacement were to serve as Special Servicer
under this Agreement, none of the then-current rating or ratings of all
outstanding Classes of the Certificates would be qualified (if applicable),
downgraded or withdrawn as a result thereof; (ii) a written acceptance of all
obligations of the Replacement Special Servicer, executed by the designated
replacement; and (iii) an Opinion of Counsel to the effect that the
designation of such replacement to serve as Replacement Special Servicer is in
compliance with this Agreement, that the designated replacement will be bound
by the terms of this Agreement and that this Agreement will be enforceable
against such designated replacement in accordance with its terms. The Special
Servicer shall be deemed to have resigned from its duties simultaneously with
such designated replacement's becoming the Replacement Special Servicer under
this Agreement. Any Replacement Special Servicer may be similarly so replaced
by the Directing Certificateholder.
(b) Notwithstanding the replacement of a Special Servicer pursuant to
clause (a) above, the terminated Special Servicer shall be entitled to receive
the ongoing Workout Fee for any Mortgage Loan which became a Specially
Serviced Mortgage Loan and was subsequently returned to a performing status
prior to such termination or if the Special Servicer resolved the
circumstances and/or conditions causing such Mortgage Loan to be a Specially
Serviced Mortgage Loan, but the Mortgage Loan had not as of the time the
Special Servicer is terminated become a Corrected Mortgage Loan because the
related Mortgagor had not made three consecutive Monthly Payments and
subsequently becomes a Corrected Mortgage Loan as a result of the related
Mortgagor making such payments; provided that if such Mortgage Loan once again
becomes a Specially Serviced Mortgage Loan, the Replacement Special Servicer
shall thereafter be entitled to any Basic Special Servicing Fee, Workout Fees
or Liquidation Fees with respect thereto. Subject to clause (c) below, the
Replacement Special Servicer shall be entitled to the Basic Special Servicing
Fee for all other Specially Serviced Mortgage Loans.
(c) Notwithstanding the replacement of a Special Servicer pursuant to
clause (a) above, the terminated Special Servicer shall be entitled to receive
amounts owing to it pursuant to Section 3.08 and Section 6.13(b), and all
other amounts accrued and owing to it under this Agreement prior to the
effective date of such resignation.
(d) The Directing Certificateholder shall be responsible for paying
any costs associated with such replacement, including reasonable costs of any
servicing transfer.
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ARTICLE VII
PAYMENTS TO CERTIFICATEHOLDERS
Section 7.01 Certificate Account; Remittances to the Trustee.
(a) The Trustee shall establish and maintain one or more accounts
(collectively, the "Certificate Account"), held in trust for the benefit of
the Certificateholders. The Certificate Account shall be an Eligible Account.
The Trustee shall deposit in the Certificate Account, when received or as
otherwise required hereunder, all amounts received from the Master Servicer
with respect to all Mortgage Loans pursuant to this Agreement and the amounts
from the Interest Reserve Account pursuant to Section 3.17. If the Trustee
shall deposit in the Certificate Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding.
Funds in the Certificate Account shall be held uninvested.
(b) On each Master Remittance Date, the Master Servicer shall
withdraw from the Collection Account and remit to the Trustee, by wire
transfer of immediately available funds to the Certificate Account, all
amounts then on deposit in the Collection Account required to be remitted to
the Trustee pursuant to Section 4.04.
Section 7.02 Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts on
deposit in the Certificate Account (which amounts shall remain uninvested),
other than any amounts in respect of Excess Interest and Default Interest,
first to payment to the Trustee of the Trustee Fee and all reimbursable
expenses of the Trustee, not previously paid or reimbursed pursuant to Section
11.08(a) or (b) and second, to the extent of the Available Distribution
Amount, in the following order of priority:
(i) On each Distribution Date, (x) the related Class
Portion of any U.S. Treasury Net Prepayment Premiums for
each Mortgage Loan to each Class of Certificates and (y)
any Non-U.S. Treasury Net Prepayment Premium, to the Class
X1 Certificates;
(ii) to distributions of the Interest Distribution Amounts
for such Distribution Date on the Class A1, Class A2,
Class A3 and Class X Certificates, pro rata, based on
their respective Interest Distribution Amounts;
(iii) to distributions of the Principal Distribution
Amount for such Distribution Date to Class A1 Certificates
until the Class Balance thereof is reduced to zero;
(iv) to distributions of the Principal Distribution Amount
(or the portion thereof remaining after the distribution
thereof to the Class A1 Certificates in reduction
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of the Class Balance thereof to zero) for such
Distribution Date on the Class A2 Certificates, until the
Class Balance thereof is reduced to zero;
(v) to distributions of the Principal Distribution Amount
(or the portion thereof remaining after the distribution
thereof to the Class A2 Certificates in reduction of the
Class Balance thereof to zero) for such Distribution Date
on the Class A3 Certificates, until the Class Balance
thereof is reduced to zero;
(vi) to distributions of the Interest Distribution Amount
for such Distribution Date on the Class B Certificates;
(vii) to distribution of the Principal Distribution Amount
(or the portion thereof remaining after the distribution
thereof to the Class A3 Certificates in reduction of the
Class Balance thereof is reduced to zero) for such
Distribution Date on the Class B Certificates, until the
Class Balance thereof is reduced to zero;
(viii) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class C
Certificates;
(ix) to distributions of the Principal Distribution Amount
(or the portion thereof remaining after the distribution
thereof to the Class B Certificates in reduction of the
Class Balance thereof to zero) for such Distribution Date
on the Class C Certificates until the Class Balance
thereof is reduced to zero;
(x) to distributions of the Interest Distribution Amount
for such Distribution Date on the Class D Certificates;
(xi) to distributions of the Principal Distribution Amount
(or the portion thereof remaining after the distribution
thereof to the Class C Certificates in reduction of the
Class Balance thereof is reduced to zero) for such
Distribution Date on the Class D Certificates, until the
Class Balance thereof is reduced to zero;
(xii) to distributions of the Interest Distribution Amount
for such Distribution Date on the Class E Certificates;
(xiii) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class D Certificates in
reduction of the Class Balance thereof to zero) for such
Distribution
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Date on the Class E Certificates, until the Class Balance
thereof is reduced to zero;
(xiv) to distributions of the Interest Distribution Amount
for such Distribution Date on the Class F Certificates;
(xv) to distributions of the Principal Distribution Amount
(or the portion thereof remaining after the distribution
thereof to the Class E Certificates in reduction of the
Class Balance thereof to zero) for such Distribution Date
on the Class F Certificates, until the Class balance
thereof is reduced to zero;
(xvi) to distributions of the Interest Distribution Amount
for such Distribution Date on the Class G Certificates;
(xvii) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class F Certificates in
reduction of the Class Balance thereof to zero) for such
Distribution Date on the Class G Certificates, until the
Class Balance thereof is reduced to zero;
(xviii) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class H
Certificates;
(xix) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class G Certificates in
reduction of the Class Balance thereof to zero) for such
Distribution Date on the Class H Certificates, until the
Class Balance thereof is reduced to zero;
(xx) to distributions of the Interest Distribution Amount
for such Distribution Date on the Class J Certificates;
(xxi) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class H Certificates in
reduction of the Class Balance thereof to zero) for such
Distribution Date on the Class J Certificates, until the
Class Balance thereof is reduced to zero;
(xxii) to distributions of the Interest Distribution
Amount for such Distribution Date to the Class K
Certificates;
(xxiii) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
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distribution thereof to the Class J Certificates in
reduction of the Class Balance thereof to zero) for such
Distribution Date on the Class K Certificates, until the
Class Balance thereof is reduced to zero;
(xxiv) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class L
Certificates;
(xxv) to distribution of the Principal Distribution Amount
(or the portion thereof remaining after the distribution
thereof to the Class K Certificates in reduction of the
Class Balance thereof is reduced to zero) for such
Distribution Date on the Class L Certificates, until the
Class Balance thereof is reduced to zero;
(xxvi) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class M
Certificates;
(xxvii) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class L Certificates in
reduction of the Class Balance thereof to zero) for such
Distribution Date on the Class M Certificates, until the
Class Balance thereof is reduced to zero;
(xxviii) to the distributions of the Interest Distribution
Amount for such Distribution Date to the Class NR
Certificates;
(xxix) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class M Certificates in
reduction of the Class Balance thereof to zero) for such
Distribution Date on the Class NR Certificates, until the
Class Balance thereof is reduced to zero;
(xxx) sequentially to the Classes of Certificates, whether
or not outstanding, in the order set forth for
distribution of principal any amounts recovered
representing Realized Losses previously allocated to such
Class in reduction of its Class Balance; and
(xxxi) to distributions to the Class R-I
Certificateholders, in an amount equal to the remaining
balance in the Certificate Account, if any.
To the extent the Class Balances of the Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and
Class NR Certificates have
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been reduced to zero on any Distribution Date, the Adjusted Available
Distribution Amount remaining after application pursuant to clause (a)(ii)
above shall be applied to distribution of the Principal Distribution Amount
for such Distribution Date and each subsequent Distribution Date to the Class
A1, Class A2 and Class A3 Certificates pro rata based on (and limited to the
extent of) their respective Class Balances.
On each Distribution Date, the Trustee shall distribute (i) any
amounts in respect of Excess Interest on deposit in the Certificate Account
actually collected on the ARD Loans and any related REO Mortgage Loans during
the related Collection Period, and (ii) any amounts in respect of Default
Interest on deposit in the Certificate Account actually collected on the
Mortgage Loans during the related Collection Period, to the Holders of the
Class NR Certificates, without regard to whether any such Class is entitled to
distributions of interest or principal on such Distribution Date (whether by
reason of its Class Balance having been reduced to zero, by reason of it not
yet being entitled to distributions of principal, or for any other reason).
(b) All distributions made with respect to each Class on each
Distribution Date shall be computed by the Trustee based upon information
furnished to the Trustee by the Master Servicer and allocated pro rata among
the outstanding Certificates in such Class based on their respective
Percentage Interests. All such distributions with respect to each Class (other
than the final distribution with respect thereto) will be made on each
Distribution Date to the Certificateholders of the respective Class of record
at the close of business on the related Record Date and shall be made by wire
transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with
wiring instructions no less than five (5) Business Days prior to the related
Record Date (or, in the case of the first Distribution Date, no later than the
Delivery Date), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
(c) Except as otherwise provided in Section 12.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date, the Trustee shall,
promptly mail to each Holder on such date of such Class of Certificates and
each Rating Agency a notice to the effect that:
(i) the Trustee expects that the final distribution with
respect to such Class of Certificates will be made on such
Distribution Date but only upon presentation and surrender
of such Certificates at the office of the Certificate
Registrar therein specified, and
(ii) no interest shall accrue on such Certificates from
and after such Distribution Date.
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Any funds not distributed to any Holder or Holders of Certificates of such
Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such Distribution Date, be set
aside and held in trust and credited to the account of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has
been given pursuant to this Section 7.02(c) shall not have been surrendered
for cancellation within six months after the time specified in such notice,
the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order
to receive the final distribution with respect thereto. If within one year
after the second notice all such Certificates shall not have been surrendered
for cancellation, the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of
such funds. No interest shall accrue or be payable to any Certificateholder on
any amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 7.02(c). If, within two years after
the second notice, any such Certificates shall not have been surrendered for
cancellation, then the Trustee shall pay over or continue to hold any amounts
so held by the Trustee in accordance with applicable escheatment law.
Section 7.03 Statements to Certificateholders.
(a) On each Distribution Date, the Trustee shall make available to
any interested person via its Website initially located at
"xxx.xxxxxxx.xxx/xxxx", (i) the related Distribution Date statement (in the
form attached as Exhibit H, (ii) the CSMA Loan Periodic Update File, the CMSA
Loan Setup File, the CMSA Bond Level File, the CMSA Collateral Summary File,
the CMSA Property File, the CMSA Financial File and the supplemental reports
identified as such in clause (b) of the definition of CMSA IRP and (iii) as a
convenience to interested persons (and not in furtherance of the distribution
thereof under the securities laws), the prospectus supplement, the prospectus,
and this Agreement.
In addition, on each Distribution Date, the Trustee shall make
available, to any Privileged Person via its Website, each statement received
prior to such Distribution Date prepared by the Master Servicer pursuant to
this Agreement. "Privileged Person" means any of the following: a party to
this Agreement, each Rating Agency, each Underwriter, each Mortgage Loan
Seller, the Directing Certificateholder, a designee of the Depositor and any
other person who shall have provided the Trustee with a certificate, using the
form attached as Exhibit AA, which form is available on, and may be submitted
through, the Trustee's Website, certifying that such person is a
Certificateholder, a beneficial owner of a Certificate, or a prospective
purchaser of a Certificate.
(b) The Trustee on behalf of the Depositor, shall furnish or cause to
be furnished, promptly upon the written request of any Holder of a Class X,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
NR, Class R-I, Class R-II or Class R-III Certificate (or a Certificate Owner
which shall have certified, using the form attached as Exhibit AA, which form
is available on, and may be submitted through, the Trustee's Website located
at "xxx.xxxxxxx.xxx/xxxx", to the Trustee that it is a Certificate Owner of
any such Class)
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reasonably current Rule 144A Information (as defined below) to such
Certificateholder or to a prospective transferee of such a Certificate (or
interests in such Certificate) designated by such Certificateholder, as the
case may be, in connection with the resale of such Certificate or such
interests by such Certificateholder pursuant to Rule 144A to the extent
received from the Servicers in accordance with the terms and conditions of
this Agreement. "Rule 144A Information" shall mean the information specified
in Rule 144A(d)(4)(i) and (ii) under the Securities Act of 1933, as amended.
The Trustee shall advise the Master Servicer or Special Servicer of any
request by a Certificateholder and shall consult with the Master Servicer or
Special Servicer as to the information to be supplied. Based upon such
consultation and to the extent the Trustee is not in possession of reasonably
current Rule 144A Information on the date of any such request, the Master
Servicer and the Special Servicer shall, upon request from the Trustee,
promptly provide the Trustee with reasonably current Rule 144A Information to
the extent reasonably available. The Trustee may place its disclaimer on any
such Rule 144A Information to the extent it is not the source of such
information. The Trustee shall not have 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 the Trustee by another to the
extent the information so furnished accurately sets forth the information
prepared or delivered.
(c) Each of the Trustee and the Master Servicer shall deliver to the
Directing Certificateholder in electronic format or make available on the
Trustee's Website copies of all reports, information statements or notices
prepared thereby or received thereby, including, without limitation, all
reports, information statements or notices prepared and furnished to the
Master Servicer by the Special Servicer, as requested by and not previously
provided to the Directing Certificateholder. The Master Servicer may maintain
a Website at "xxx.xxxxxxxxx.xxx", which may contain the information and
reports required for the Master Servicer to produce herein. The Master
Servicer may require registration and the execution of an access agreement in
connection with providing access to its Website. Notwithstanding the
foregoing, the Master Servicer may deliver to the Directing Certificateholder
hardcopies of any report, information statement or notice that it is unable,
or in its reasonable judgment deems impracticable, to convert into electronic
format.
(d) Upon ten (10) days prior written notice, the Master Servicer
(with respect to the items in clauses (a), (b), (c), (d), (e) and (f) below),
the Special Servicer (with respect to the items in clauses (f) and (g) below)
and the Trustee (with respect to the items in clause (b) below and to the
extent any other items are in its possession) shall make available at their
respective offices (or by the Trustee and the Master Servicer, on their
respective Websites, or both) primarily responsible for administration of the
Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office,
except with respect to documents which constitute part of the Mortgage Loan
Files, which will be maintained at its office in Minneapolis, Minnesota),
during normal business hours, or send to the requesting party, such party
having been certified to the Trustee or the Servicer, as applicable in
accordance with (a) and (b) in the following paragraph, as appropriate, at the
expense of such requesting party (unless otherwise provided in this
Agreement), for review by any Certificate Owner or Certificateholder or any
person identified by a Certificate Owner or Certificateholder or its
designated agent to the Trustee, the Master Servicer or the Special Servicer,
as the case may be, as a prospective transferee of any Certificate
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or interest therein, the Trustee, the Rating Agencies, the Underwriters and
anyone specified thereby and the Depositor originals or copies of the
following items: (a) this Agreement and any amendments thereto, (b) all
statements and reports delivered or made available by such party to Holders of
the relevant Class of Certificates pursuant to this Section 7.03 since the
Delivery Date (c) all accountants' reports delivered to the Master Servicer in
respect of itself or the Special Servicer since the Delivery Date as described
in Section 3.03, (d) the most recent property inspection report prepared by or
on behalf of the Master Servicer in respect of each Mortgaged Property and any
environmental site assessment report prepared pursuant to Section 6.11, (e)
the most recent Mortgaged Property annual operating statements and rent roll,
if any, collected by or on behalf of the Master Servicer, (f) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Special Servicer and the Asset Strategy Report prepared pursuant
to Section 6.03(c) and (g) any and all Officers' Certificates and other
evidence delivered by the Master Servicer or the Special Servicer, as the case
may be, to support its determination that any Advance was, or if made, would
be, a Nonrecoverable Advance pursuant to Section 4.05 including appraisals
affixed thereto. Copies of any and all of the foregoing items will be
available from the Master Servicer, the Special Servicer or the Trustee, as
the case may be, upon request and shall be provided to any of the Rating
Agencies and the Directing Certificateholder at no cost pursuant to their
reasonable requests; provided, however, that the Directing Certificateholder
shall reimburse the Master Servicer and/or the Trustee for any out-of-pocket
expenses reasonably incurred in connection with providing the foregoing items
in accordance with this Section 7.03(d) to the extent that such items (i) have
been previously delivered as required pursuant to this Agreement, or (ii) are
available, electronically or otherwise, to the Directing Certificateholder.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 7.03, the
Trustee or the Master Servicer, as applicable, shall require: (a) in the case
of Certificate Owners, a confirmation executed by the requesting Person in the
form of Exhibit N-1 generally to the effect that such Person is a beneficial
owner of Book-Entry Certificates and, subject to the last sentence of this
paragraph, will keep such information confidential (except that such
Certificate Owner may provide such information to any other Person that holds
or is contemplating the purchase of any Certificate or interest therein,
provided that such other Person confirms in writing such ownership interest or
prospective ownership interest and agrees to keep such information
confidential); and (b) in the case of a prospective purchaser of a Certificate
or any interest therein, confirmation executed by the requesting Person in the
form of Exhibit N-2 generally to the effect that such Person is a prospective
purchaser of a Certificate or an interest therein, is requesting the
information for use in evaluating a possible investment in Certificates and,
subject to the last sentence of this paragraph, will otherwise keep such
information confidential. The Holders of the Certificates, by their acceptance
thereof, will be deemed to have agreed, subject to the last sentence of this
paragraph, to keep such information confidential (except that any Holder may
provide such information obtained by it to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein, provided
that such other Person confirms in writing to the Trustee or the Master
Servicer, as applicable, prior to receipt or review of such information, such
ownership interest or prospective ownership interest and agrees to keep such
information confidential). Notwithstanding the foregoing, no
Certificateholder, Certificate Owner or prospective Certificateholder or
Certificate Owner shall be obligated to keep confidential any information
received from the Trustee or the Master Servicer, as applicable, pursuant to
this
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Section 7.03 that has previously been made available without a password via
the Trustee's or the Master Servicer's, as applicable, website or has
previously been filed with the Securities and Exchange Commission, and the
Trustee or Master Servicer, as applicable, shall not require either of the
certifications contemplated by clause (a) or (b) of this paragraph in
connection with providing any information pursuant to this Section 7.03 that
has previously been made available without a password via the Trustee's or
Master Servicer's Website or has previously been filed with the Securities and
Exchange Commission.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC,
the Federal Reserve Board and any other banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access to
any records regarding the Mortgage Loans and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law
or contract or to the extent such information is subject to a privilege under
applicable law to be asserted on behalf of the Certificateholders. Such access
shall be afforded only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer,
as the case may be, designated by it.
The Trustee, the Master Servicer, the Special Servicer and the
Underwriters may require payment from the Certificateholder or Certificate
Owner of a sum sufficient to cover the reasonable costs and expenses of
providing any such information or access pursuant to this Section 7.03 to, or
at the request of, the Certificateholders or Certificate Owners or prospective
transferees, including, without limitation, copy charges and, in the case of
Certificateholders or Certificate Owners requiring on site review in excess of
three (3) Business Days, reasonable fees for employee time and for space.
Notwithstanding the foregoing, payment shall not be required from the
Directing Certificateholder in connection with providing it the information
and reports listed in Section 4.10(g).
In no event shall any party be required to furnish information
hereunder if to do so would violate provisions of the Mortgage Loan Documents.
(e) The Trustee is hereby authorized to furnish, to
Certificateholders and/or to the public any other information (such other
information, collectively, "Additional Information") with respect to the
Mortgage Loans, any Mortgaged Property or the Trust Fund as may be provided to
it by the Depositor, the Master Servicer or Special Servicer or gathered by it
in any investigation or other manner from time to time, provided that (A) any
such Additional Information shall only be furnished with the consent or at the
request of the Depositor, (B) the Trustee shall be entitled to indicate the
source of all information furnished by it and the Trustee may affix thereto
any disclaimer it deems appropriate in its sole discretion (including any
warnings as to the confidential nature and/or the uses of such information as
it may, in its sole discretion, determine appropriate), (C) the Trustee shall
be entitled (but not obligated) to require payment from each recipient of a
reasonable fee for, and its out-of-pocket expenses incurred in connection
with, the collection assembly, reproduction or delivery of any such Additional
Information and (D) the Trustee shall be entitled to distribute or make
available such information in accordance with such reasonable rules and
procedures as it may deem necessary or appropriate (which may include the
requirement that an agreement that provides such information shall be used
solely for purposes of evaluating the investment characteristics or valuation
of the
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Certificates be executed by the recipient, if and to the extent the Trustee
deems the same to be necessary or appropriate). With the written approval of
the Depositor, the Trustee may make certain information regarding the Mortgage
Loans available to Certificateholders in electronic format through its Website
located at "xxx.xxxxxxx.xxx/xxxx", or by such other means as the Trustee may
have in place from time to time. Nothing herein shall be construed to impose
upon the Trustee any obligation or duty to furnish or distribute any
Additional Information to any Person in any instance, and the Trustee shall
neither have any liability for furnishing nor for refraining from furnishing
Additional Information in any instance. The Trustee shall be entitled (but not
required) to require that any consent, direction or request given to it
pursuant to this clause (e) be made in writing.
Section 7.04 Distribution of Reports to the Trustee and the Depositor;
Advances by the Master Servicer.
On or prior to 12:00 noon, New York City time, on the second Business
Day prior to each Distribution Date, the Master Servicer shall furnish a
statement, in written or electronic format (the CMSA Loan Periodic Update File
of the CMSA IRP) to the Trustee pursuant to Section 4.10 setting forth (i) the
amounts available for deposit into the Certificate Account and (ii) the
maximum amount required to be advanced by the Master Servicer in connection
with the related Distribution Date. The determination by the Master Servicer
of such amounts shall, in the absence of obvious error, be presumptively
deemed to be correct for all purposes hereunder and the Trustee shall be
protected in relying upon the same without any independent check or
verification. To the extent such statement indicates one or more delinquencies
in connection with which a related Advance was not made by the Master
Servicer, the Trustee shall commence an evaluation of whether, in its good
faith business judgment, an Advance by the Trustee may be required and whether
it would be a Nonrecoverable Advance; provided, however, that notwithstanding
such examination, the Trustee shall have no responsibility for reviewing or
confirming any decision made with respect to an Advance by the Master Servicer
and may conclusively rely upon the determination of the Master Servicer that
an Advance if made would constitute a Nonrecoverable Advance. The Master
Servicer shall promptly provide to the Trustee, upon request, such information
as the Master Servicer may have to enable the Trustee to make such
determination.
In the event that the Master Servicer determines as of the Business
Day preceding the Master Remittance Date that it will be unable to deposit in
the Certificate Account an amount equal to the P&I Advance required to be made
for the immediately succeeding Distribution Date, it shall give notice to the
Trustee of its inability to advance (such notice may be given by telecopy),
not later than 3:00 P.M., New York City time, on such Business Day, specifying
the portion of such amount that it will be unable to deposit. Unless the
Master Servicer shall have directly or indirectly deposited in the Certificate
Account by 11:00 A.M., New York City time, on the related Distribution Date,
such portion of the amount of such Advance as to which the Master Servicer
shall have given notice pursuant to the preceding sentence, the provisions of
Section 10.01 shall apply and the Trustee (a) may terminate all of the rights
and obligations of the Master Servicer under this Agreement in accordance with
Section 10.01, (b) may assume the rights and obligations of the Master
Servicer hereunder in accordance with Section 10.02, and (c) shall make such
required Advance (subject to its own determination of nonrecoverability) not
later than noon, New York City time, on such Distribution Date.
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The Trustee shall deposit all funds it receives pursuant to this
Section 7.04 into the Certificate Account.
Section 7.05 Allocations of Realized Losses.
All Realized Losses reported for any Distribution Date shall be
allocated by the Trustee as follows in reduction of the related Class Balance:
first, to the Class NR Certificates until the Class Balance thereof has been
reduced to zero; second, to the Class M Certificates until the Class Balance
thereof has been reduced to zero; third, to the Class L Certificates until the
Class Balance thereof has been reduced to zero; fourth, to the Class K
Certificates until the Class Balance thereof has been reduced to zero; fifth,
to the Class J Certificates until the Class Balance thereof has been reduced
to zero; sixth, to the Class H Certificates until the Class Balance thereof
has been reduced to zero; seventh, to the Class G Certificates until the Class
Balance thereof has been reduced to zero; eighth, to the Class F Certificates
until the Class Balance thereof has been reduced to zero; ninth, to the Class
E Certificates until the Class Balance thereof has been reduced to zero;
tenth, to the Class D Certificates until the Class Balance thereof has been
reduced to zero; eleventh, to the Class C Certificates until the Class Balance
thereof has been reduced to zero; twelfth, to the Class B Certificates until
the Class Balance thereof has been reduced to zero; and the remainder of such
Realized Losses to the Class A1, Class A2 and Class A3 Certificates, pro rata,
until their respective Class Balances have been reduced to zero.
Notwithstanding the foregoing, Realized Losses with respect to interest
amounts will not be allocated to any Class of Certificates in reduction of the
related Class Balance in an amount which exceeds the excess of the aggregate
Stated Principal Balance of the Mortgage Loans as of the related Determination
Date over the aggregate Class Balance of the Certificates after any other
reductions or payments thereon for such Distribution Date.
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ARTICLE VIII
THE CERTIFICATES
Section 8.01 The Certificates.
(a) The Certificates will be substantially in the form annexed hereto
as Exhibit A. The Class A1, Class A2, Class A3, Class X1, Class X2, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M and Class NR Certificates will be issuable only in minimum
denominations (based on their respective Original Class Balances or Class
Notional Amount) corresponding to initial Certificate Balances as of the
Delivery Date of not less than $25,000, or notional amounts as of the Delivery
Date of not less than $100,000, and integral multiples of $1 in excess
thereof. Only one Class R-I, one Class R-II and one Class R-III Certificate
may be issued.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who
were at any time the proper authorized signatories of the Certificate
Registrar shall bind the Certificate Registrar, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificates. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication substantially in
the form provided for herein executed by the Certificate Registrar by manual
signature, and such certificate 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.
(c) The Class A1, Class A2, Class A3, Class B, Class C, Class D,
Class X1, Class X2, Class E, Class F, Class G, Class H, Class J , Class K,
Class L, Class M and Class NR Certificates shall initially be issued as one or
more Certificates registered in the name of the Depository or its nominee and,
except as provided below, registration of such Certificates may not be
transferred by the Certificate Registrar except to another Depository that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. The Class R-I, Class R-II and Class R-III
Certificates will be issued as Definitive Certificates. The Certificate Owners
shall hold their respective Ownership Interests in and to each of the
referenced herein Certificates (except for such remainders) through the
book-entry facilities of the Depository and, except as provided below, shall
not be entitled to Definitive Certificates in respect of such Ownership
Interests. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing such Certificate Owner. Each Depository Participant shall
transfer the Ownership Interests only in the Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures. Neither the
Trustee nor the Certificate Registrar shall have a duty to monitor the
transfer of Ownership Interests in any Book-Entry Certificate.
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The Book-Entry Certificates evidencing the Class X1, Class X2, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class NR
Certificates offered and sold other than as described in the preceding
paragraph (each, a "Restricted Global Certificate") shall be registered in the
name of the Depository for credit to the respective accounts of Certificate
Owners which have certified they are "qualified institutional buyers" under
Rule 144A. The aggregate principal amount of any Restricted Global Certificate
may from time to time be increased or decreased by adjustments made on the
records of the Certificate Registrar and the Depository, which adjustments
shall be conclusive as to the aggregate principal amount of any Restricted
Global Certificate.
The Book-Entry Certificates evidencing the Class X1, ClassX2, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class NR
Certificates offered and sold outside the United States in reliance on
Regulation S (each, a "Regulation S Global Certificate") shall be registered
in the name of the Depository for credit, initially and during the Restricted
Period, to the respective accounts of Certificate Owners of the Regulation S
Global Certificates (or to other accounts that they direct) at Clearstream,
Luxembourg or Euroclear. The aggregate principal amount of any Regulation S
Global Certificate may be increased or decreased by adjustments made on the
records of the Certificate Registrar and the Depository for the Regulation S
Global Certificate, which adjustments shall be conclusive as to the aggregate
principal amount of any Regulation S Global Certificate.
Transfers of any Global Certificate shall be limited to transfers of
a Restricted Global Certificate or Regulation S Global Certificate in whole,
but not in part, to the Depository and its successors. Beneficial interests in
the Restricted Global Certificate and any Regulation S Global Certificate may
be transferred in accordance with the Depository's customary procedures and
the provisions of Section 8.02.
The Trustee, the Certificate Registrar, the Master Servicer and the
Depositor may for all purposes (including the making of payments due on the
respective Classes of Book-Entry Certificates (and, if necessary, the
selection of the Directing Certificateholder)) deal with the Depository as the
authorized representative of the Certificate Owners with respect to the
respective Classes of Book-Entry Certificates for the purposes of exercising
the rights of Certificateholders hereunder. The rights of Certificate Owners
with respect to the respective Classes of Book-Entry Certificates shall be
limited to those established by law and agreements between such Certificate
Owners and the Depository Participants and brokerage firms representing such
Certificate Owners. Multiple requests and directions from, and votes of, the
Depository as Holder of any Class of Book-Entry Certificates with respect to
any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a
reasonable record date in connection with solicitations of consents from or
voting by Certificateholders and shall give notice to the Depository of such
record date.
If (i) (A) the Depositor advises the Certificate Registrar in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Depositor is unable to locate a
qualified successor or (ii) the Depositor at its option advises the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository, the Certificate Registrar shall notify all
Certificate Owners, through the
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Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners representing the same. In
addition, upon request, the Certificate Registrar will issue Definitive
Certificates in exchange for Ownership Interests in like Certificate Balances
of the Book-Entry Certificates for the Class X1, Class X2, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M or Class NR Certificates
in connection with a transfer permitted pursuant to Section 8.02(b)(iii). Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Certificate Registrar shall issue the Definitive
Certificates. Neither the Depositor, the Master Servicer nor the Certificate
Registrar shall be liable for any actions taken by the Depository or its
nominee, including, without limitation, any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depositor in connection with the issuance of the Definitive Certificates
pursuant to this Section 8.01 shall be deemed to be imposed upon and performed
by the Certificate Registrar, and the Certificate Registrar and the Master
Servicer shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
Within ten (10) Business Days after the Delivery Date, the Depositor
shall supply the Certificate Registrar with an inventory of certificate forms
comprised of ten blank forms for each class of certificate together with the
forms of each class of certificate on diskette in read-only format.
If the Certificate Registrar and the Trustee are not the same, the
Certificate Registrar shall notify the Trustee upon the occurrence of the
foregoing.
Section 8.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register
in which, subject to such reasonable regulations as the Certificate Registrar
may prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. The Trustee is hereby initially appointed (and hereby agrees to act)
as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The Certificate
Registrar may appoint, by a written instrument delivered to the Trustee, any
other bank or trust company to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe, provided
that the predecessor Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment. The Master
Servicer shall have the right to inspect the Certificate Register or to obtain
a copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in
the Certificate Register.
(b) No transfer of any Class X1, Class X2, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class NR, Class R-I, Class R-II
and Class R-III Certificate shall be made unless that transfer is made
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), and effective registration or qualification
under applicable state securities laws, or is made in a transaction which does
not require such registration or qualification. If such a transfer is to be
made without registration or
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qualification and is to be made in connection with the issuance or transfer of
a Definitive Certificate, then the Certificate Registrar shall require, in
order to assure compliance with such laws, receipt of: (i) if such transfer is
purportedly being made in reliance upon Rule 144A under the 1933 Act, a
certificate from the prospective transferee substantially in the form attached
as Exhibit D-1 hereto, (ii) if such transfer is purportedly being made in
reliance upon Regulation S under the 1933 Act, a certificate from the
prospective transferee substantially in the form attached as Exhibit D-2
hereto and (iii) in all other cases, (A) (I) except where the Depositor or an
Affiliate thereof is the transferor or transferee, an Opinion of Counsel, (II)
a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit C hereto and (III) a certificate
from such Certificateholder's prospective transferee substantially in the form
attached as Exhibit E hereto or (B) if the Depositor or an Affiliate thereof
is the transferor or transferee, an Opinion of Counsel satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
such registration or qualification (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the
Trustee or the Certificate Registrar in their respective capacities as such).
None of the Depositor, the Trustee, or the Certificate Registrar is obligated
to register or qualify the Class X1, Class X2, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class NR, Class R-I, Class R-II
and Class R-III Certificates under the 1933 Act or any other securities law or
to take any action not otherwise required under this Agreement to permit the
transfer of any Class X1, Class X2, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class M, Class NR, Class R-I, Class R-II and Class R-III
Certificate without registration or qualification. Any Class X1, Class X2,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
NR, Class R-I, Class R-II or Class R-III Certificateholder desiring to effect
such a transfer shall, and does hereby agree to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result
if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
(c) Except as provided in Section 8.02(d), none of the Certificates,
except for the Class A1, Class A2, Class A3, Class X1, Class X2, Class B,
Class C, Class D, Class E or Class F Certificates, shall be transferred to (A)
any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts or other entities in which such plans,
accounts or arrangements are invested, that is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975
of the Code (each, a "Plan") or (B) any Person who is directly or indirectly
purchasing any such Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, unless the prospective
transferee provides the Certificate Registrar with a certification of facts
and an Opinion of Counsel which establish to the satisfaction of the
Certificate Registrar that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or cause the Master Servicer,
the Certificate Registrar or the Trustee to be deemed a fiduciary of such Plan
or result in the imposition of an excise tax under Section 4975 of the Code,
or such other Opinions of Counsel, officers' certificates, representations or
agreements as may be required by and in form and substance satisfactory to the
Depositor and the Trustee. Except as provided in Section 8.02(d), in the
absence of its having received the certification and Opinion of Counsel or
other documents contemplated by the preceding sentence, the Certificate
Registrar shall require the prospective transferee of any Class G, Class H,
Class J, Class K, Class L, Class M, Class NR, Class R-I, Class R-II or Class
R-III Certificate to certify (or in the case of a Book-Entry Certificate, the
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holder shall be deemed to certify), that it is neither (A) a Plan nor (B) a
Person who is directly or indirectly purchasing any such Certificates on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan.
(d) Notwithstanding Section 8.02(c), transfers of the Class G, Class
H, Class J, Class K, Class L, Class M and Class NR Certificates shall be
registered by the Certificate Registrar if the Certificate Registrar receives:
(i) a representation from the transferee of such Certificate, acceptable to
and in form and substance satisfactory to the Certificate Registrar, to the
effect that such transferee is not (A) a Plan or (B) a Person who is directly
or indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan, (ii) if the
purchaser is an insurance company, a representation that the purchaser is an
"insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 (60 Fed. Reg. 35925, July 12,
1995) ("PTCE 95-60")) and that the purchase and holding of such Certificates
is eligible for, and satisfies all of the requirements for relief under,
Sections I and III of PTCE 95-60; or (iii) an Opinion of Counsel satisfactory
to the Certificate Registrar that the purchase and holding of such Certificate
by a Plan, any person acting on behalf of a Plan or using a Plan's assets will
not result in the assets of the Trust Fund being deemed to be "plan assets"
and subject to the prohibited transaction requirements of ERISA and the Code
and will not subject the Trustee or the Certificate Registrar to any
obligation in addition to those undertaken in this Agreement. Unless an
opinion of counsel described in (iii) is delivered, the representations in (i)
or (ii) shall be deemed to have been made to the Certificate Registrar by the
transferee's acceptance of a Class G, Class H, Class J, Class K, Class L,
Class M or Class NR Certificate.
(e) No transfer of a Class A1, Class A2, Class A3, Class X1, Class
X2, Class B, Class C, Class D, Class E or Class F Certificate or any interest
therein shall be made to (A) any Plan or (B) any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan unless such
transferee qualifies as an accredited investor as defined in Rule 501(a)(1) of
Regulation D under the Securities Act and either (1) at the time of such
transfer, the Certificates are rated in one of the top four rating categories
by at least one Rating Agency, or (2) the purchaser is an insurance company
general account that is eligible for, and satisfies all of the requirements
of, Sections I and III of Prohibited Transaction Class Exemption 95-60. Each
Person who acquires a Class A1, Class A2, Class A3, Class X1, Class X2, Class
B, Class C, Class D, Class E or Class F Certificate shall be deemed to have
certified that the foregoing conditions are satisfied.
(f) No transfer of any Residual Certificate shall be made to a
Non-United States Person. Notwithstanding anything to the contrary contained
herein, prior to registration of any transfer, sale or other disposition of a
Residual Certificate, the Certificate Registrar shall have received (i) an
affidavit from the proposed transferee substantially in the form attached as
Exhibit F-1 hereto, to the effect that, among other things, (A) such
transferee is not a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, (B) such transferee is
not a Non-United States Person, (C) such transferee has no present knowledge
or expectation that it will become insolvent or subject to a bankruptcy
proceeding for so long as the Residual Certificate remains outstanding, and
(D) no purpose of such proposed transfer, sale or other disposition of the
Residual Certificate is or will be to impede the assessment or collection of
any tax, and (ii) a certificate from the transferor
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substantially in the form attached as Exhibit F-2 hereto, to the effect that,
among other things, no purpose of such proposed transfer, sale or other
disposition of the Residual Certificate is or will be to impede the assessment
or collection of any tax. Notwithstanding the registration in the Certificate
Register of any transfer, sale or other disposition of a Residual Certificate
to a Disqualified Organization or an agent (including a broker, nominee or
middleman) of a Disqualified Organization or to a Non-United States Person,
such registration shall be deemed to be of no legal force or effect whatsoever
and such Person shall not be deemed to be a Certificateholder for any purpose
hereunder, including, but not limited to, the receipt of distributions in
respect of such Residual Certificate. If any purported transfer of a Residual
Certificate shall be in violation of the provisions of this Section 8.02(d),
then the prior Holder of the Residual Certificate purportedly transferred
shall, upon discovery that the transfer of such Residual Certificate was not
in fact permitted by this Section 8.02(d), be restored to all rights as Holder
thereof retroactive to the date of the purported transfer. The Certificate
Registrar shall be under no liability to any Person for any registration of
transfer of a Residual Certificate that is not permitted by this Section
8.02(d) or for making payments due on such Residual Certificate to the
purported Holder thereof or taking any other action with respect to such
purported Holder under the provisions of this Agreement. The prior Holder
shall be entitled to recover from any purported Holder of a Residual
Certificate that was in fact not a permitted transferee under this Section
8.02(d) at the time it became a Holder all payments made on such Residual
Certificate. The Holder of Residual Certificates, by its acceptance thereof,
shall be deemed for all purposes to have consented to the provisions of this
Section 8.02 and to any amendment of this Agreement deemed necessary by
counsel of the Depositor to ensure that the transfer of a Residual Certificate
to a Disqualified Organization or any other Person will not cause the Trust
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the
Trust Fund.
(g) Each Holder of a Certificate, by its acceptance thereof, shall be
deemed to represent that neither MGT nor any of its affiliates has
discretionary authority or control with respect to the investment of the
Plan's assets invested in the related Certificate, or gives investment advice
with respect to the investment of such assets.
(h) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at the office of the Certificate
Registrar, the Certificate Registrar shall execute, authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
(i) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the office of the Certificate Registrar. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute, authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(j) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
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(k) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
(l) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar and a certificate of such
cancellation shall be delivered to the Trustee by the Certificate Registrar.
The Certificate Registrar shall hold such cancelled Certificates in accordance
with its standard procedures.
Section 8.03 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 Trustee and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence
of ownership in the Trust Fund, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 8.04 Persons Deemed Owners.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section
7.02 and for all other purposes whatsoever, and neither the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Certificate Registrar
nor any agent of any of them shall be affected by notice to the contrary.
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ARTICLE IX
THE DEPOSITOR
Section 9.01 Liability of the Depositor.
The Depositor shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the
Depositor herein.
Section 9.02 Merger, Consolidation or Conversion of the Depositor.
Subject to the following paragraph, the Depositor will keep in full
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its incorporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage
Loans and to perform its respective duties under this Agreement.
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 the
Depositor, shall be a party, or any Person succeeding to the business of the
Depositor, shall be the successor of the Depositor hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 9.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees
or agents shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor or any such Person against any breach of warranties or
representations made herein, or against any liability which would otherwise be
imposed by reason of misfeasance, bad faith or negligence in the performance
of duties. The Depositor and any director, officer, employee or agent thereof
may rely in good faith on any document of any kind which, prima facie, is
properly executed and submitted by any Person respecting any matters arising
hereunder. Except for any action described in the proviso of the first
sentence above, the Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action unless such action is related to its
duties under this Agreement.
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ARTICLE X
DEFAULT
Section 10.01 Events of Default.
"Event of Default", wherever used herein, means with respect to any
Servicer any one of the following events:
(i) with respect to the Master Servicer, failure to
advance or remit when due to the Trustee for deposit into
the Certificate Account any amount required to be advanced
or remitted under the terms of this Agreement on the date
required pursuant to the terms of this Agreement, which
failure is not cured by 11:00 a.m. (New York City time) on
the related Distribution Date; with respect to the Special
Servicer, failure to remit to the Master Servicer, as
required hereunder, any amount required to be remitted
under the terms of the Agreement within one (1) Business
Day of the date required pursuant to the terms of this
Agreement; or
(ii) except as set forth in clause (i) above, (x) such
Servicer shall fail to remit to the Master Servicer or
deposit in the Collection Account, Escrow Account or REO
Account, as applicable any amount required to be so
remitted or deposited under the terms of this Agreement
within one (1) Business Day of the date required pursuant
to the terms of this Agreement or (y) the Master Servicer
shall fail to make any Servicing Advance required to be
made by the Master Servicer under this Agreement within
one (1) Business Day of the date required pursuant to the
terms of this Agreement; or
(iii) such Servicer shall fail to timely deliver to the
Trustee or any other Servicer any report required to be so
delivered pursuant to the provisions of this Agreement and
such failure shall continue unremedied for a period of two
(2) Business Days following receipt by such Servicer of
notice from the Trustee or other Servicer of such failure;
or
(iv) any failure on the part of such Servicer duly to
observe or perform in any material respect any other of
the covenants or agreements on the part of such Servicer
contained in this Agreement which continues unremedied for
a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied,
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shall have been given to such Servicer by the Depositor,
the Trustee, or, in the case of the Special Servicer, the
Master Servicer or to such Servicer (with a copy to the
Depositor, the Trustee, the Directing Certificateholder,
and, in the case of the Special Servicer, the Master
Servicer) by the Holders of Certificates entitled to at
least 25% of the Voting Rights of any Class affected
thereby; or
(v) any breach of the representations and warranties
contained in Section 2.03(b) which materially and
adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a
period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been
given to such Servicer by the Depositor, the Trustee or,
in the case of the Special Servicer, the Master Servicer,
or to such Servicer (with a copy to the Depositor, the
Trustee, the Directing Certificateholder, and, in the case
of the Special Servicer, the Master Servicer) by the
Holders of Certificates entitled to at least 25% of the
Voting Rights of any Class affected thereby; or
(vi) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a
conservator or receiver or liquidator in any insolvency,
bankruptcy, 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 such Servicer and such decree or order shall have
remained in force undischarged, undismissed or unstayed
for a period of sixty (60) days; or
(vii) such Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to such
Servicer or of or relating to all or substantially all of
its property; or
(viii) such 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 insolvency or
reorganization statute, make an assignment for the benefit
of its creditors, or voluntarily suspend payment of its
obligations; or
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(ix) such Servicer shall fail to maintain a required
license to do business or service multifamily and
commercial mortgage loans in accordance with Accepted
Master Servicing Practices or Accepted Special Servicing
Practices, as applicable, and as provided in this
Agreement, in any jurisdiction where the Mortgaged
Properties or REO Properties are located, which failure
materially and adversely affects the interests of any
Class of Certificateholders and such failure shall
continue unremedied for a period of thirty (30) Business
Days after the date upon which such Servicer has been
notified or otherwise becomes aware of such failure (or
such extended period reasonably approved by the Trustee to
the extent such Servicer is diligently proceeding to cure
such failure and such extended period shall not have any
further material and adverse effect on such
Certificateholders' interest and none of the then-current
rating or ratings of all outstanding Classes of the
Certificates would be qualified (if applicable),
downgraded or withdrawn by any Rating Agency as a result
thereof); or
(x) except as otherwise permitted pursuant to the express
terms of this Agreement, such Servicer attempts to assign
its right to servicing compensation hereunder or a
Servicer attempts, without the prior written consent of
Trustee, to assign this Agreement or the servicing
responsibilities hereunder or any portion thereof; or
(xi) Fitch has given written confirmation to the Trustee
that with respect to any Servicer that maintaining the
Servicer in such capacity hereunder will cause a
downgrade, qualification or withdrawal of the ratings then
assigned to the Certificates; or
(xii) the Master Servicer or the Special Servicer is
removed from S&P's approved master servicer list, or
special servicer list, as the case may be, as the same are
published and revised from time to time and S&P shall not
reinstate the Master Servicer or the Special Servicer, as
applicable, in such applicable list within 60 days after
the Master Servicer or the Special Servicer, as
applicable, and the Trustee have been notified by S&P of
such removal; or
(xiii) the Master Servicer shall fail to maintain a rating
of "CMS3" or higher by Fitch or the Special Servicer shall
fail to maintain a rating of "CSS2" or higher by Fitch and
in
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either case such failure continues for a period of thirty
(30) days,
then, and in each and every such case, so long as an Event of Default shall
not have been remedied, the Trustee may, and at the written direction of the
Holders of Certificates entitled to, (a) in the case of an Event of Default
described in clauses (i)-(v) hereof, at least 25% of the Voting Rights of any
affected Class of Certificates, or (b) in the case of any Event of Default
described in clauses (ix) through (x) hereof, at least 25% of all of the
Voting Rights, subject to Section 3.10, terminate all of the rights and
obligations of such Servicer as such Servicer under this Agreement and in and
to the Mortgage Loans and the proceeds thereof; and with respect to clause
(xi) through (xiii) above the Trustee may terminate all the rights and
obligations of such Servicer without a vote by the Holders, subject to Section
3.10(b). From and after the receipt by such Servicer of such written notice,
or upon the occurrence of an Event of Default described in clauses (vi)-(viii)
hereof, all authority and power of such Servicer under this Agreement shall
pass to and be vested in the Master Servicer (or, if such Servicer is the
Master Servicer or the Special Servicer and the Master Servicer are the same
Person, the Trustee) pursuant to and under this Section, and, without
limitation, the Master Servicer or the Trustee, as applicable, is hereby
authorized and empowered to execute and deliver, on behalf of and at the
expense of such Servicer, 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. Each Servicer agrees
promptly (and in any event no later than ten (10) Business Days subsequent to
such notice) to provide the Master Servicer or Trustee, as applicable, with
all documents and records requested by it to enable it to assume such
Servicer's functions hereunder, and to cooperate with the Master Servicer or
the Trustee, as applicable, in effecting the termination of such Servicer's
responsibilities and rights hereunder. Any expenses incurred by the Trustee in
connection with the transfer of servicing functions shall be paid by the
terminated Servicer and shall not be an expense of the Trustee.
Section 10.02 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 10.01, the Trustee shall
be the successor in all respects to such Servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto and arising
thereafter placed on such Servicer by the terms and provisions hereof;
provided, however, that any failure to perform such duties or responsibilities
caused by such Servicer's failure to provide information or monies required by
Section 10.01 shall not be considered a default by the Trustee hereunder. The
Trustee shall not be liable for any of the representations and warranties of
the Master Servicer or the Special Servicer or for any losses incurred by such
Servicer hereunder. As compensation therefor, the Trustee shall be entitled to
the servicing fees and all funds relating to the Mortgage Loans which such
Servicer would have been entitled to charge to the Trust Fund if such Servicer
had continued to act hereunder (other than the Transferable Servicing Interest
as set forth in Section 4.12). Notwithstanding the above, the Trustee may, if
it shall be unwilling to so act, or shall, if it is unable to so act or such
Trustee does not meet the requirements set forth in Section 3.10(d), or if the
Holders of Certificates entitled to at least more than 66 2/3% of the Voting
Rights so request in writing to the Trustee or the Directing Certificateholder
so requests
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in writing to the Trustee, promptly appoint a successor pursuant to Section
3.10, which successor servicer shall, in any case, be reasonably acceptable to
the Directing Certificateholder. Pending appointment of a successor to the
Master Servicer or the Special Servicer hereunder, the Trustee shall act in
such capacity as hereinabove provided.
Section 10.03 Notification to Certificateholders.
(a) Upon any such termination pursuant to Section 10.01 above, any
appointment of a successor to the Master Servicer pursuant to Section 10.02,
or any appointment of a Replacement Special Servicer pursuant to Section 6.16,
the Trustee shall give prompt written notice thereof to Certificateholders and
each Rating Agency at their respective addresses appearing in the Certificate
Register.
(b) Not later than the later of 60 days after the occurrence of an
Event of Default, the Trustee shall transmit by mail to the Depositor, the
Rating Agencies and all Certificateholders notice of such occurrence, unless
such default shall have been cured or waived.
Section 10.04 Waiver of Events of Default.
The Holders representing at least 66 2\3% of the Voting Rights
evidenced by all Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clause (i), (ii) or (xi) of Section 10.01 may be waived only by
all of the Certificateholders. Upon any such waiver of an Event of Default,
such Event of Default shall cease to exist and shall be deemed to have been
remedied for every purpose hereunder, except that no Event of Default under
Section 10.01(i) shall be deemed so waived or cured unless and until the
Trustee has been reimbursed in full for all Advances which it may have made
hereunder. No such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereon except to the extent expressly
so waived. Notwithstanding any other provisions of this Agreement, for
purposes of waiving any Event of Default pursuant to this Section 10.04,
Certificates registered in the name of the Depositor or any Affiliate of the
Depositor shall be entitled to Voting Rights with respect to the matters
described above.
Section 10.05 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event
of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 10.01, shall have the right, in its own name and
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 (including the institution and prosecution of all judicial,
administrative and other proceedings and the filings of proofs of claim and
debt in connection therewith). Except as otherwise expressly provided in this
Agreement, no remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy, and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of any
Event of Default.
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ARTICLE XI
CONCERNING THE TRUSTEE
Section 11.01 Duties of the Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee contained in this
Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement (other than the Mortgage Loan
Files, the review of which is specifically governed by the terms of Article
II), shall examine them to determine whether they conform to the requirements
of this Agreement, if applicable. If any such instrument is found not to
conform to the requirements of this Agreement if applicable in a material
manner, the Trustee shall take such action as it deems appropriate to have the
instrument corrected. The Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Master Servicer or
the Special Servicer, and accepted by the Trustee in good faith, pursuant to
this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and
after the curing of all such Events of Default which may
have occurred, the duties and obligations of the Trustee
shall be determined solely by the express provisions of
this Agreement. The Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on
the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable for an error of
judgment made in good faith by a Responsible Officer or
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Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) The Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of
Certificates entitled to at least 25% of the Voting Rights
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Agreement.
(d) [RESERVED].
Section 11.02 Monitoring Certificateholders and Directing
Certificateholder.
(a) Each Monitoring Certificateholder is hereby deemed to have agreed
by virtue of its purchase of a Certificate to provide its name and address to
the Trustee and to notify the Trustee, the Master Servicer and the Special
Servicer of the transfer of any Certificate of a Monitoring Class, the
selection of a Directing Certificateholder or the resignation or removal
thereof. The Directing Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to notify the Trustee when such
Certificateholder is appointed Directing Certificateholder and when it is
removed or resigns. To the extent there is only one Monitoring
Certificateholder and it is also the Special Servicer, it shall be the
Directing Certificateholder.
(b) Within thirty (30) days of the Delivery Date, the Monitoring
Certificateholders (by notice from a majority of such Holders by Percentage
Interests to the Trustee, the Master Servicer and the Special Servicer) may
select a Directing Certificateholder for purposes of Sections 6.03 and 6.11 of
this Agreement.
(c) A "Monitoring Class" as of any time of determination shall be the
Class outstanding with the most subordinate interest in the Trust Fund having
at least 25% of its initial Class Balance.
(d) Once a Directing Certificateholder has been selected pursuant to
clause (b) above, each of the Master Servicer, the Special Servicer, the
Depositor, the Trustee and each other Certificateholder (or Certificate Owner,
if applicable) shall be entitled to rely on such selection unless a majority
of the Monitoring Certificateholders, by Certificate Balance, or such
Directing Certificateholder shall have notified the Trustee and each other
Monitoring Certificateholder, in writing, of the resignation of such Directing
Certificateholder or the selection of a new Directing Certificateholder. Upon
the resignation of a Directing Certificateholder, the Monitoring
Certificateholders (by notice from a majority of such Holders by Percentage
Interests to the Trustee, the Master Servicer and the Special Servicer) may
select a new Directing Certificateholder.
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(e) Until it receives notice to the contrary each of the Servicers
and the Trustee shall be entitled to rely on the most recent notification with
respect to the identity of the Monitoring Certificateholders and the Directing
Certificateholder.
Section 11.03 Powers of Attorney.
The Trustee shall execute and deliver any powers of attorney prepared
and delivered to it by the Master Servicer pursuant to Section 4.01(b) or the
Special Servicer pursuant to Section 6.03(b).
Section 11.04 Certification by Certificate Owners.
To the extent that under the terms of this Agreement, it is necessary
to determine whether any Person is a Certificate Owner, the Trustee shall make
such determination based on a certification of such Person, using the form
attached as Exhibit AA, which form is available on, and may be submitted
through, the Trustee's Website located at "xxx.xxxxxxx.xxx/xxxx". The Trustee
shall make such determination at the request of such Person or any Servicer.
The Trustee shall be entitled to rely conclusively on information it receives
from the Depository, Depository Participants, and indirect participating
brokerage firms for which a Depository Participant acts as agent, with respect
to the identity of a Certificate Owner.
Section 11.05 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 11.01:
(a) The Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers' 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;
(b) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(c) The Trustee shall not be under any obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or defend
any litigation hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; the Trustee shall not be required to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it; nothing contained herein shall, however,
relieve the Trustee of the obligation, upon the occurrence of an Event of
Default (which has not been cured or waived), to exercise such of the rights
and powers vested in it by
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this Agreement, and to use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs;
(d) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default which may have occurred,
the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by Holders of Certificates
entitled to at least 25% of the Voting Rights; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such expense or liability as a condition
to taking any such action. The reasonable expense of every such reasonable
examination shall be paid by the Master Servicer or, if paid by the Trustee,
shall be repaid by the Master Servicer upon demand;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, provided, however, that the Trustee shall remain liable for the
performance of all of its duties hereunder;
(g) The Trustee shall not be required to obtain a deficiency judgment
against any Mortgagor;
(h) For all purposes under this Agreement, the Trustee shall not be
required to take any action with respect to, or be deemed to have notice of
any Event of Default hereunder unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust Office,
and such notice references the Holders of the Certificates and this Agreement;
(i) The Trustee shall not be responsible for any act or omission of
the Certificate Registrar (unless the Trustee, an Affiliate of the Trustee, as
applicable, is acting as Certificate Registrar), the Master Servicer, the
Special Servicer, the Directing Certificateholder or the Depositor;
(j) Other than as expressly provided herein, the Trustee shall not be
required to monitor the activities of any Servicer and shall not be
responsible for the actions or omissions of any such Servicer.
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(k) Other than as obtained and maintained in its ordinary course of
business, the Trustee shall not be required to obtain any insurance coverage,
or give any bond or surety in respect of the execution of the Trust Fund
created hereby or the power granted hereunder.
Section 11.06 The Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than the
certificate of authentication therein, shall be taken as the statements of the
Depositor, the Master Servicer or the Special Servicer, as the case may be,
and the Trustee does not assume any responsibility for their correctness. The
Trustee does not make any representations as to the validity or sufficiency of
this Agreement (other than as to the due authorization, execution and delivery
thereof by it) or of the Certificates (other than as to the due authorization
and execution thereof by it) or of any Mortgage Loans or related document. The
Trustee shall not be accountable for the use or application by the Depositor
of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust Fund, or any
funds deposited in or withdrawn from the Certificate Account or any other
account by or on behalf of the Depositor, the Master Servicer or the Special
Servicer. The Trustee shall not be responsible for the accuracy or content of
any resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Depositor, the Master Servicer or the
Special Servicer, and accepted by the Trustee in good faith, pursuant to this
Agreement.
Section 11.07 Trustee May Own Certificates.
The Trustee, in its individual or any other capacity, may become the
owner or pledgee of Certificates with the same rights it would have if it were
not Trustee.
Section 11.08 Fees and Expenses of Trustee; Indemnification of Trustee.
(a) The Trustee shall be entitled to pay itself as reasonable
compensation from amounts remitted to the Certificate 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 on each Distribution Date in an aggregate
amount equal to 0.0021% per annum (the "Trustee Fee Rate") of the Stated
Principal Balance of each Mortgage Loan, calculated on the same basis as
interest on the related Mortgage Loan.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to indemnification out of the Certificate Account
from time to time for any loss, liability or expense (including without
limitation costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement) incurred in
connection with any act or omission on the part of the Trustee with respect to
this Agreement or the Certificates (other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence of the
Trustee in the performance of duties hereunder, or as may arise from a breach
of any representation or warranty of the Trustee set forth in Section 11.15 or
from any failure of the Trustee to perform its obligations set forth in
Section 11.01; provided, however, if the Trustee becomes Master Servicer, the
Trustee acting as Master Servicer shall not be entitled to indemnification
under any circumstance under which the Master Servicer is not entitled to
indemnification pursuant to Section 3.08(b)); provided, however, that with
respect to any third party claim:
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(i) the Trustee, shall have given the Master Servicer, the
Depositor, the Holders and, if in respect to a Specially
Serviced Mortgage Loan, the Special Servicer, written
notice thereof promptly after the Trustee shall have
knowledge thereof;
(ii) while maintaining control over its own defense, the
Trustee shall cooperate and consult fully with, as
applicable, the Master Servicer, the Depositor and, if in
the respect to a Specially Serviced Mortgage Loan, the
Special Servicer in preparing such defense; and
(iii) notwithstanding anything to the contrary in this
Section 11.08, the Trust Fund shall not be liable for
settlement of any such claim by the Trustee entered into
without the prior consent of the Trustee, as applicable,
the Master Servicer, the Depositor and, if in the respect
to a Specially Serviced Mortgage Loan, the Special
Servicer, which consent shall not be unreasonably
withheld.
Without in any way limiting the generality of the foregoing
indemnity, such indemnity shall specifically cover any loss, liability,
expense and costs of litigation and investigation, counsel fees, damages,
judgments and amounts paid in settlement incurred by the Trustee pursuant to
any federal, state or local environmental statute.
(c) The provisions of this Section 11.08 shall survive the
termination of this Agreement and the termination or resignation of the
Trustee.
Section 11.09 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a national banking
association or a corporation organized and doing business under the laws of
any state or the United States of America or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by federal or state authority. If such national banking association or
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section the combined capital and surplus of such
national banking association or corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The long-term debt obligations of the Trustee (or its corporate
parent) shall at all times be rated in a rating category by S&P and Fitch at
least equal to the rating one category below the highest rating assigned by
such Rating Agency to the then outstanding Certificates, but in no event lower
than an "investment grade" rating by such Rating Agency. In case 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 11.10. The corporation or national banking
association serving as Trustee may have normal banking and trust relationships
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with the Depositor and its Affiliates, the Master Servicer and its Affiliates
or the Special Servicer and its Affiliates.
Section 11.10 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and to all Certificateholders. Upon
receiving such notice of resignation from the Trustee, the Master Servicer,
with the Directing Certificateholder's reasonable consent, subject to Section
4.16(b), shall promptly appoint a successor trustee. The appointment of such
successor must be acceptable to the Depositor and by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee and to
the successor trustee. A copy of such instrument shall be delivered to the
Trustee and the Certificateholders, the Depositor and the Special Servicer by
the Master Servicer. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.09 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, or if at any time the Trustee fails duly to
observe or perform in any material respect any other of the covenants or
agreements on the part of the Trustee contained in this Agreement which
failure shall continue unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Trustee by the Depositor, the Master Servicer or by the
Holders of Certificates entitled to at least 25% of the Voting Rights of any
Class affected thereby, any of the Depositor, the Master Servicer or the
Holders of Certificates entitled to at least 25% of the Voting Rights of any
Class affected thereby may remove the Trustee and appoint a successor trustee
acceptable to the Depositor by written instrument, in duplicate, which
instrument shall be delivered to the Trustee so removed and to the successor
trustee. A copy of such instrument shall be delivered to the Trustee and the
Certificateholders, the Depositor and the Special Servicer by the Master
Servicer.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. A copy
of such instrument shall be delivered to the remaining Certificateholders and
the Special Servicer by the Master Servicer. If the termination pursuant to
this Section 11.10(c) is without cause, the Certificateholders who voted to
terminate the Trustee shall pay the expenses associated with such termination.
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(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 11.11.
Section 11.11 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 11.10
shall execute, acknowledge and deliver to the Master Servicer and to its
predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein; provided, however, that (i) the long-term
debt obligations of such successor trustee (or its corporate parent) shall be
rated in a rating category by S&P and Fitch at least equal to the rating one
category below the highest rating assigned by such Rating Agency to the then
outstanding Certificates, but in no event lower than an "investment grade"
rating by such Rating Agency, or each rating agency shall have confirmed in
writing that the appointment of such successor trustee will not result in a
downgrade, qualification (if applicable) or withdrawal of its then-current
rating on the Certificates. The predecessor trustee shall deliver to the
successor trustee all Mortgage Loan Files and related documents and statements
held by it hereunder (other than any Mortgage Loan Files at the time held by a
Custodian, which shall become the agent of any successor trustee hereunder),
and the Master Servicer and the predecessor trustee shall execute and deliver
such instruments and do such other things as may reasonably be required to
more fully and certainly vest and confirm in the successor trustee all such
rights, powers, duties and obligations, and to enable the successor trustee to
perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 11.09.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the successor trustee shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register.
Section 11.12 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
entity succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such entity shall be eligible
under the provisions of Section 11.09 or 11.11, 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 11.13 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or
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property securing the same may at the time be located, the Master Servicer and
the Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by the Trustee to act
as co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity, such title to the Trust Fund, or any part
thereof, and, subject to the other provisions of this Section 11.13, such
powers, duties, obligations, rights and trusts as the Master Servicer and the
Trustee may consider necessary or desirable. If the Master Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee hereunder shall be required to meet the
terms of eligibility as a successor trustee under Section 11.09 hereunder and
no notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 11.11 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 11.13 all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as Trustee hereunder or as successor to the Master Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article XI. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 11.13 shall not relieve the Trustee of its duties and responsibilities
hereunder.
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Section 11.14 Appointment of Custodians.
(a) The Trustee may, with the consent of the Master Servicer, appoint
one or more Custodians to hold all or a portion of the Mortgage Loan Files as
agent for the Trustee. Subject to the other provisions of this Article XI, the
Trustee agrees to enforce the terms and provisions of Section 2.02 hereof
against the Custodian for the benefit of the Certificateholders. Each
Custodian shall be a depository institution subject to supervision by federal
or state authority, shall have combined capital and surplus of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage Loan File and shall not be the Depositor, the Person who
originated the related Mortgage Loan, a Mortgage Loan Seller or any of their
respective Affiliates. Each Custodian shall be subject to the same obligations
and standard of care as are imposed on the initial Custodian hereunder in
connection with the retention of Mortgage Loan Files. The initial Custodian
and any custodian succeeding the initial Custodian shall be required to have a
blanket fidelity bond and an errors and omissions insurance policy in amounts
customary for custodians or, if such Custodian is the Trustee, such Custodian
may self-insure. The appointment of one or more Custodians shall not relieve
the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible for all acts and omissions of any Custodian; provided,
however, that the Trustee shall not be responsible for any delays or failures
in the performance of the Custodian due to acts beyond the Custodian's
control. Such acts shall include but not be limited to acts of God, strikes,
lockouts, riots, acts of war or terrorism, epidemics, nationalization,
expropriation, currency restrictions, governmental regulation superimposed
after the fact, fire, communication line failures, computer viruses,
earthquakes or other disasters.
(b) The Custodian may, from time to time and as appropriate for the
servicing, foreclosure or payoff of any Mortgage Loan, but subject to the
restrictions therein provided, upon receipt by the Custodian of a Request for
Release and Receipt of Documents provided by any Servicer substantially in the
form set forth on Exhibit Y, release to such Servicer the related Mortgage
Loan File or the documents from a Mortgage Loan File set forth in such
request. Each Servicer acknowledges that during all times that any Mortgage
Loan File or any contents thereof are in the physical possession of such
Servicer, or are in transit to such Servicer from the Custodian, or are in
transit from such Servicer to the Custodian, such Mortgage Loan File and the
documents contained therein shall be held by the Servicer for and on behalf of
the Trustee and shall be and remain the sole and exclusive property of the
Trust Fund. For so long as any Mortgage Loan File or any document taken
therefrom is in any Servicer's physical possession, the same shall be stored
overnight in a one and one-half-hour rated fire-resistant filing cabinet or
the equivalent.
(c) Subject to any state law requirement or court order, each
Servicer hereby agrees to return to the Custodian each and every document
previously requested from the Mortgage Loan File when such Servicer's need
therefor in connection with the foreclosure or servicing of the related
Mortgage Loan no longer exists or upon request of the Trustee, unless the
related Mortgage Loan shall be liquidated or paid in full, in which case, upon
receipt of the Request for Release and Receipt of Documents from any Servicer,
the Custodian shall be authorized to release the related Servicer's prior
request form, together with all other documents still retained by the
Custodian with respect to such Mortgage Loan, to such Servicer.
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(d) Upon receipt of the payment in full of any Mortgage Loan, or upon
the receipt by the Master Servicer or Special Servicer of a notification that
payment in full will be escrowed in a manner customary for such purposes, such
Servicer shall promptly deliver to the Trustee and the Custodian a Request for
Release and Receipt of Documents substantially in the form set forth on
Exhibit Y requesting delivery to such Servicer of the Mortgage Loan File for
such Mortgage Loan and indicating that all amounts received in connection with
such payment that are required to be deposited in the related subaccount of
the Collection Account or Escrow Account or the related REO Account pursuant
to Section 4.02, Section 4.06 or Section 6.06 hereof have been or will be so
deposited.
(e) The Special Servicer shall forward to the Custodian original
documents evidencing an assumption, modification, consolidation or extension
of any Mortgage Loan entered into by such Servicer in accordance with this
Agreement within ten (10) Business Days of the execution thereof and the
delivery of such instrument to such Servicer; provided, however, that such
Servicer may, in lieu thereof, provide the Custodian with a certified true
copy of any such document submitted for recordation within five (5) Business
Days of its execution, in which event such Servicer shall provide the
Custodian with the original of any document submitted for recordation or a
copy of such document certified by the appropriate public recording office to
be a true and complete copy of the recorded original within five (5) Business
Days of receipt thereof by such Servicer.
(f) Upon any payment in full of a Mortgage Loan, the Special Servicer
may execute an instrument of satisfaction regarding the related Mortgage and
any other related Mortgage Loan Documents, which instruments of satisfaction
shall be recorded by the Special Servicer if required by applicable law and
shall be delivered to the Person entitled thereto, it being understood and
agreed that all reasonable expenses incurred by the Special Servicer in
connection with such instruments of satisfaction shall be reimbursed to the
Special Servicer by the Master Servicer, as a Servicing Advance, pursuant to
the terms of this Agreement. The Special Servicer shall notify the Custodian
and the Master Servicer of the execution of an instrument of satisfaction
described above as soon as practicable.
Section 11.15 Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants to the Master Servicer and
the Depositor, as of the Delivery 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.
(ii) The execution and delivery of this Agreement by the
Trustee, and the performance and compliance with the terms
of this Agreement by the Trustee, will not violate the
Trustee's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach
of, any material agreement or other instrument to which it
is a
154
party or which is applicable to it or any of its assets;
no license, consent, approval, authorization or order of
any court or governmental agency is required for the
execution, delivery and performance by the Trustee of this
Agreement, except as have been previously obtained, except
for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the
actual performance by the Trustee of its obligations under
this Agreement, and which, if not obtained would not have
a materially adverse effect on the ability of the Trustee
to perform its obligations hereunder.
(iii) The Trustee has the full power and authority to
enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution,
delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by the Master Servicer, the Special Servicer
and the Depositor, constitutes a valid, legal and binding
obligation of the Trustee, enforceable against the Trustee
in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution
and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not
constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith
and reasonable judgment, is likely to affect materially
and adversely either the ability of the Trustee to perform
its obligations under this Agreement or the financial
condition of the Trustee.
(vi) No litigation is pending or, to the best of the
Trustee's knowledge, threatened against the Trustee which
would prohibit the Trustee from entering into this
Agreement or, in the Trustee's good faith reasonable
judgment, is likely to materially and adversely affect
either
155
the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the
Trustee.
Section 11.16 SEC Filings.
Based upon information furnished to it by the Master Servicer and the
Depositor, the Trustee will prepare and file with the Securities and Exchange
Commission on Forms 8-K and 10-K on behalf of the Trust Fund the reports
distributed to the Certificateholders pursuant to the first paragraph of
Section 7.03(a). No later than January 30, 2002, the Trustee shall file a Form
15 Notice of Suspension of Duty to File Reports pursuant to Sections 13 and
15(d) of the Securities Exchange Act of 1934, with respect to the
Certificates. The Trustee shall have no responsibility to file any items other
than those specified in this Section 11.16.
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ARTICLE XII
TERMINATION
Section 12.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
(a) The respective obligations and responsibilities under this
Agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee (other than the obligations of the Trustee to provide for and make
payments to Certificateholders as hereafter set forth and any indemnification
provision) shall terminate upon payment to the Certificateholders and the
deposit of all amounts held by or on behalf of the Master Servicer and the
Trustee and required hereunder to be so paid or deposited on the Distribution
Date following the earlier to occur of (i) the purchase of all the Mortgage
Loans by the holders of an aggregate Percentage interest in excess of 50% of
the Most Subordinate Class of Certificates, any holder of a Class R-I
Certificate, the Master Servicer and (to the extent all of the remaining
Mortgage Loans are being serviced by the Special Servicer) the Special
Servicer (in that order) at a price equal to the greater of (a) the aggregate
fair market value of all the Mortgage Loans (other than REO Property) included
in the Trust Fund, plus the appraised value of each REO Property, if any,
included in the Trust Fund, as determined by the Depositor and (b) the
aggregate Class Balance of all the Certificates plus accrued and unpaid
interest thereon together with any unreimbursed Advances (including any
interest thereon at the Advance Rate) and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund; provided, however, that in no event shall the
trust created hereby continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
Any Person which shall make an election to purchase all of the
Mortgage Loans remaining in the Trust Fund pursuant to clause (i) of the
preceding paragraph shall do so by giving written notice to the Trustee and
the Depositor no later than 60 days prior to the anticipated date of purchase;
provided, however, that no such election to purchase all of the Mortgage Loans
remaining in the Trust Fund pursuant to clause (i) above shall be made unless
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund at the time of such election is less than 1% of the aggregate
Cut-off Date Balance of the Mortgage Loans. Any Person which shall make the
election described in the previous sentence shall also provide to the Trustee
an opinion of independent counsel, addressed to the Trustee, to the effect
that the resulting termination will be a "qualified liquidation" under Section
860F(a)(4) of the Code with respect to REMIC I, REMIC II, and REMIC III.
Notice of any termination shall be given promptly by any such Person
electing to terminate by letter to Certificateholders mailed (a) in the event
such notice is given in connection with the purchase of the Mortgage Loans and
each REO Property, not earlier than the 60th day and not later than the 30th
day of the month next preceding the month of the proposed final distribution
on the Certificates or (b) otherwise during the month of such final
distribution on or before the Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made upon presentation and
surrender of Certificates at the office of the Certificate Registrar therein
157
designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificates
at the office of the Certificate Registrar. Unless it is acting as Certificate
Registrar, such Person shall give such notice to the Certificate Registrar at
the time such notice is given to Certificateholders. In the event such notice
is given in connection with the Master Servicer's purchase of all of the
Mortgage Loans remaining in the Trust Fund, the Master Servicer shall deposit
in the Certificate Account not later than the last Business Day of the
Collection Period relating to the Distribution Date on which the final
distribution on the Certificates is to occur an amount in immediately
available funds equal to the above-described purchase price. Upon receipt of
an Officers' Certificate to the effect that such final deposit has been made,
the Trustee shall release or cause the Custodian to release to the Master
Servicer the Mortgage Loan Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments necessary to
effectuate transfer of the Mortgage Loans.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall
distribute to each Certificateholder so presenting and surrendering its
Certificates (i) the amount otherwise distributable on such Distribution Date
in accordance with Section 7.02 in respect of the Certificates so presented
and surrendered, if not in connection with the Master Servicer's purchase of
all of the Mortgage Loans, or (ii) such Certificateholder's Percentage
Interest of that portion of the Available Distribution Amount for such
Distribution Date allocable to payments on the Class of Certificates so
presented and surrendered as described below, if in connection with the Master
Servicer's purchase of all of the Mortgage Loans. If the Trust Fund is to
terminate in connection with the Master Servicer's purchase of all of the
Mortgage Loans, the Available Distribution Amount for the final Distribution
Date shall be allocated in the order set forth in Section 7.02.
(b) Notwithstanding anything contained in Section 12.01(a) to the
contrary, following the date on which the aggregate Certificate Balance of the
Certificates (other than the Private Certificates) is reduced to zero and any
Realized Losses previously allocated to the Certificates (other than the
Private Certificates) have been reimbursed, the Sole Certificateholder(s)
shall have the right to exchange all of the Private Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (i) of Section 12.01(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(s) elect(s) to exchange
all of the Certificates for all of the Mortgage Loans and each REO Property
remaining in REMIC I in accordance with the preceding sentence, such Sole
Certificateholder(s), not later than the Distribution Date on which the final
distribution on the Private Certificates is to occur, shall deposit in the
Collection Account an amount in immediately available funds equal to all
amounts then due and owing to the Depositor, the Master Servicer, the Special
Servicer and the Trustee hereunder that may be withdrawn from the Collection
Account or that may be withdrawn from the Distribution Account but only to the
extent that 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 Distribution Account on such Master Remittance Date from
the Collection Account. Upon confirmation that such final deposits have been
made and following the surrender of all the Private Certificates on the
Distribution Date on which the final distribution on the Private Certificates
is to occur and upon receipt of an Officer's Certificate to the effect
158
that such final transfer has been made, the Trustee shall release or cause the
Custodian to release to the Sole Certificateholder(s) or any designee thereof,
the Mortgage Loan Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments necessary to effectuate
transfer of the Mortgage Loans and REO Properties remaining in the Trust Fund.
159
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment.
(a) This Agreement may be amended from time to time by the Depositor,
the Master Servicer, the Special Servicer and the Trustee, without the consent
of any of the Certificateholders, (i) to cure any ambiguity, (ii) to correct
or supplement any provisions herein which may be inconsistent with any other
provisions herein, (iii) to make any other provisions with respect to matters
or questions arising hereunder which shall not be inconsistent with the
provisions hereof, (iv) to relax or eliminate any requirement hereunder
imposed by the REMIC Provisions if the REMIC Provisions are amended or
clarified such that any such requirement may be relaxed or eliminated; or (v)
if such amendment, as evidenced by an Opinion of Counsel delivered to the
Depositor, the Master Servicer, the Special Servicer and the Trustee, is
reasonably necessary to comply with any requirements imposed by the Code or
any successor or amendatory statute or any temporary or final regulation,
revenue ruling, revenue procedure or other written official announcement or
interpretation relating to federal income tax laws or any proposed such action
which, if made effective, would apply retroactively to the Trust Fund at least
from the effective date of such amendment, or would be necessary to avoid the
occurrence of a prohibited transaction or to reduce the incidence of any tax
that would arise from any actions taken with respect to the operation of the
Trust Fund; provided that such action (except any amendment described in
clause (v) above) shall not, as evidenced by an Opinion of Counsel delivered
to the Depositor, the Master Servicer, the Special Servicer and the Trustee,
adversely affect in any material respect the interests of any
Certificateholder; provided further, however, that an Opinion of Counsel
(other than as to REMIC tax matters) shall not be required if each Rating
Agency then rating the Certificates shall have confirmed in writing that
immediately following such amendment such Rating Agency will not downgrade,
qualify (if applicable) or withdraw its then-current rating on the
Certificates as a result of such amendment.
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates affected thereby entitled to at least
51% of the Voting Rights for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of Certificates;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in (i) without the
consent of the Holders of all Certificates of such Class, (iii) lower in any
manner the standard of the Accepted Master Servicing Practices or the Accepted
Special Servicing Practices, without the consent of all the Holders of all
Certificates then outstanding, or (iv) reduce the aforesaid percentages of
Certificates the Holders of which are required to consent to any such
amendment without the consent of the Holders of all Certificates then
outstanding. Notwithstanding any other provision of this Agreement, for
purposes of the giving or withholding of consents pursuant to this Section
13.01, Certificates registered in the name of the Depositor, the Master
Servicer, the Special Servicer or any Affiliate of the Depositor, the Master
Servicer or the
160
Special Servicer shall be entitled to Voting Rights with respect to matters
described in clauses (i) and (ii) of this paragraph affecting such
Certificates.
(c) Notwithstanding any contrary provision of this Agreement, none of
the Trustee, the Master Servicer and the Special Servicer shall consent to any
amendment to this Agreement unless each of the Trustee, the Master Servicer
and the Special Servicer shall have obtained or been furnished with an Opinion
of Counsel to the effect that such amendment or the exercise of any power
granted to the Master Servicer, the Special Servicer or the Trustee in
accordance with such amendment will not result in the imposition of a tax on
the Trust Fund pursuant to the REMIC Provisions or cause REMIC I, REMIC II or
REMIC III to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement prepared by the Person requesting such amendment
describing the amendment to each Certificateholder and the Underwriters and a
copy of such amendment to each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 13.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 13.01(a) or (c) shall be borne by the Person seeking the related
amendment.
(h) The Trustee shall not enter into or consent to any amendment of
this Agreement unless the conditions set forth in clause (a) or (b) above are
satisfied with respect to such amendment.
Section 13.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer or the Special Servicer at the expense of the
Trust Fund on direction by the Trustee, but only upon direction accompanied by
an Opinion of Counsel (which opinion shall be an expense of the Trust Fund) to
the effect that such recordation materially and beneficially affects the
interests of the Certificateholders; provided, however, that the Trustee shall
have no obligation or responsibility to determine whether any such recordation
of this Agreement is required.
161
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
Section 13.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up of
the Trust Fund, nor otherwise affect the rights, obligations and liabilities
of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any
Mortgage Loan, unless, with respect to any suit, action or proceeding upon or
under or with respect to this Agreement, such Holder previously shall have
given to the Trustee a written notice of an Event of Default, or of a default
by the Depositor in the performance of any of its obligations hereunder, and
of the continuance thereof, as hereinbefore provided, and unless also the
Holders of Certificates entitled to at least 25% of the Voting Rights shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to
enforce any right under this Agreement, except in the manner herein provided
and for the equal, ratable and common benefit of all Certificateholders. For
the protection and enforcement of the provisions of this Section, each and
every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
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Section 13.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal 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 13.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to
have been duly given if (a) personally delivered, (b) mailed by registered
mail, postage prepaid, return receipt requested, and received by the
addressee, (c) sent by express courier delivery service and received by the
addressee, or (d) transmitted by telex, telecopy or telegraph and confirmed by
a writing delivered by means of (a), (b) or (c), to: (i) in the case of the
Depositor, X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Alto, Vice
President, telecopy number: (000) 000-0000; (ii) in the case of First Union
National Bank as Special Servicer, First Union National Bank, NC 1075, 0000
Xxxxxxxx Xxxxx - XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp. Mortgage Pass-Through
Certificates, Series 2001-CIBC2, telephone number (000) 000-0000; telecopy
number (000) 000-0000; (iii) in the case of the Master Servicer, Midland Loan
Services, Inc., 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx,
Attention: Chief Executive Officer, telephone number: (000) 000-0000, telecopy
number: (000) 000-0000; (iv) in the case of the Trustee, Xxxxx Fargo Bank
Minnesota, N.A., at the Corporate Trust Office, telecopy number: (415)
391-2949; (v) in the case of the Rating Agencies, (A) Fitch, Inc., Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage-Backed
Securities Group, telephone number: (000) 000-0000, telecopy number: (212)
635-0295; and (B) S&P, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Commercial Mortgage Backed Securities Group, telephone number: (000) 000-0000,
telecopy number: (000) 000-0000; or as to each such Person such other address
as may hereafter be furnished by such Person to the parties hereto in writing.
Any communication required or permitted to be delivered to a Certificateholder
shall be sent to the address of such Holder as shown in the Certificate
Register.
Section 13.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 13.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement
shall constitute a sale and not a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be
163
established pursuant to the terms of this Agreement. The Depositor also
intends and agrees that, in such event, (i) the Depositor shall be deemed to
have granted to the Trustee (in such capacity) a first priority security
interest in the Depositor's entire right, title and interest in and to the
assets comprising the Trust Fund, including without limitation, the Mortgage
Loans, all principal and interest received or receivable with respect to the
Mortgage Loans (other than loan principal and interest payments due and
payable prior to the Cut-off Date and Principal Prepayments received prior to
the Cut-off Date), all amounts held from time to time in the Certificate
Account, the Collection Account, and REO Account and all reinvestment earnings
on such amounts, together with all of the Depositor's right, title and
interest in and to the proceeds of any title, hazard or other Insurance
Policies related to such Mortgage Loans and (ii) this Agreement shall
constitute a security agreement under applicable law. The Depositor shall
cause to be filed, as a precautionary filing, a Form UCC-1 in all appropriate
locations in the State of Delaware promptly following the initial issuance of
the Certificates, and the Trustee shall file continuation statements thereto
at such office, in each case within six months prior to the fifth anniversary
of the immediately preceding filing. The Depositor shall cooperate in a
reasonable manner with the Trustee in preparing and filing such continuation
statements. This Section 13.07 shall constitute notice to the Trustee pursuant
to any of the requirements of the New York Uniform Commercial Code.
Section 13.08 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of and be enforceable by each Servicer, the Trustee and the
respective successors and assigns thereof and shall inure to the benefit of
the Certificateholders.
(b) Except as provided in Section 3.04, this Agreement shall not be
assigned, pledged or hypothecated by any Servicer to a third party without the
prior written consent of the Trustee and subject to Section 3.06.
Section 13.09 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 13.10 Notices and Information to Rating Agencies and the
Directing Certificateholder.
(a) The Trustee shall use its best efforts promptly to provide notice
to the Rating Agencies and the Directing Certificateholder with respect to
each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default;
(iii) the resignation or termination of the Master
Servicer, the Special Servicer or the Trustee;
164
(iv) the repurchase of Mortgage Loans pursuant to Section
2.04(a);
(v) any other information the Rating Agencies may
reasonably request consistent with the Trustee's duties
hereunder;
(vi) the final payment to any Class of Certificateholders;
and
(vii) any change in the location of the Certificate
Account.
(b) The Master Servicer shall use its best efforts promptly to
provide notice to the Rating Agencies and the Directing Certificateholder with
respect to any determination by the Master Servicer that an Advance with
respect to a Mortgage Loan constitutes (or would, if made, constitute) a
Nonrecoverable Advance under this Agreement.
(c) Each of the Master Servicer and the Special Servicer shall
promptly furnish to the Rating Agencies and the Directing Certificateholder
copies of the following:
(i) each of its annual statements as to compliance
described in Section 3.02,
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.03,
(iii) if requested, the most current rent rolls and
financial statements in its possession available from time
to time with respect to any Mortgaged Property or any
Mortgagor,
(iv) Upon request, CMSA Comparative Financial Status
Report, CMSA Delinquent Loan Status Report, CMSA REO
Status Report, Historical Loan Modification Report, CMSA
Historical Liquidation, and CMSA Servicer Watch List
reported pursuant to Sections 4.09, 4.10 and 6.09, and
(v) any other information the Rating Agencies may
reasonably request consistent with the Servicer's
servicing duties hereunder.
Section 13.11 Certificateholders' List.
Upon written request of the Directing Certificateholder, the Trustee
shall provide a list of each Certificateholder and, to the extent known to the
Trustee and solely based on the certification of Certificate Owners, each
Certificate Owner.
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Section 13.12 Protection of Assets.
(a) Except for transactions and activities entered into in connection
with the transaction that is the subject of this Agreement, the Trust Fund is
not authorized and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell
assets; or
(3) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trust Fund or initiate any other
form of insolvency proceeding until after all distributions on the
Certificates have been made.
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IN WITNESS WHEREOF, the parties hereto have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, in each case as of the day and year first above written.
X.X. XXXXXX XXXXX COMMERCIAL
MORTGAGE SECURITIES CORP.,
Depositor
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------
Title: Vice President
----------------------------
MIDLAND LOAN SERVICES, INC.,
Master Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------
Title: Senior Vice President
----------------------------
FIRST UNION NATIONAL BANK,
Special Servicer
By: /s/ Xxxxxx X. XxXxxxxxx
--------------------------------------
Name: Xxxxxx X. XxXxxxxxx
----------------------------
Title: Vice President
----------------------------
XXXXX FARGO BANK MINNESOTA, N.A.,
Trustee
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
----------------------------
Title: Vice President
----------------------------
000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK)
On the 25th day of July, 2001 before me, a notary public in and for
said State, personally appeared Xxxxxx X. Xxxxx known to me to be a Vice
President of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., the
corporation that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxxx Xxxxxx
----------------------------
Notary Public
[Notarial Seal]
STATE OF MISSOURI )
) ss.:
COUNTY OF JAKCSON )
On the 20th day of July, 2001 before me, a notary public in and for
said State, personally appeared Xxxxxxxx X. Xxxxxx known to me to be Senior
Vice President of Midland Loan Services, Inc., the corporation that executed
the within instrument, and also known to me to be the person who executed it
on behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxxx
----------------------------
Notary Public
[Notarial Seal]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 25th day of July, 2001, before me, a notary public in and for
said State, personally appeared Xxxxxx X. XxXxxxxxx known to me to be Vice
President of First Union National Bank, the national banking association that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said national banking association, and acknowledged to
me that such limited liability company executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/
----------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of July, 2001 before me, a notary public in and for
said State, personally appeared Xxxx X. Xxxx known to me to be Vice President
of Xxxxx Fargo Bank Minnesota, N.A., the national banking association that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said national banking association, and acknowledged to
me that such national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/
----------------------------
Notary Public
[Notarial Seal]
EXHIBIT A
FORM OF CERTIFICATE
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York Corporation ("DTC"), to the Trustee or
its agent for registration of transfer, exchange, or payment, and any
certificate 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.]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").]
[TRANSFER OF THIS CLASS [ ] CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH HEREIN. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER OF THIS CLASS [ ]
CERTIFICATE TO A DISQUALIFIED ORGANIZATION (AS DEFINED HEREIN) OR AN AGENT OF
A DISQUALIFIED ORGANIZATION OR TO A NON-UNITED STATES PERSON (AS DEFINED
HEREIN), SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR
ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.]
EACH HOLDER OF A CERTIFICATE IS DEEMED TO REPRESENT THAT NEITHER MGT NOR ANY
OF ITS AFFILIATES HAS DISCRETIONARY AUTHORITY OR CONTROL WITH RESPECT TO THE
INVESTMENT OF THE PLAN'S ASSETS INVESTED IN THE RELATED CERTIFICATE, OR GIVES
INVESTMENT ADVICE WITH RESPECT TO THE INVESTMENT OF SUCH ASSETS.
[THIS CLASS [ ] CERTIFICATE IS SUBORDINATE TO THE CLASS [ ] CERTIFICATE OF
THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.]
A-1
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "1933 ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 8.02(b)(i), (ii), (iii) or (iv) OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.]
[NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED, OR SECTION 4975 OF THE CODE OR TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN
OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH
THE PROCEDURES DESCRIBED IN SECTION 8.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.]
[For Class A1, Class A2, Class A3, Class X, Class B, Class C, Class
D, Class E, and Class F Certificates only: No transfer of a [Class A1] [Class
A2] [Class A3][Class X] [Class B] [Class C] [Class D] [Class E] [Class F]
Certificate or any interest therein shall be made to (A) any employee benefit
plan or other retirement arrangement, including individual retirement accounts
and annuities, Xxxxx plans and collective investment funds and separate
accounts or other entities in which such plans, accounts or arrangements are
invested, that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Code (each, a "Plan") or
(B) any Person who is directly or indirectly purchasing any such Certificate
or interest therein on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan, unless such transferee qualifies as an accredited
investor as defined in Rule 501(a)(1) of Regulation D under the Securities Act
and either (1) at the time of such transfer, the Certificates are rated in one
of the top four rating categories by at least one rating agency, or (2) the
purchaser is an insurance company general account that is eligible for, and
satisfies all of the requirements of, Sections I and III of Prohibited
Transaction Class Exemption 95-60. Each Person who acquires a [Class A1]
[Class A2] [Class A3] [Class X] [Class B] [Class C] [Class D] [Class E] [Class
F] Certificate shall be deemed to have certified that the foregoing conditions
are satisfied.
[For Class G Class H, Class J, Class K, Class L, Class M and Class NR
Certificates only: No transfer of a [Class G] [Class H] [Class J] [Class K]
[Class L] [Class M] [Class NR] Certificate or any interest therein shall be
made to (A) any employee benefit plan or other retirement plan or arrangement
(including individual retirement accounts and annuities and Xxxxx plans) that
is subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or to Section 4975 of the Code, or of any collective investment
fund or separate account or other entity in which such plans, accounts or
arrangements are invested (each, a "Plan") or (B) any Person who is directly
or indirectly purchasing the [Class G] [Class H] [Class J] [Class K] [Class L]
[Class M] [Class NR] Certificate or interest therein on
A-2
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan,
unless the Trustee receives: (i) a representation from the prospective
transferee of such [Class G] [Class H] [Class J] [Class K] [Class L] [Class M]
[Class NR] Certificate, acceptable to and in form and substance satisfactory
to the Trustee, to the effect that such prospective transferee is not a Plan
or a person investing on behalf of or using the assets of a Plan to effect
such transfer; (ii) if the purchaser is an insurance company, a representation
that the purchaser is an insurance company which is purchasing such [Class G]
[Class H] [Class J] [Class K] [Class L] [Class M] [Class NR] Certificate with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of the Prohibited Transaction Class Exemption 95-60
(60 Fed. Reg. 35925, July 12, 1995) ("PTCE 95-60")) and that the purchase and
holding of such [Class G] [Class H] [Class J] [Class K] [Class L] [Class M]
[Class NR] Certificate by such prospective transferee is eligible for and
meets all of the requirements of relief under Sections I and III of PTCE
95-60; or (iii) an opinion of counsel satisfactory to the Trustee that the
purchase and holding of such [Class G] [Class H] [Class J] [Class K] [Class L]
[Class M] [Class NR] Certificate by a Plan, any person acting on behalf of a
Plan or using a Plan's assets will not result in the assets of the Trust Fund
being deemed to be "plan assets" and subject to the prohibited transaction
requirements of ERISA and the Code and will not subject the Trustee to any
obligation in addition to those undertaken in the Agreement. Such
representation as described above in (i) or (ii) shall be deemed to have been
made to the Trustee by the prospective transferee's acceptance of this [Class
G] [Class H] [Class J] [Class K] [Class L] [Class M] [Class NR] Certificate.
In the event that such representation is violated or any attempt to transfer
to a Plan or person acting on behalf of a Plan or using a Plan's assets is
attempted without such opinion of counsel, such attempted transfer or
acquisition shall be void and of no effect.]
[For Class R-I, Class R-II and Class R-III Certificates only: No
[Class R-I] [Class R-II] and [Class R-III] Certificate shall be transferred to
(A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts or other entities in which such plans,
accounts or arrangements are invested, that is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975
of the Code (each, a "Plan") or (B) any Person who is directly or indirectly
purchasing any such Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, unless the prospective
transferee provides the Certificate Registrar with a certification of facts
and an Opinion of Counsel which establish to the satisfaction of the
Certificate Registrar that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or cause the Master Servicer,
the Certificate Registrar, the Trustee to be deemed a fiduciary of such Plan
or result in the imposition of an excise tax under Section 4975 of the Code.
In the absence of its having received the certification and Opinion of Counsel
contemplated by the preceding sentence, the Certificate Registrar shall
require the prospective transferee of any [Class R-I] [Class R-II] [Class
R-III] Certificate to certify, that it is neither (A) a Plan nor (B) a Person
who is directly or indirectly purchasing any such Class Certificates on behalf
of, as name fiduciary of, as trustee of, or with assets of a Plan.
A-3
CLASS [ ] [PRIVATE][REGULATION S GLOBAL]
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund
consisting primarily of a pool of fixed rate mortgage loans formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., SERIES 2001-CIBC2
[Original Class Balance][Initial Aggregate Notional
Amount]: $[_________]
Date of Pooling and Servicing Agreement: [Initial [Certificate
July 1, 2001 Balance][Notional Amount] of this
Class [ ] Certificate as of the
Delivery Date: $____________]
Cut-off Date: July 1, 2001
Delivery Date: July [o], 2001 [Percentage Interest: ____%]
First Distribution Date: July [o], 2001 Pass-Through Rate:
[__%][Variable]
Master Servicer: Midland Loan Trustee: Xxxxx Fargo Bank
Services, Inc. Minnesota, N.A.
No. [__] [ISIN No.: XX000000 _______]
CUSIP No.: 617059 [___]
A-4
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP. OR ANY OF ITS AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY
BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, A PORTION OF THE INTEREST
ACCRUED IN RESPECT OF THIS CERTIFICATE FROM TIME TO TIME MAY NOT BE PAYABLE
CURRENTLY BUT MAY INSTEAD BE ADDED TO THE CERTIFICATE BALANCE HEREOF AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [_____________________________________] is the
registered owner of the Percentage Interest evidenced by this Class [ ]
Certificate (obtained by dividing the initial Certificate Balance of this
Class [ ] Certificate as of the Delivery Date (as such Certificate Balance may
be adjusted from time to time for transfers) by the initial Class Balance of
the Class [ ] Certificates) in that certain beneficial ownership interest
evidenced by all the Class[ ] Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as of July 1, 2001 (the
"Agreement"), among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as
depositor (hereinafter called the "Depositor", which term includes any
successor entity under the Agreement), Midland Loan Services, Inc., as master
servicer (the "Master Servicer", which term includes any successor entity
under the Agreement) and special servicer (the "Special Servicer", which term
includes any successor entity under the Agreement), Xxxxx Fargo Bank
Minnesota, N.A., as trustee (the "Trustee", which term includes any successor
entity under the Agreement) a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class [ ] Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on a Class [ ]
Certificate will be made by the Trustee pursuant to the Agreement.
Any distribution to the Holder of this Certificate [in reduction of
the Certificate Balance hereof] is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such distribution is made upon this Certificate.
A-5
The Class [ ] Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class [ ] Certificates are exchangeable for new Class [ ] Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Certificates of the
same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
[No transfer of any Class [ ] Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration or qualification and in connection with the transfer or issuance
of a Definitive Certificate, then the Certificate Registrar shall require, in
order to assure compliance with such laws, receipt of: (a) if such transfer is
of a Class [ ] Certificate and is purportedly made in reliance on Rule 144A
under the 1933 Act, a certificate from the transferee desiring to effect such
transfer substantially in the form of Exhibit D-1 to the Agreement; (b) if
such transfer is of a Class [ ] Certificate and is purportedly made in
reliance on Regulation S under the 1933 Act, a certificate from the transferee
desiring to effect such transfer substantially in the form of Exhibit D-2 to
the Agreement; and (c) in all other cases, (i) except as otherwise set forth
in the Agreement, an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer may be made without such
registration or qualification (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the
Special Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), (ii) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form of Exhibit C to the Agreement
and (iii) a certificate from such Certificateholder's prospective transferee
substantially in the form of Exhibit E to the Agreement. None of the
Depositor, the Trustee or the Certificate Registrar is obligated to register
or qualify the Class [ ] Certificates under the 1933 Act or any other
securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class [ ] Certificate without
registration or qualification. Any Class [ ] Certificateholder desiring to
effect such a transfer shall, and does hereby agree to, indemnify the Trustee,
the Certificate Registrar and the Depositor against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.]
[No transfer of any Class R-[ ] Certificate shall be made to a
Non-United States Person. Notwithstanding anything to the contrary contained
herein, prior to registration of any transfer, sale or other disposition of a
Class R-[ ] Certificate, the Certificate Registrar shall have received (i) an
affidavit from the proposed transferee substantially in the form of Exhibit
F-1 to the Agreement, to the effect that, among other things, (A) such
transferee is not a Disqualified
A-6
Organization or an agent (including a broker, nominee or middleman) of a
Disqualified Organization, (B) such transferee is not a Non-United States
Person, (C) such transferee has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as the
Class R-[ ] Certificate remains outstanding, and (D) no purpose of such
proposed transfer, sale or other disposition of the Class R-[ ] Certificate is
or will be to impede the assessment or collection of any tax, and (ii) a
certificate from the transferor substantially in the form of Exhibit F-2 to
the Agreement, to the effect that, among other things, no purpose of such
proposed transfer, sale or other disposition of the Class R-[ ] Certificate is
or will be to impede the assessment or collection of any tax. Notwithstanding
the registration in the Certificate Register of any transfer, sale or other
disposition of a Class R-[ ] Certificate to a Disqualified Organization or an
agent (including a broker, nominee or middleman) of a Disqualified
Organization or to a Non-United States Person, such registration shall be
deemed to be of no legal force or effect whatsoever and such Person shall not
be deemed to be a Certificateholder for any purpose hereunder, including, but
not limited to, the receipt of distributions in respect of such Class R-[ ]
Certificate. If any purported transfer of a Class R-[ ] Certificate shall be
in violation of the provisions of Section 8.02(d) of the Agreement, as
described in this paragraph, then the prior Holder of the Class R-[ ]
Certificate purportedly transferred shall, upon discovery that the transfer of
such Class R-[ ] Certificate was not in fact permitted by Section 8.02(d) of
the Agreement, be restored to all rights as Holder thereof retroactive to the
date of the purported transfer. The Trustee shall be under no liability to any
Person for any registration of transfer of a Class R-[ ] Certificate that is
not permitted by Section 8.02(d) of the Agreement or for making payments due
on such Class R-[ ] Certificate to the purported Holder thereof or taking any
other action with respect to such purported Holder under the provisions of the
Agreement. The prior Holder shall be entitled to recover from any purported
Holder of a Class R-[ ] Certificate that was in fact not a permitted
transferee under Section 8.02(d) of the Agreement at the time it became a
Holder all payments made on such Class R-[ ] Certificate. The Holder of a
Class R-[ ] Certificate, by its acceptance thereof, shall be deemed for all
purposes to have consented to the provisions of Section 8.02 of the Agreement
and to any amendment of the Agreement deemed necessary by counsel of the
Depositor to ensure that the transfer of a Class R-[ ] Certificate to a
Disqualified Organization or any other Person will not cause the Trust Fund to
cease to qualify as a REMIC or cause the imposition of a tax upon the Trust
Fund.
A Disqualified Organization is any of (i) the United States, any
State or political subdivision thereof, any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (ii) any organization (other than a cooperative described in
Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code unless such organization is subject to the tax imposed by Section 511
of the Code, or (iii) any organization described in Section 1381(a)(2)(C) of
the Code. A corporation will not be treated as an instrumentality of the
United States or of any State or any political subdivision thereof if all of
its activities are subject to tax and, with the exception of FHLMC, a majority
of its board of directors is not selected by a governmental unit. A Non-United
States Person is a Person other than a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or
an estate or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.]
A-7
[No transfer of a Class [ ] Certificate or any interest therein shall
be made to (A) any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts or other entities in which
such plans, accounts or arrangements are invested, that is subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the
Code (each, a "Plan") or (B) any Person who is directly or indirectly
purchasing the Class [ ] Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of the foregoing, unless the
prospective transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establishes to the satisfaction of
the Certificate Registrar that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or cause the Master Servicer,
the Certificate Registrar or the Trustee to be deemed a fiduciary of such Plan
or result in the imposition of an excise tax under Section 4975 of the Code.
In the absence of its having received the certification and Opinion of Counsel
contemplated by the preceding sentence, the Certificate Registrar shall
require the prospective transferee of any Class [ ] Certificate to certify
that it is neither (A) a Plan nor (B) a Person who is directly or indirectly
purchasing such Class [ ] Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan.]
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon distribution (or provision for distribution) to
the Certificateholders of all amounts held by or on behalf of the Master
Servicer or the Trustee and required to be distributed to them pursuant to the
Agreement following the earlier of (i) the purchase by the Master Servicer,
the Special Servicer, any holder of a Class R-I Certificate, the holder of an
aggregate Percentage Interest in excess of 50% of the Most Subordinate Class
of Certificates at a price equal to the greater of (a) the aggregate fair
market value of all the Mortgage Loans (other than REO Property) included in
the Trust Fund, plus the appraised value of each REO Property, if any,
included in the Trust Fund, as determined by the Depositor and (b) the
aggregate Class Balance of all the Certificates plus accrued and unpaid
interest thereon together with any unreimbursed Advances (including any
interest thereon) and (ii) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund; provided, however, that in no event shall the trust created thereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the
A-8
time of purchase being less than 1% of the aggregate Cut-off Date Balance of
the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer, and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the
status of the Trust Fund as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
A-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed under its official seal.
Dated: _______________
XXXXX FARGO BANK MINNESOTA, N.A., not
individually, but solely in its capacity
as Trustee
By:
--------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [ ] Certificates referred to in the
within-mentioned Agreement.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Certificate Registrar
By:
---------------------------------
Authorized Signatory
A-10
EXHIBIT B
FORM OF ASSET STRATEGY REPORT
[Available upon request of the Special Servicer or the Trustee]
B-1
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Series 2001-CIBC2
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Mortgage Pass-Through Certificates,
Series 2001-CIBC2, Class [ ]
-----------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
______________ (the "Transferor") to ___________________ (the "Transferee") of
a Certificate evidencing a __% Percentage Interest in the captioned Class of
Certificates (the "Certificate"), pursuant to Section 8.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of July
1, 2001, among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as
depositor, Midland Loan Services, Inc., as master servicer, First Union
National Bank, as special servicer and Xxxxx Fargo Bank Minnesota, N.A., as
trustee. All capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Certificate with the
full right to transfer the Certificate free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the
Certificate, any interest in the Certificate or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Certificate, any interest in the Certificate
or any other similar security from, or otherwise approached or negotiated
with respect to the Certificate, any interest in the Certificate or any
other similar security with, any person by means of any form of general
solicitation or general advertising, including but not limited to any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar news medium or broadcast over television
or radio, or any seminar
C-1
or meeting whose attendees have been invited by any general solicitation
or advertising, or in any manner which would constitute a distribution
under the Securities Act of 1933,
C-2
as amended (the "1933 Act") or which would render the disposition of the
Certificate a violation of Section 5 of the 1933 Act or require
registration pursuant thereto.
(Transferor)
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
X-0
XXXXXXX X-0
FORM OF INVESTMENT LETTER--
QUALIFIED INSTITUTIONAL BUYER
[Date]
[Purchaser]
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Series 2001-CIBC2
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 2001-CIBC2, [Class G, Class H, Class J, Class K, Class L,
Class M, Class NR, Class R-I, Class R-II and Class R-III] (the "Certificates")
of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. (the "Depositor"),
we confirm that:
[1. We have received a copy of the Private Placement
Memorandum (the "Private Placement Memorandum") dated July __, 2001,
relating to the Certificates and such other information as we deem
necessary in order to make our investment decision. We understand
that the Private Placement Memorandum speaks only as of its date and
that the information contained therein may not be correct or complete
as of any time subsequent to such date.]
2. We understand that the Certificates have not been, and
will not be registered under the Securities Act of 1933, as amended
(the "Act") and may not be sold except as permitted by the
restrictions and conditions set forth in the Pooling and Servicing
Agreement dated as of July 1, 2001 relating to the Certificates and
the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with, such
restrictions and conditions and the Act. We understand that on any
proposed resale of any Certificates, we will be required to furnish
to the Trustee such certifications, legal opinions and other
information as it may require to confirm that the proposed sale is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Act. We further
understand that the Certificates will bear a legend to the foregoing
effect.
D-1-1
3. We are a "qualified institutional buyer" (within the
meaning of Rule 144A under the Act) (a "QIB") and we are acquiring
the Certificates for our own account or for the account of a QIB for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Act, and have
such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in
the Certificates, and we and any accounts for which we are acting are
each able to bear the economic risk of our or their investment. We
acknowledge that the sale of the Certificates to us is being made in
reliance on Rule 144A.
4. We are acquiring each of the Certificates purchased by us
for our own account or for a single account (which is a QIB and from
which no resale, pledge or other transfer may be made except to
another QIB) as to each of which we exercise sole investment
discretion.
5. Either (a) (i) we are not an employee benefit plan or
other retirement arrangement, (including an individual retirement
account or annuity or a Xxxxx plan) or collective investment fund or
separate accounts or other entity in which such plan, account or
arrangement is invested, that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code") (each, a
"Plan") or any person who is directly or indirectly purchasing any
such Class or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan; or (ii) we are purchasing
Certificates that are not Residual Certificates with funds of an
"investment company general account" as defined in Section V(e) of
Prohibited Transaction Class Exemption ("PTCE") 95-60 and our
acquisition and holding of the Certificates satisfy the requirements
for exemptive relief under Sections I and III of PTCE 95-60; or (b)
we have provided the Certificate Registrar with a certification of
facts and an Opinion of Counsel which have established to the
satisfaction of the Certificate Registrar that such transfer will not
result in a violation of Section 406 of ERISA or Section 4975 of the
Code or cause the Master Servicer, the Certificate Registrar or the
Trustee to be deemed a fiduciary of such Plan or result in the
imposition of an excise tax under Section 4975 of the Code.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to
the matters covered hereby.
Very truly yours,
By:
---------------------------------
Name:
Title:
D-1-2
Securities To Be Purchased:
$ principal amount of Certificates
X-0-0
XXXXXXX X-0
FORM OF INVESTMENT LETTER--
REGULATION S
[Date]
[Purchaser]
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Series 2001-CIBC2
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 2001-CIBC2, [Class G, Class H, Class J, Class K, Class L,
Class M, Class NR] (the "Certificates") of X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp. (the "Depositor"), we confirm that:
1. We understand that the Certificates have not been, and
will not be registered under the Securities Act of 1933, as amended
(the "Act") and may not be sold except as permitted by the
restrictions and conditions set forth in the Pooling and Servicing
Agreement dated as of July 1, 2001 relating to the Certificates and
the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with, such
restrictions and conditions and the Act. We understand that on any
proposed resale of any Certificates, we will be required to furnish
to the Trustee such certifications, legal opinions and other
information as it may require to confirm that the proposed sale is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Act. We further
understand that the Certificates will bear a legend to the foregoing
effect.
2. We are aware that the purchase of such Certificates is
being made in reliance on the exemption from registration provided by
Regulation S and understand that the Certificates offered in reliance
on Regulation S will bear the appropriate legend set forth in the
Pooling and Servicing Agreement, and be represented by one or more
Regulation S Global Certificates. The Certificates so represented may
not at any time be held by or on behalf of "U.S. Persons" as defined
in Regulation S under the Securities Act. Neither we nor any
beneficial owner of the Certificates that we may hold on its behalf
and will not be, a U.S. Person as
D-2-1
defined in Regulation S under the Securities Act. Before any interest
in a Regulation S Global Certificate may be offered, resold, pledged
or otherwise transferred to a person who takes delivery in the form
of an interest in a Physical Certificate, the transferee will be
required to provide the Trustee with a written certification as to
compliance with the transfer restrictions.
3. Either (a) (i) we are not an employee benefit plan or
other retirement arrangement, (including an individual retirement
account or annuity or a Xxxxx plan) or collective investment fund or
separate accounts or other entity in which such plan, account or
arrangement is invested, that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code") (each, a
"Plan") or any person who is directly or indirectly purchasing any
such Class or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan; or (ii) we are purchasing
Certificates with assets of an "insurance company general account" as
defined in Section V(e) of Prohibited Transaction Class Exemption
("PTCE") 95-60 and our acquisition and holding of the Certificates
satisfy the requirements for exemptive relief under Sections I and
III of PTCE-95-60; or (b) we have provided the Certificate Registrar
with a certification of facts and an Opinion of Counsel which have
established to the satisfaction of the Certificate Registrar that
such transfer will not result in a violation of Section 406 of ERISA
or Section 4975 of the Code or cause the Master Servicer, the
Certificate Registrar or the Trustee to be deemed a fiduciary of such
Plan or result in the imposition of an excise tax under Section 4975
of the Code.
D-2-2
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to
the matters covered hereby.
Very truly yours,
By:
-------------------------------
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
D-2-3
EXHIBIT E
FORM OF INVESTMENT LETTER--
ACCREDITED INVESTOR
[Date]
[Purchaser]
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Series 2001-CIBC2
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 2001-CIBC2, [Class G, Class H, Class L, Class M, Class J,
Class NR, Class R-I, Class R-II and Class R-III] (the "Certificates") of X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp. (the "Depositor"), we
confirm that:
[1. We have received a copy of the Private Placement
Memorandum (the "Private Placement Memorandum") dated September [o],
2000, relating to the Certificates and such other information as we
deem necessary in order to make our investment decision. We
understand that the Private Placement Memorandum speaks only as of
its date and that the information contained therein may not be
correct or complete as of any time subsequent to such date.]
2. We understand that the Certificates have not been, and
will not be registered under the Securities Act of 1933, as amended
(the "Act") and may not be sold except as permitted by the
restrictions and conditions set forth in the Pooling and Servicing
Agreement dated as of July 1, 2001 relating to the Certificates and
the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with, such
restrictions and conditions and the Act. We understand that on any
proposed resale of any Certificates, we will be required to furnish
to the Trustee such certifications, legal opinions and other
information as it may require to confirm that the proposed sale is
being made pursuant to an exemption from, or in a transaction not
subject to,
E-1
the registration requirements of the Act. We further understand that
the Certificates will bear a legend to the foregoing effect.
3. We are an "accredited investor" (as defined in Rule
501(a)(1), (2), (3), or (7) under the Act) and we are acquiring the
Certificates for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of
the Act, and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks
of our investment in the Certificates, and we and any accounts for
which we are acting are each able to bear the economic risk of our or
their investment.
4. We are acquiring each of the Certificates purchased by us
for our own account or for a single account (each of which is an
"accredited investor" and from which no resale, pledge or other
transfer may be made except to another "accredited investor") as to
which we exercise sole investment discretion.
5. Either (a) (i) we are not an employee benefit plan or
other retirement arrangement, (including an individual retirement
account or annuity or a Xxxxx plan) or collective investment fund or
separate accounts or other entity in which such plan, account or
arrangement is invested, that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code") (each, a
"Plan") or any person who is directly or indirectly purchasing any
such Class or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan; or (ii) we are purchasing
Certificates that are not Residual Certificates with funds of an
"investment company general account" as defined in Section V(e) of
Prohibited Transaction Class Exemption ("PTCE") 95-60 and our
acquisition and holding of the Certificates satisfy the requirements
for exemptive relief under Sections I and III of PTCE 95-60; or (b)
we have provided the Certificate Registrar with a certification of
facts and an Opinion of Counsel which have established to the
satisfaction of the Certificate Registrar that such transfer will not
result in a violation of Section 406 of ERISA or Section 4975 of the
Code or cause the Master Servicer, the Certificate Registrar or the
Trustee to be deemed a fiduciary of such Plan or result in the
imposition of an excise tax under Section 4975 of the Code.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to
the matters covered hereby.
Very truly yours,
By:
----------------------------
E-2
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
E-3
EXHIBIT F-1
FORM OF TRANSFER AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
1. He is the [Title of Officer] of [Name of Owner] (the record or
beneficial owner (the "Owner") of X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Mortgage Pass-Through Certificate, Series 2001-CIBC2, Class
[ ], No. ___ (the "Class [ ] Certificate")), a _____________ duly organized
and existing under the laws of [the State of ______________] [the United
States], on behalf of which he makes this affidavit. Capitalized terms used
but not defined herein have the respective meanings assigned thereto in the
Pooling and Servicing Agreement pursuant to which the Class [ ] Certificate
was issued.
2. The Owner (i) is and will be a "Permitted Transferee" as of [date
of transfer] and (ii) is acquiring the Class [ ] Certificate for its own
account. A "Permitted Transferee" is any person other than a "disqualified
organization" or a possession of the United States. (For this purpose, a
"disqualified organization" means the United States, any state or political
subdivision thereof, any agency or instrumentality of any of the foregoing
(other than an instrumentality all of the activities of which are subject to
tax and, except for the Federal Home Loan Mortgage Corporation, a majority of
whose board of directors is not selected by any such governmental entity) or
any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Owner is aware (i) of the tax that would be imposed on
transfers of the Class [ ] Certificate to disqualified organizations under the
Internal Revenue Code of 1986, as amended, that applies to all transfers of
the Class [ ] Certificate after March 31, 1988; (ii) that such tax would be on
the transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a non-Permitted Transferee, on
the agent; (iii) that the person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such person
an affidavit that the transferee is a Permitted Transferee and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false.
4. The Owner is aware of the tax imposed on a "pass-through entity"
holding the Class [ ] Certificate if at any time during the taxable year of
the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Owner is aware that it cannot transfer the Class [ ]
Certificate unless the transferee, or the transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit in substantially the
same form as this affidavit.
F-1-1
6. The Owner consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a
reasonable arrangement to ensure that the Class [ ] Certificate will only be
owned, directly or indirectly, by an Owner that is a Permitted Transferee.
7. The Owner's taxpayer identification number is ________________.
8. No purpose of the Owner relating to its purchase of a Class [ ]
Certificate is or will be to impede the assessment or collection of any tax.
9. The Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as the Class [ ]
Certificate remains outstanding.
10. The Owner has no present knowledge or expectation that it will
become insolvent or subject to a bankruptcy proceeding for so long as the
Class [ ] Certificate remains outstanding.
11. No purpose of the Owner relating to any sale of any Class [ ]
Certificate will be to impede the assessment or collection of any tax.
12. The Owner is not a Non-United States Person.
13. The Owner has provided financial statements or other financial
information requested by the transferor in connection with the transfer of the
Class [ ] Certificate to permit the transferor to assess the financial
capability of the Owner to pay any such taxes.
14. Either (a) the Owner is not an employee benefit plan or other
retirement arrangement, (including an individual retirement account or annuity
or a Xxxxx plan) or collective investment fund or separate accounts or other
entity in which such plan, account or arrangement is invested, that is subject
to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code")
(each, a "Plan") or any person who is directly or indirectly purchasing any
such Class or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (b) the Owner has provided the Certificate
Registrar with a certification of facts and an Opinion of Counsel which have
established to the satisfaction of the Certificate Registrar that such
transfer will not result in a violation of Section 406 of ERISA or Section
4975 of the Code or cause the Master Servicer, the Certificate Registrar or
the Trustee to be deemed a fiduciary of such Plan or result in the imposition
of an excise tax under Section 4975 of the Code.
F-1-2
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors,
by its [Title of Officer] and its Corporate Seal to be hereunto attached,
attested by its [Assistant] Secretary, this ___ day of __________, 200_.
[NAME OF OWNER]
By:
-----------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same Person who executed the foregoing
instrument and to be the [Title of Officer] of the Owner, and acknowledged to
me that he executed the same as his free act and deed and the free act and
deed of the Owner.
Subscribed and Sworn before me this ____ day of 200_.
____________________________________
NOTARY PUBLIC
COUNTY OF _______________
STATE OF My _____________
Commission expires the
___ day of ___________,
20__.
F-1-3
EXHIBIT F-2
FORM OF TRANSFEROR CERTIFICATE
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Series 2001-CIBC2
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Mortgage Pass-Through Certificates, Series
2001-CIBC2, Class [ ]
Dear Sirs:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class [ ] Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
-----------------------------------
(Transferor)
By:
-----------------------------
Name:
Title:
F-2-1
EXHIBIT G
MORTGAGE LOAN SCHEDULE
[Available upon request of the Trustee]
G-1
EXHIBIT H
FORM OF DISTRIBUTION DATE STATEMENT
H-1
EXHIBIT I
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
I-1
EXHIBIT J
FORM OF ACKNOWLEDGEMENT
J-1
EXHIBIT K
CONFIDENTIALITY AGREEMENT FOR ASSET STRATEGY REPORT
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Series 2001-CIBC2
Ladies and Gentlemen:
The undersigned hereby requests the Asset Strategy Report as amended
or restated from time to time (the "Report") in connection with Mortgage Loan
Number (the "Mortgage Loan") as identified in the pooling and servicing
agreement (the "Pooling and Servicing Agreement") dated as of July 1, 2001, by
and among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as
depositor, Xxxxx Fargo Bank Minnesota, N.A., as trustee and First Union
National Bank, as special servicer, Midland Loan Services, Inc., as master
servicer. Capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Pooling and Servicing Agreement.
The undersigned acknowledges and agrees that disclosing any
information contained in the Report to the related mortgagor, an affiliate
thereof or a person acting on their behalf would interfere with the property
rights of the Trust Fund and the Certificateholders and result in additional
losses and costs thereto. Such disclosure would also thus adversely impact the
planning, strategy and servicing by the Special Servicer of the related
Mortgage Loan, Mortgaged Property or REO Loan in accordance with the Pooling
and Servicing Agreement. The undersigned represents that none of it, or its
Representatives is the related mortgagor, an affiliate thereof or a person
acting on their behalf. Realizing the serious nature of any use or disclosure
adverse to the terms herein, the undersigned hereby agrees to indemnify and
hold harmless the Trust Fund, the Certificateholders and the Special Servicer
from any claim or legal action (whether in law or equity) and any other
monetary loss related to the undersigned's disclosure or use of the
information contained in the Asset Strategy Report inconsistent with the terms
of this Agreement.
The undersigned acknowledges and agrees that it is imperative that
the Report remains confidential. Accordingly, the undersigned agrees that
before it or any of its affiliates, or it or its affiliates' agents, advisors,
or representatives (each, a "Representative") may be given access to the
Reports, the undersigned and each such affiliate and Representative shall
agree to be bound by the terms of this Agreement. The undersigned agrees to be
responsible for any breach of this Agreement by its affiliates or its or their
Representatives.
K-1
To maintain the confidentiality of the Reports, the undersigned and
each individual or entity agreeing to be bound by this Agreement agree:
1. Not to use or allow the use for any purpose of the Reports or notes,
summaries, or other material derived by the undersigned, its affiliates,
or its or their Representatives from the Report (collectively, "Notes")
except to determine whether to implement the recommended actions outlined
in the Report;
2. Not to disclose or allow disclosure to others of the Report or Notes
except to its affiliates or to its or their Representatives, in each case
to the extent necessary to permit such affiliate or Representative to
assist the undersigned in making the determinations referred to in clause
(a) above;
3. Not to disclose or allow disclosure to persons other than those described
in clause (b) above that the Report has been made available to the
undersigned, that the undersigned, its affiliates, or its or their
Representatives have inspected the Reports; and
4. Not to make or allow to be made copies of the Report except in the form
of Notes made by the undersigned, its affiliates, or its or their
Representatives, or as the Trustee may specifically authorize in writing.
You may, upon reasonable belief that the undersigned, or any
individual or entity agreeing to be bound by this Agreement breached this
Agreement, elect at any time to terminate further access by any or all such
parties to the Report and the undersigned agrees that upon any such
termination, it will promptly (and in any case within 7 days of the Trustee's
request), return to the Trustee the Report except Notes and will cause all
Notes to be destroyed, and confirm in writing to the Trustee the fact that all
such material has been returned or destroyed in compliance with the terms of
this Agreement. No such termination will affect the undersigned's obligations
hereunder or those of its affiliates or its or their Representatives, all of
which obligations shall continue in effect.
This Agreement shall be inoperative as to particular portions of the
Report if such Report (i) becomes generally available to the public other than
as a result of a disclosure by the undersigned, its affiliates, or its or
their Representatives, (ii) was available to the undersigned on a
non-confidential basis prior to its disclosure to the undersigned by the
Trustee, or (iii) becomes available to the undersigned on a non-confidential
basis from a source other than the Trustee or its agents, advisors, or
representatives when such source is entitled, to the best of the undersigned's
knowledge, to make such disclosure. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflicts of laws principles thereof.
If the undersigned, its affiliates, or its or their Representatives
are requested or required (by oral questions, interrogatories, requests for
the Report, subpoena, civil investigative demand, or similar process) to
disclose the Report or Notes, it is agreed that the undersigned will provide
the Trustee and the Special Servicer with prompt written notice of such
request(s), to the extent practicable, so that they may seek an appropriate
protective order and/or waive your compliance with the provisions of this
Agreement. If, failing the entry of a protective order
K-2
or the receipt of a waiver hereunder, the undersigned, its affiliates, or its
or their Representatives are, in the opinion of the undersigned's counsel
compelled to disclose the Report or Notes under pain of liability for contempt
or other censure or penalty, the undersigned may disclose only that portion of
the Report as is legally required without liability hereunder, provided that
the undersigned agrees to exercise its best efforts to obtain assurance that
confidential treatment will be accorded the Report.
K-3
This Agreement sets forth the entire agreement between the parties
with respect to the matters described herein and supersedes all prior
agreements and understandings, oral and written, between the parties with
respect thereto.
Very truly yours,
[Certificateholder]
By:
-------------------------------
Name:
Title:
Accepted and agreed to as of the date above written
XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee
By:
---------
Name:
Title:
K-4
EXHIBIT L
FORM OF SPECIAL SERVICER LETTER PURSUANT TO SECTION 4.01(e)
[SPECIAL SERVICER STATIONERY]
Date
Mortgagor's Name
Mortgagor's Address
Re: Transfer of Servicing of Loan in the Name of
[Mortgagor's Name], Loan [Mortgagor's Primary Loan
ID Number]
Dear [Mortgagor]:
Please be advised that the servicing of the above referenced loan has
been returned to ["Master Servicer's Name"].
Please continue to remit all payments to ["Master Servicer's Name"].
["Master Servicer's Name"] will continue to process your checks and maintain
the accounting records for this loan. Please remember to use the above
["Master Servicer's Name"] Loan Number when communicating with us and making
your payments to ["Master Servicer's Name"].
Should you have any questions, please call _________________________
or write at the following address:
Master Servicer's Name
Master Servicer's Address
Sincerely,
cc: ["Special Servicer's Name"]
L-1
EXHIBIT M
FORM OF PROPERTY INSPECTION REPORT PURSUANT TO SECTION 4.09(a)
[Available upon request of the Special Servicer or the Trustee]
M-1
FORM OF CONFIDENTIALITY LETTER (CERTIFICATE OWNERS)
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Series 2001-CIBC2
Midland Loan Services, Inc.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Mortgage Pass-Through Certificates, Series 2001-CIBC2
------------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby acknowledges that it has received certain
information (the "Information") pursuant to Section 7.03(d) of the pooling and
servicing agreement (the "Pooling and Servicing Agreement") dated as of July
1, 2001, by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
as depositor, Xxxxx Fargo Bank Minnesota, N.A., as trustee and First Union
National Bank, as special servicer, Midland Loan Services, Inc., as master
servicer. Capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Pooling and Servicing Agreement.
The undersign represents that it is a beneficial owner of a
Book-Entry Certificate issued pursuant to the Pooling and Servicing Agreement.
The undersigned acknowledges and agrees that it is imperative that
the Information remain confidential and represents and warrants that it shall
keep the Information confidential in accordance with and subject to Section
7.03(d) of the Pooling and Servicing Agreement (except that such Certificate
Owner may provide the Information to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein, provided
that such other Person confirms in writing such ownership interest or
prospective ownership interest and agrees to keep the Information
confidential).
Very truly yours,
[Certificate Owner]
N-1-1
By:
-------------------------------
Name:
Title:
N-1-2
EXHIBIT N-2
FORM OF CONFIDENTIALITY LETTER (PROSPECTIVE OWNERS)
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Series 2001-CIBC2
Midland Loan Services, Inc.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Mortgage Pass-Through Certificates, Series 2001-CIBC2
-------------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby acknowledges that it has received certain
information (the "Information") pursuant to Section 7.03(d) of the pooling and
servicing agreement (the "Pooling and Servicing Agreement") dated as of July
1, 2001, by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
as depositor, Xxxxx Fargo Bank Minnesota, N.A., as trustee and First Union
National Bank, as special servicer, Midland Loan Services, Inc., as master
servicer. Capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Pooling and Servicing Agreement.
The undersign represents that it is a prospective purchaser of a
Certificate, or an interest therein, issued pursuant to the Pooling and
Servicing Agreement and is requesting the Information for use in evaluating a
possible investment in such Certificate.
The undersigned acknowledges and agrees that it is imperative that
the Information remain confidential and represents and warrants that it shall
keep the Information confidential in accordance with and subject to Section
7.03(d) of the Pooling and Servicing Agreement.
Very truly yours,
[Prospective Owner]
N-2-1
By:
----------------------------------
Name:
Title:
N-2-2
EXHIBIT O
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For loans having balance of (a) $5,000,000 or less, or (b) less than 1% of
outstanding pool balance, whichever is less
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: Midland Loan Servicer, Inc., in its capacity
as Servicer (the "Servicer") under the Pooling and Servicing
Agreement dated as of July 1, 2001 (the "Pooling and Servicing
Agreement"), among the Servicer, Xxxxx Fargo Bank Minnesota, N.A. as
Trustee, and others.
Date: _________, 20___
Re: _______________________________________
Commercial Mortgage Pass-Through Certificates
Series ___________
Mortgage Loan (the "Mortgage Loan") identified by loan number _____
on the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged Properties
identified on the Mortgage Loan Schedule by the following
names:____________________
____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings
assigned to such terms in the Pooling and Servicing Agreement. [Note: all
terms in this Certification must be conformed to terms used in the Pooling and
Servicing Agreement]
As Servicer under the Pooling and Servicing Agreement, we hereby:
1. Notify you that the Mortgagor has consummated a
defeasance of the Mortgage Loan pursuant to the
terms of the Mortgage Loan, of the type checked
below:
____ a full defeasance of the payments
scheduled to be due in respect of the
entire principal balance of the Mortgage
Loan; or
O-1
____ a partial defeasance of the payments
scheduled to be due in respect of a
portion of the principal balance of the
Mortgage Loan that represents ___% of the
entire principal balance of the Mortgage
Loan and, under the Mortgage, has an
allocated loan amount of $____________ or
_______% of the entire principal balance;
2. Certify that each of the following is true, subject
to those exceptions set forth with explanatory
notes on Exhibit A hereto, which exceptions the
Servicer has determined, consistent with the
Servicing Standard, will have no material adverse
effect on the Mortgage Loan or the defeasance
transaction:
a. The Mortgage Loan Documents permit the
defeasance, and the terms and conditions
for defeasance specified therein were
satisfied in all material respects in
completing the defeasance.
b. The defeasance was consummated on
__________, 20__.
c. The defeasance collateral consists of
securities that (i) constitute "government
securities" as defined in Section 2(a)(16)
of the Investment Company Act of 1940 as
amended (15 U.S.C. 80A1), (ii) are listed
as "Qualified Investments for `AAA'
Financings" under Paragraphs 1, 2 or 3 of
"Cash Flow Approach" in Standard & Poor's
Public Finance Criteria 2000, as amended
to the date of the defeasance, (iii) are
rated `AAA' by Standard & Poor's, (iv) if
they include a principal obligation, the
principal due at maturity cannot vary or
change, and (v) are not subject to
prepayment, call or early redemption. Such
securities have the characteristics set
forth below:
CUSIP RATE MAT PAY DATES ISSUED
-------------------------------
d. The Servicer received an opinion of
counsel (from counsel approved by Servicer
in accordance with the Servicing Standard)
that the defeasance will not result in an
adverse REMIC event.
e. The Servicer determined that the
defeasance collateral will be owned by an
entity (the "Defeasance Obligor") as to
which one of the statements checked below
is true:
____ the related Mortgagor was a
Single-Purpose Entity (as defined
in Standard & Poor's Structured
Finance Ratings Real Estate
Finance Criteria, as amended to
the date of the defeasance (the
"S&P Criteria")) as of the date of
the defeasance, and after the
defeasance owns no assets other
than the defeasance collateral and
real property securing Mortgage
Loans included in the pool.
O-2
____ the related Mortgagor designated
a Single-Purpose Entity (as
defined in the S&P Criteria) to
own the defeasance collateral; or
____ the Servicer designated a
Single-Purpose Entity (as defined
in the S&P Criteria) established
for the benefit of the Trust to
own the defeasance collateral.
f. The Servicer received a broker or
similar confirmation of the
credit, or the accountant's
letter described below contained
statements that it reviewed a
broker or similar confirmation of
the credit, of the defeasance
collateral to an Eligible Account
(as defined in the S&P Criteria)
in the name of the Defeasance
Obligor, which account is
maintained as a securities
account by the Trustee acting as
a securities intermediary.
g. As securities intermediary,
Trustee is obligated to make the
scheduled payments on the
Mortgage Loan from the proceeds
of the defeasance collateral
directly to the Servicer's
collection account in the amounts
and on the dates specified in the
Mortgage Loan Documents or, in a
partial defeasance, the portion
of such scheduled payments
attributed to the allocated loan
amount for the real property
defeased, increased by any
defeasance premium specified in
the Mortgage Loan Documents (the
"Scheduled Payments").
h. The Servicer received from the
Mortgagor written confirmation
from a firm of independent
certified public accountants, who
were approved by Servicer in
accordance with Accepted Master
Servicing Practices or Accepted
Special Servicing Practices, as
applicable, stating that (i)
revenues from principal and
interest payments made on the
defeasance collateral (without
taking into account any earnings
on reinvestment of such revenues)
will be sufficient to timely pay
each of the Scheduled Payments
after the defeasance including
the payment in full of the
Mortgage Loan (or the allocated
portion thereof in connection
with a partial defeasance) on its
Maturity Date (or, in the case of
an ARD Loan, on its Anticipated
Repayment Date), (ii) the
revenues received in any month
from the defeasance collateral
will be applied to make Scheduled
Payments within four (4) months
after the date of receipt, and
(iii) interest income from the
defeasance collateral to the
Defeasance Obligor in any
calendar or fiscal year will not
exceed such Defeasance Obligor's
interest expense for the Mortgage
Loan (or the allocated portion
thereof in a partial defeasance)
for such year.
O-3
i. The Servicer received opinions
from counsel, who were approved
by Servicer in accordance with
Accepted Master Servicing
Practices or Accepted Special
Servicing Practices, as
applicable, that (i) the
agreements executed by the
Mortgagor and/or the Defeasance
Obligor in connection with the
defeasance are enforceable
against them in accordance with
their terms, and (ii) the Trustee
will have a perfected, first
priority security interest in the
defeasance collateral described
above.
j. The agreements executed in
connection with the defeasance
(i) permit reinvestment of
proceeds of the defeasance
collateral only in Permitted
Investments (as defined in the
S&P Criteria), (ii) permit
release of surplus defeasance
collateral and earnings on
reinvestment to the Defeasance
Obligor or the Mortgagor only
after the Mortgage Loan has been
paid in full, if any such release
is permitted, (iii) prohibit any
subordinate liens against the
defeasance collateral, and (iv)
provide for payment from sources
other than the defeasance
collateral or other assets of the
Defeasance Obligor of all fees
and expenses of the securities
intermediary for administering
the defeasance and the securities
account and all fees and expenses
of maintaining the existence of
the Defeasance Obligor.
k. The entire principal balance of
the Mortgage Loan as of the date
of defeasance was $___________
[$5,000,000 or less or less than
one percent of pool balance,
whichever is less] which is less
than 1% of the aggregate
Certificate Balance of the
Certificates as of the date of
the most recent Paying Agent's
Monthly Certificateholder Report
received by us (the "Current
Report").
l. The defeasance described herein,
together with all prior and
simultaneous defeasances of
Mortgage Loans, brings the total
of all fully and partially
defeased Mortgage Loans to
$__________________, which is
_____% of the Aggregate
Certificate Balance of the
Certificates as of the date of
the Current Report.
3. Certify that, in addition to the foregoing,
Servicer has imposed such additional conditions to
the defeasance, subject to the limitations imposed
by the Mortgage Loan Documents, as are consistent
with Accepted Master Servicing Practices or
Accepted Special Servicing Practices, as
applicable.
4. Certify that Exhibit B hereto is a list of the
material agreements, instruments, organizational
documents for the Defeasance Obligor, and opinions
of counsel and independent accountants executed and
delivered in connection with the defeasance
described above and that originals or copies of
such agreements, instruments and opinions have been
transmitted to the Trustee for placement in the
related Mortgage File or, to the extent not
required to be part of the related Mortgage File,
are in the possession of the Servicer as part of
the Servicer's Mortgage File.
O-4
5. Certify and confirm that the determinations and
certifications described above were rendered in
accordance with Accepted Master Servicing Practices
or Accepted Special Servicing Practices, as
applicable, set forth in, and the other applicable
terms and conditions of, the Pooling and Servicing
Agreement.
6. Certify that the individual under whose hand the
Servicer has caused this Notice and Certification
to be executed did constitute a Servicing Officer
as of the date of the defeasance described above.
7. Agree to provide copies of all items listed in
Exhibit B to you upon request.
O-5
IN WITNESS WHEREOF, the Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
SERVICER:____________________________
By:__________________________________
Name:
Title:
O-6
EXHIBIT P
INITIAL SERVICER WATCH LIST CRITERIA
Until the CMSA adopts "Servicer Watch List" criteria and a form of
report is available on the CMSA Website or is recommended from time to time by
the CMSA for commercial mortgage securities transactions generally, the
Servicer shall include on its CMSA Servicer Watch List Mortgage Loans that
meet the following criteria:
1. Mortgage Loans that have experienced a decrease of at least (a) 10%
in DSCR from the previous reporting period (unless the Master
Servicer shall have reasonably determined that such decrease is due
to the seasonal nature or use of the related Mortgaged Property or is
not an indication that such loan needs to be monitored) or (b) 20% in
DSCR in the prior 12 month trailing period (unless the Master
Servicer shall have reasonably determined that such decrease is due
to the seasonal nature or use of the related Mortgaged Property or is
not an indication that such loan needs to be monitored); and
2. Mortgage Loans that have experienced a loss of or bankruptcy of one
of the three largest tenants, to the extent the Master Servicer has
actual knowledge of such loss or bankruptcy.
P-1
EXHIBIT Q
FORM OF PURCHASE OPTION NOTICE
PURSUANT TO SECTION 6.05
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Series 2001-CIBC2
Midland Loan Services, Inc.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Mortgage Pass-Through Certificates, Series 2001-CIBC2
------------------------------------------------------
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 6.05 of the pooling and
servicing agreement (the "Pooling and Servicing Agreement") dated as of July
1, 2001, by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
as depositor, Xxxxx Fargo Bank Minnesota, N.A., as trustee, First Union
National Bank, as special servicer, and Midland Loan Services, Inc., as master
servicer. Capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Pooling and Servicing Agreement.
The undersigned Option Holder [is the Special Servicer] [is the
Monitoring Class Option Holder] [acquired its Purchase Option from the
[Special Servicer] [Monitoring Class Option Holder] on _________].
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 6.05(a)(ii) of the Pooling and Servicing
Agreement. Within ten (10) Business Days of its receipt of the Master
Servicer's notice confirming that the exercise of its Purchase Option is
effective, [the undersigned Option Holder] [______________, an Affiliate of
the undersigned Option Holder] will deliver the Option Price to or at the
direction of the Master Servicer in exchange for the release of the Mortgage
Loan, the related Mortgaged Property and delivery of the related Mortgage Loan
File.
Q-1
The undersigned Option Holder agrees that it shall prepare and
provide the Master Servicer with such instruments of transfer or assignment,
in each case without recourse, as shall be reasonably necessary to vest in it
or its designee the ownership of Mortgage Loan ____, together with such other
documents or instruments as the Master Servicer shall reasonably require to
consummate the purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the Master Servicer' notice confirming that the exercise of
its Purchase Option is effective, the undersigned Option Holder, or its
designee, shall be obligated to close its purchase of Mortgage Loan ___ in
accordance with the terms and conditions of this letter and Section 6.05(a) of
the Pooling and Servicing Agreement.
Very truly yours,
[Option Holder]
By:
Name:
Title:
[By signing this letter in the space provided below, the [Special
Servicer] [Monitoring Class Option Holder] hereby acknowledges and affirms
that it transferred its Purchase Option to the Option Holder identified above
on [_________].
[-----------------------]
By:
Name:
Title: ]
Q-2
EXHIBIT R
Directing Certificateholder's Report List
------------------------------------------- ------------------ -------------------- ---------------------------------
Information Format Frequency
------------------------------------------- ------------------ -------------------- ---------------------------------
Property Operating Statement Actual PDF/TIF(3) Quarterly
------------------------------------------- ------------------ -------------------- ---------------------------------
Property Rent Roll Actual PDF/TIF(3) Quarterly
------------------------------------------- ------------------ -------------------- ---------------------------------
Other Financials as required by loan Actual PDF/TIF(3) Quarterly
documents
------------------------------------------- ------------------ -------------------- ---------------------------------
Property Inspection Actual PDF/TIF(3) Quarterly
------------------------------------------- ------------------ -------------------- ---------------------------------
Payments Received After Determination Monthly Excel(4) Master Servicer Remittance Date
Date Report (1)
------------------------------------------- ------------------ -------------------- ---------------------------------
Mortgage Loans Delinquent Report (2) Monthly Excel(4) 30th of each month
------------------------------------------- ------------------ -------------------- ---------------------------------
Interest on Advance Reconciliation Monthly Excel(4) Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Setup File (Issuer/Trustee/Servicer) CMSA IRP Access/Excel(3) Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Property File CMSA IRP Access/Excel(3) Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Loan Periodic Update File CMSA IRP Access/Excel(3) Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Financial File CMSA IRP Access/Excel(3) Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
Distribution Statement (Trustee) Monthly Excel/PDF(3) Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Bond File (Trustee) CMSA IRP Access/Excel(3) Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Collateral File (Trustee) CMSA IRP Access/Excel(3) Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Supplemental Reports CMSA IRP Access/Excel(3) Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Operating Statement Analysis Report CMSA IRP Access/Excel(3) Quarterly
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA NOI Adjustment Worksheet CMSA IRP Access/Excel(3) Quarterly
------------------------------------------- ------------------ -------------------- ---------------------------------
Documentation Exceptions Report (Trustee) Quarterly Access/Excel(3) Quarterly
------------------------------------------- ------------------ -------------------- ---------------------------------
Footnotes:
1) On the Master Remittance Date following the Determination Date for
the related Distribution Date, a list of all Mortgage Loans which are
delinquent as to the applicable Collection Period on the Master
Remittance Date. This list should represent all delinquent Mortgage
Loans that required a P&I Advance be made.
2) On the last day of the month (30th), for all delinquencies reported
in paragraph 1 above, a list of all Mortgage Loans which remain
delinquent for such Collection Period (along with the number of days
delinquent) accompanied with any reason, in Master Servicer's
R-1
opinion, for the Mortgage Loans continued delinquency, along with an
explanation of Master Servicer's attempts to cure.
3) ARCap REIT, Inc. requests that the above information be organized in
ascending Mortgage Loan number order and forwarded on each of the
above listed dates via E-mail to the address below listed, or made
available via the Master Servicer's or Trustee's Website or pursuant
to such other electronic means or system as agreed upon by ARCap
REIT, Inc. and the Master Servicer or the Trustee, as applicable.
4) ARCap REIT, Inc. requests that the above information be organized in
ascending servicing number order and forwarded on each of the above
listed dates, together with a table pursuant to which servicing loan
numbers can be converted to the corresponding Mortgage Loan numbers,
via E-mail to the address below listed, or made available via the
Master Servicer's or Trustee's Website or pursuant to such other
electronic means or system as agreed upon by ARCap REIT, Inc. and the
Master Servicer.
Xxxxx Xxxxx Xxxxx Xxxxxxx
Director Bond/Mortgage Surveillance President
ARCap REIT, Inc. ARCap REIT, Inc.
xxxxxx@xxxxx.xxx xxxxxxxx@xxxxx.xxx
(972) 580-1688 ext. 29 (972) 580-1688 ext. 11
R-2
EXHIBIT S
FORM OF NOTICE REGARDING TRANSFER TO SPECIAL SERVICING
PURSUANT TO SECTION 6.02(a)
[MASTER SERVICER STATIONERY]
Date
Trustee Name and Address
Depositor Name and Address
Master Servicer Name and Address
Special Servicer Name and Address
Re: Transfer of Servicing of Loan in the Name of
[Mortgagor's Name], Loan [Mortgagor's Primary ID
Number]
Dear Sir/Madam:
Please be advised that the servicing of the above-referenced loan
will be transferred to ["Special Servicer's Name"] for special servicing as of
the date of this letter. This loan is being transferred to ["Special
Servicer's Name"] for servicing the following noted reason:
1. The loan has become a Defaulted Mortgage Loan;
2. The Mortgagor has entered into or consented to bankruptcy, appointment of
a receiver or conservator or a similar insolvency or a similar
proceeding, or the Mortgagor has become a subject of a decree or order
for such a proceeding which shall have remained in force on discharged or
unstayed for a period of 60 days;
3. Either ["Special Servicer's Name"] or ["Master Servicer's Name"] has
received notice of the foreclosure or proposed foreclosure of any other
lien on the Mortgaged Property;
4. In the judgment of ["Special Servicer' s Name"] or ["Master Servicer's
Name"], a payment default has occurred or is imminent and is not likely
to be cured by the related Mortgagor within sixty (60) days;
5. The related Mortgagor has admitted in writing its inability to pay its
debts generally as they become due, has filed a petition to take
advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended
payment of its obligations;
6. With respect to a Balloon Mortgage Loan, the related Mortgagor, in
response to a letter from ["Master Servicer's Name"] pursuant to Section
4.11 of the Servicing Agreement, has requested either an extension of the
related Maturity Date of any other modification or has otherwise
indicated the inability to make the payment due on such Maturity Date, or
has failed to respond within thirty (30) days after the 3-months' notice
letter referenced in Section 4.11 of the Servicing Agreement;
S-1
7. Any other material default has, in ["Special Servicer's Name"]'s judgment
or ["Master Servicer's Name"]'s judgment, occurred which is not
reasonably susceptible of cure within the time periods and on the terms
and conditions, if any, provided in the related Mortgage;
8. the related Mortgaged Property has become REO Property; or
9. If for any reason, ["Master Servicer's Name"] cannot enter into an
assumption agreement pursuant to section 4.08 of the Servicing Agreement.
All capitalized terms used herein shall have the same meaning as
defined in, and all references to the "Servicing Agreement' shall refer to,
the Servicing Agreement among ["Special Servicer's Name"], ["Master Servicer's
Name"], and the Initial Owner, Xxxxxx Guaranty Trust Company of New York.
Sincerely,
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
cc: ["Special Servicer's Name"]
S-2
EXHIBIT T
FORM OF NOTIFICATION OF SERVICING TRANSFER
[SPECIAL SERVICER STATIONERY]
Date
Mortgagor's Name
Mortgagor's Address
Re: Transfer of Servicing of Loan in the Name of [Mortgagor's
Name], Loan [Mortgagor's Primary Loan ID Number]
Dear [Mortgagor]:
Your loan has been transferred to ["Special Servicer Name"] ("Special
Servicer") for Special Servicing. After we review your records, we will be
contacting you soon.
Please continue to remit all payments to ["Master Servicer's Name"]
while your loan is being serviced by ("Special Servicer"). "Master Servicer's
Name" will continue to process your checks and maintain the accounting records
for this loan. The acceptance of any payments by ["Master Servicer's Name"]
does not constitute any agreement to modify or amend your loan in any way.
A Special Servicer employee will contact you shortly to discuss what
options are available to you at this time. Should you have any questions
regarding your loans, please contact Special Servicer's toll-free Customer
Service number ["Customer Service Number"], or write to Special Servicer at
the following address. Please remember to use the above ["Master Servicer's
Name"] loan number when communicating with Special Servicer and making your
payments to ["Master Servicer's Name"] while Special Servicer is servicing
your loan:
["Special Servicer's Name"]
["Special Servicer's Address"]
Attention: Special Servicing
Special Servicer may be engaging third party firms to perform
property inspections as well as certain other analyses and studies on property
which serves as collateral for your loan. You may be contacted by such third
party firms to provide access to your property and other information. We will
appreciate your cooperation during this process and look forward to completing
these activities in the near future.
No statement, act, omission or course of dealing or conduct on the
part of the ["Master Servicer's Name"] or Special Servicer, or both, shall be
construed to alter or waive any default or any obligation under applicable law
and/or the documents pertaining to your loan; no
T-1
agreement or waiver shall be binding on ["Master Servicer's Name"] or
("Special Servicer") unless reduced to writing and signed by an employee duly
authorized to do so; and neither delay in nor failure of [Master Servicer's
Name] or Special Servicer to exercise any right, power or privilege under any
loan document shall operate as a waiver thereof, and no single or partial
exercise of any right, power or any privilege shall preclude any other and
further exercise thereof or the exercise of any right, power or privilege.
Sincerely,
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
ATTENTION TO ANY DEBTOR IN BANKRUPTCY OR WHO HAS RECEIVED A DISCHARGE IN
BANKRUPTCY OR WHO MAY HAVE PAID, SETTLED OR IS OTHERWISE NOT OBLIGATED: Please
be advised that this letter constitutes neither a demand for payment of the
captioned debt nor a notice of personal liability to any recipient hereof who:
might have received a discharge of such debt in accordance with applicable
bankruptcy laws or who might be subject to the automatic stay of Xxxxxxx 000
xx xxx Xxxxxx Xxxxxx Bankruptcy Code, has paid, settled, or is otherwise not
obligated by law.
cc: ("Special Servicer")
T-2
EXHIBIT U
FORM OF NOTICE OF MONITORING CERTIFICATEHOLDER
[Available upon request of the Trustee]
U-1
EXHIBIT V
FORM OF NOTICE REGARDING PURCHASE OPTION EXERCISE
[Letterhead of Master Servicer]
[Date]
[Option Holder]
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Mortgage Pass-Through Certificates, Series 2001-CIBC2
-------------------------------------------------------
Ladies and Gentlemen:
You are the holder of an assignable option (the "Purchase Option") to
purchase Mortgage Loan number ____ from the Trust Fund, pursuant to Section
6.05 of the pooling and servicing agreement (the "Pooling and Servicing
Agreement") dated as of July 1, 2001, by and among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as depositor, Xxxxx Fargo Bank
Minnesota, N.A., as trustee, First Union National Bank, as special servicer,
and Midland Loan Services, Inc., as master servicer. Capitalized terms used
herein and not otherwise defined shall have the meaning set forth in the
Pooling and Servicing Agreement.
This notice is to inform you that the exercise of your Purchase
Option in respect of Mortgage Loan number ___, pursuant to your Purchase
Option Notice dated _________, a copy of which is attached hereto, is
effective. Pursuant to Section 6.05(a)(v) of the Pooling and Servicing
Agreement and your Purchase Option Notice, closing of [your] [_________'s]
acquisition of Mortgage Loan number ___ shall occur within ten (10) Business
Days of your receipt of this notice, at the place and in the manner described
below.
[Describe closing mechanics. Describe documents or instruments
required to be prepared by Option Holder in connection with assignment and
release of the related Mortgage Loan.]
Upon payment of the Option Price, Mortgage Loan number ___ and the
related Mortgaged Property will be released and the related Mortgage Loan File
will be delivered to [you] [__________] or at [your] [_________'s] direction.
Drafts of such instruments of transfer or assignment, in each case
without recourse, reasonably necessary to vest in [you] or [________] the
ownership of Mortgage Loan ____, together with [describe other documents or
instruments reasonably required to consummate the purchase] should be
delivered to [____________] for review as soon as is practicable.
[Provide Master Servicer contact information.]
Please acknowledge receipt of this letter by signing the enclosed
copy and return it to my attention.
V-1
Sincerely,
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Option Holder's Acknowledgment
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
V-2
EXHIBIT W
FORM OF SPECIAL SERVICER NOTICE PURSUANT TO SECTION 6.12(a)
[SPECIAL SERVICER STATIONERY]
Date
Trustee
Trustee Address
Master Servicer
Master Servicer's address
Master Servicer
Master Servicer's Address
Re: Transfer of Servicing of Mortgage Loan in the Name of
[Mortgagor's Name], Loan [Mortgager's Number]
Dear [Mortgagor]:
Please be advised that the servicing of the above referenced Mortgage Loan
will be returned to ["Master Servicer Name"] as of [Date]. This Mortgage Loan
is being returned for the following reason:
_____ 1. Request from Master Servicer that the Mortgage Loan be
returned based on receipt of information which resulted in
the Mortgage Loan not being considered a Specially Serviced
Mortgage Loan.
_____ 2. The Mortgage Loan is current as to payments of principal
and interest. No Servicing Transfer Event is continuing.
Three Monthly Payments have been made in accordance with the
terms of the related Mortgage Note for the months of [List
Months], [Year].
_____ 3. Other: ___________________________________________________
____________________________________________________________
All capitalized terms, unless otherwise defined, shall have the meanings set
forth in the Servicing Agreement among the above addresses and the
undersigned.
Very truly yours,
Name of Special Servicer Servicing Officer and Title
W-1
EXHIBIT X
FORM OF SPECIAL SERVICER NOTICE PURSUANT TO SECTION 6.12(b)
[SPECIAL SERVICER STATIONERY]
Date
Mortgagor's Name
Mortgagor's Address
Master Servicer's Name
Master Servicer's Address
Re: Transfer of Servicing of Loan in the Name of [Mortgagor's
Name], Loan [Mortgager's Primary ID Number]
Dear Sir or Madam:
Please be advised that the servicing of the above-referenced loan
will be returned to [Master Servicer's Name] for servicing as of the date of
this letter. This loan is being returned to ["Master Servicer's Name"] for
servicing for the following reason:
1. The loan has been current in payments under existing terms
for three consecutive monthly payments.
2. The loan is returned to ["Master Servicer's Name"] based
upon receipt of information which resulted in the loan not
being considered a Specially Serviced Mortgage Loan.
3. The loan has been modified and the three consecutive monthly
payments have been made in accordance with the terms of the
modified mortgage note.
4. Other: _____________________________________________________
____________________________________________________________
Please continue to remit all payments to ["Master Servicer's Name"].
["Master Servicer's Name"] will continue to process your checks and maintain
the accounting records for this loan. Please remember to use the above
["Master Servicer's Name"] Loan Number when communicating with us and making
your payments to ["Master Servicer's Name"].
X-1
Please acknowledge receipt of this letter by signing the enclosed
copy and return it to my attention.
Sincerely,
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
cc: ["Master Servicer's Name"]
Borrower Acknowledgment
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
X-2
EXHIBIT Y
FORM OF REQUEST FOR RELEASE AND RECEIPT OF
DOCUMENTS PURSUANT TO SECTION 11.14
Date
To: Xxxxx Fargo Bank Minnesota, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) Mortgage
Document Custody; re: - X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp.
Series 2001-CIBC2
Re: Pooling and Servicing Agreement, dated as of July 1, 2001, by and
among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as
Depositor, Midland Loan Services, Inc., as Master Servicer, First
Union National Bank, as Special Servicer, and Xxxxx Fargo Bank
Minnesota, N.A., as Trustee.
In connection with the administration of the Mortgage Loans held by
you as the Custodian for the Trustee, we request the release of the (Mortgage
Loan File/[specify documents]) for the Mortgage Loan described below, for the
reason indicated. The undersigned agrees to acknowledge receipt of such
Mortgage Loan File promptly upon receipt.
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number
Reason for Requesting Documents (check one)
_____ 1. Mortgage Loan paid in full. (Servicer hereby certifies that all
amounts received in connection therewith have been credited or will
be escrowed as provided in the Servicing Agreement.)
_____ 2. Mortgage Loan Liquidated. (Servicer hereby certifies that all
proceeds of foreclosure, insurance or other liquidation have been
finally received and credited to or will be escrowed pursuant to the
Servicing Agreement.)
_____ 3. Mortgage Loan in Foreclosure.
_____ 4. Other (explain) __________________________________________________
____________________________________________________________________
Y-1
If item 1 or 2 above is checked, and if all or part of the Mortgage
Loan File was previously released to us, please release to us our previous
receipt on file with you, as well as any additional documents in your
possession relating to the above specified Mortgage Loan. If item 3 or 4 is
checked, upon our return of all of the above documents to you as Custodian,
please acknowledge your receipt by signing in the space indicated below, and
returning this form.
[Servicer]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Date:
---------------------------------------
Documents returned to Custodian:
Xxxxx Fargo Bank Minnesota, N.A.,
as Custodian
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
Y-2
EXHIBIT Z
REO ACCOUNT LETTER PURSUANT TO SECTION 6.09(b)
REO ACCOUNTS REPORT Account #
FROM (DAY AFTER PRIOR PRIMARY REMITTANCE DATE)
TO AND INCLUDING (CURRENT PRIMARY REMITTANCE DATE)
BEGINNING BALANCE $0.00
COLLECTIONS:
-----------
DELINQUENT PAYMENTS $0.00
PAYMENTS FOR CURRENT DUE PERIOD
(Includes net liquidation proceeds & prepayments)
PAYMENTS FOR FUTURE DUE PERIODS $0.00
PRIMARY SERVICER ADVANCES $0.00
LIQUIDATION PROCEEDS - To be applied to servicer Advances $0.00
LATE FEES/PREPAYMENT PREMIUMS $0.00
UNAPPLIED FUNDS $0.00
LOANS IN PROCESS $0.00
INVESTMENT INCOME - Due to Master Servicer $0.00
TOTAL COLLECTIONS $0.00
=====
DISBURSEMENTS:
-------------
TRANSFER TO ESCROW $0.00
SERVICE FEES $0.00
MASTER SERVICER REMITTANCE $0.00
PRINCIPAL ADVANCE REIMBURSEMENTS $0.00
INTEREST ADVANCE REIMBURSEMENTS $0.00
SERVICER ADVANCE REIMBURSEMENTS $0.00
ADVANCE INTEREST (Due and collected) $0.00
INVESTMENT INCOME - Due Master Servicer $0.00
TOTAL DISBURSEMENTS $0.00
=======
REO ACCOUNTS REPORT
FROM (DAY AFTER PRIOR PRIMARY REMITTANCE DATE)
TO AND INCLUDING (CURRENT PRIMARY REMITTANCE DATE) Account #
BEGINNING BALANCE $0.00
COLLECTIONS:
-----------
DELINQUENT PAYMENTS $0.00
PAYMENTS FOR CURRENT DUE PERIOD
(Includes net liquidation proceeds & prepayments)
PAYMENTS FOR FUTURE DUE PERIODS $0.00
PRIMARY SERVICER ADVANCES $0.00
LIQUIDATION PROCEEDS - To be applied to Master Servicer Advan$0.00
LATE FEES/PREPAYMENT PREMIUMS $0.00
UNAPPLIED FUNDS $0.00
Z-1
LOANS IN PROCESS $0.00
INVESTMENT INCOME - Due to Master Servicer $0.00
TOTAL COLLECTIONS $0.00
======
DISBURSEMENTS:
-------------
TRANSFER TO ESCROW $0.00
SERVICE FEES $0.00
MASTER SERVICER REMITTANCE $0.00
PRINCIPAL ADVANCE REIMBURSEMENTS $0.00
INTEREST ADVANCE REIMBURSEMENTS $0.00
SERVICER ADVANCE REIMBURSEMENTS $0.00
ADVANCE INTEREST (Due and collected) $0.00
INVESTMENT INCOME - Due Master Servicer $0.00
TOTAL DISBURSEMENTS $0.00
======
Z-2
EXHIBIT AA
FORM OF CERTIFICATION
PURSUANT TO SECTION 11.04
Date:
Xxxxx Fargo Bank Minnesota, N.A.
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Series 2001-CIBC2
In accordance with the Pooling and Servicing Agreement, dated as of
July 31, 2001 (the "Agreement"), by and among X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp. as Depositor, Midland Loan Services, Inc. as Master
Servicer, First Union National Bank as Special Servicer, and Xxxxx Fargo Bank
Minnesota, N.A. as Trustee (the "Trustee"), with respect to the X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp. Mortgage Pass-Through Certificates,
Series 2001-CIBC2 (the "Certificates"), the undersigned hereby certifies and
agrees as follows:
2. The undersigned is a beneficial owner or prospective purchaser of the Class
__ Certificates.
3. 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 Section 7.03 or such other applicable provision of
the Agreement.
4. 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.
5. 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.
6. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor, the
Trustee and the Trust Fund for any
AA-1
loss, liability or expense incurred thereby with respect to any such breach by
the undersigned or any of its Representatives.
7. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to
be signed hereto by its duly authorized officer, as of the day and year
written above.
_________________________________________
Beneficial Owner or Prospective Purchaser
By: ____________________________________
Title: _________________________________
Company: _______________________________
Phone: _________________________________
AA-2
